Case 1:12-cv-03391-TPG Document 1 Filed 04/30/12 Page 1 of 25 	  

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

PHOEBE BERG, TOSHIRO KIDA, JOHN RIVERA, DAYNA ROZENTAL and JONATHAN JETTER, individually and on behalf of a class of all others similarly situated,

12 Civ. 3391 (TPG)
CLASS ACTION COMPLAINT

Plaintiffs,

ECF CASE

-against-
NEW YORK CITY POLICE COMMISSIONER RAYMOND KELLY; CHIEF OF NEW YORK CITY POLICE DEPARTMENT JOSEPH ESPOSITO; NEW YORK CITY POLICE DEPARTMENT OFFICERS/ SERGEANTS YESENIA AYALA, Sh. No. 13587; BRENDA BATCHER, Sh. No. 18825; MATHEW BETTING, Sh. No. 12343; CYNTHIA BOYLE, Sh. No. 6663; STEPHEN CAROLAN, Sh. No. 6693; MICHAEL CASALE, Sh. No. 30092; CHRISTOPHER CLARK, Sh. No. 30815; NATHAN COLLINS, Sh. No. 11773; FRANCISCO COSTA, Sh. No. 20660; JESSE COTTON, Sh. No. 1178; CHRIS DEFEO, Sh. No. 19936; JOSEPH DIAZ, Sh. No. 4744; THANYA DUHANEY, Shield No. 5584; JEANETTE FIUEROU, Sh. No. 6040; DEBORAH GARBUTT, Sh. No. 29583; JAMES GATTO, Sh. No. 27905; MATTHEW GRESSWELL, Sh. No. 10994; STEPHEN MAZZARD, Sh. No. 31071; MICHAEL RODER, Sh. No. 25253; DOUGLAS SHEEHAN, Sh. No. 26759; DIXON SU, Sh. No. 7680; PETER VOLAIRE, Sh. No. 27518; JOHN DOES 1-10 (whose identities are currently unknown but who are known to be police officers and/or supervisory personnel of the New York City Police Department); in their individual and official capacities,

JURY TRIAL DEMANDED

Defendants. -----------------------------------------------------------------------X

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Plaintiffs PHOEBE BERG (“Berg”), TOSHIRO KIDA (“Kida”), JOHN RIVERA (“Rivera”), DAYNA ROZENTAL (“Rozental”), and JONATHAN JETTER (“Jetter”), individually and on behalf of a class of all others similarly situated (collectively, “Plaintiffs”), by their attorneys Rankin & Taylor PLLC and Beldock Levine & Hoffman LLP, hereby allege for their complaint against the defendants as follows:
PRELIMINARY STATEMENT 1. In this civil rights class action against police officers of the New York City Police Department (the “NYPD”), Berg, Kida, Rivera, Rozental and Jetter, individually and on behalf of a class of all others similarly situated, seek damages and injunctive relief pursuant to 42 U.S.C. § 1983 to redress violations of the First, Fourth, and Fourteenth Amendments to the United States Constitution and the constitution of the State of New York. 2. These violations occurred when, on November 30, 2011, Plaintiffs sought to demonstrate in affiliation with the Occupy Wall Street (“OWS”) movement and the NYPD without any reason or cause detained them for nearly two hours inside an interlocking metal barricade. The NYPD prohibited Plaintiffs from exiting the pen because they were OWS demonstrators, while permitting tourists and journalists to leave. Plaintiffs, numbering between 70 and 120 people, were never charged with any violation, misdemeanor, or crime. 3. The NYPD’s actions violated a provision of the NYPD Patrol Guide mandated by order of the Honorable Robert Sweet, United States District Judge for the Southern District of New York, in Stauber v. City of New York, 03 Civ. 9163, dated March 31, 2008 (annexed to this Complaint as Exhibit 1), which states:
Barrier configuration for demonstrations should not unreasonably restrict access to and participation in the event. For example, attendees should be permitted to leave a barricaded area at any
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time. In addition, if crowd conditions and other circumstances permit, participants should be permitted to leave and return to the same area. Sufficient openings in the barricades should be maintained for purpose of permitted attendees to leave expeditiously and return to the event as described in this paragraph. 4. Defendants violated Plaintiffs’ clear and established constitutional rights, including their rights to freedom of speech, freedom of association, freedom of assembly, and freedom from unreasonable seizure. 5. Berg, Kida, Rivera, Rozental and Jetter are New Yorkers who have voiced their support for change in the past and who have plans to demonstrate in New York City in association with OWS in the coming months. As a result of Defendants’ acts and omissions under the color of state law and in the scope of their employment with the NYPD, including their violation of an express court order, Plaintiffs’ First Amendment rights have been chilled and there is a real and immediate threat that their constitutional rights will be violated by the NYPD again. 6. By this action, Plaintiffs seek redress for the violations of their constitutional and civil rights and to recover damages they suffered as a result of this incident. Plaintiffs further seek an order enjoining the NYPD from unlawful use of barricades and compelling the NYPD to comply with court orders restricting the use of pens.
JURISDICTION AND VENUE 7. This Court has subject matter jurisdiction over federal claims pursuant to 28 U.S.C. §§ 1331, 1343 (3-4). 8. This action is brought pursuant to 42 U.S.C. §§ 1983 and 1988 for violations of Plaintiffs’ rights under the First, Fourth and Fourteenth Amendments of the United States Constitution.
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9. Venue is proper pursuant to 28 U.S.C. §1391(b) in that Plaintiffs’ claims arose in the Southern District of New York.
PARTIES Named Plaintiffs 10. Plaintiff BERG is a resident of Kings County in the State of New York. Berg has worked as a legal archivist at the New School for Social Research for the past six years. She is involved in OWS working groups and has attended more than a dozen demonstrations since November 30, 2011. 11. Plaintiff KIDA is a resident of Kings County in the State of New York. Kida works part-time for Occucopy, a collective that provides printing for OWS activities and other First Amendment actions. 12. Plaintiff RIVERA is a resident of Kings County in the State of New York. Rivera has been active in demonstrations for approximately 30 years and has attended at least 100 actions. Rivera is a receptionist at the State University of New York College of Optometry at Times Square, where he has been employed for over twenty years. He is a member of the Civil Service Employees Association, a leading New York union. He writes a blog about his OWS activities. 13. Plaintiff ROZENTAL is a resident of Nassau Count in the State of New York. She lives with her parents and brother in West Hempstead, New York. Rozental has been active in demonstrations for the past three years. She has been working at a midtown based legal search firm for the past five years. Rozental is actively involved in OWS activities: she helped set up an outdoor kitchen in Zuccotti Park when activities centered there and plans to help serve breakfast on May Day at an OWS action in Bryant Park.
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14. Plaintiff JETTER is a resident of Queens County in the State of New York. He is a professor at the State University of New York, Purchase College, and the owner of a business based in midtown Manhattan. Jetter is actively involved to the OWS movement.
Defendants 15. Defendant RAYMOND KELLY (“Commissioner Kelly”) is and was, at all times relevant herein, the NYPD Commissioner and is responsible, in whole and/or in part, for the creation, implementation, promulgation and enforcement of the actions, policies, practices and/or customs complained of herein. He is sued in both his individual and official capacity. 16. Defendant JOSEPH ESPOSITO (“Chief Esposito”) is and was at all times the Chief of the NYPD Department and is responsible, in whole and/or in part, for the creation, implementation, promulgation and enforcement of the policies, practices and/or customs complained of herein. He is sued in both his individual and official capacity. 17. Defendant JOHN DOE 1 is or was at all relevant times a police officer and/or sergeant with the NYPD, and was the incident commander on November 30, 2011, at the demonstration described herein. 18. Defendant YESENIA AYALA, Shield Number 13587, is or was at all relevant times a police officer with the NYPD. Officer Ayala is sued individually and in his/her official capacity. 19. Defendant BRENDA BATCHER, Shield number 18825, is or was at all relevant times a police officer with the NYPD. Officer Batcher is sued individually and in her official capacity.
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20. Defendant MATTHEW BETTING, Shield Number 12343, is or was at all relevant times a police officer with the NYPD. Officer Betting is sued individually and in his official capacity.
21. Defendant CYNTHIA BOYLE, Shield Number 6663, is or was at all relevant times a police officer with the NYPD. Officer Boyle is sued individually and in her official capacity.
22. Defendant STEPHEN CAROLAN, Shield Number 6693, is or was at all relevant times a police officer with the NYPD. Officer Carolan is sued individually and in his official capacity.
23. Defendant MICHAEL CASALE, Shield Number 30092, is or was at all relevant times a police officer with the NYPD. Officer Casale is sued individually and in his official capacity.
24. Defendant CHRISTOPHER CLARK, Shield Number 30815, is or was at all relevant times a police officer with the NYPD. Officer Clark is sued individually and in his official capacity.
25. Defendant NATHAN COLLINS, Shield Number 11773, is or was at all relevant times a police officer with the NYPD. Officer Ayala is sued individually and in his official capacity.
26. Defendant FRANCISCO COSTA, Shield Number 20660, is or was at all relevant times a police officer with the NYPD. Officer Costa is sued individually and in his official capacity.
27. Defendant JESSE COTTON, Shield Number 1178, is or was at all relevant times a police officer with the NYPD. Officer Cotton is sued individually and in his official capacity.
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28. Defendant CHRIS DEFEO, Shield Number 19936, is or was at all relevant times a police officer with the NYPD. Officer Defeo is sued individually and in his/her official capacity.
29. Defendant JOSPEH DIAZ, Shield Number 4744, is or was at all relevant times a police officer with the NYPD. Officer Diaz is sued individually and in his official capacity.
30. Defendant THANYA DUHANEY, Shield number 5584, is or was at all relevant times a police officer with the NYPD. Officer Duhaney is sued individually and in her official capacity.
31. Defendant JEANETTE FIUEROU, Shield Number 6040, is or was at all relevant times a police officer with the NYPD. Officer Fiuerou is sued individually and in her official capacity.
32. Defendant DEBORAH GARBUTT, Shield Number 29583, is or was at all relevant times a police officer with the NYPD. Officer Garbutt is sued individually and in her official capacity.
33. Defendant JAMES GATTO, shield Number 27905, is or was at all relevant times a police officer with the NYPD. Officer Gatto is sued individually and in his official capacity.
34. Defendant MATTHEW GRESSWELL, Shield Number 10994, is or was at all relevant times a police officer with the NYPD. Officer Greswell is sued individually and in his official capacity.
35. Defendant STEPHEN MAZZARD, Shield Number 31071, is or was at all relevant times a police officer with the NYPD. Officer Mazzard is sued individually and in his official capacity.
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36. Defendant MICHAEL RODER, Shield Number 25253, is or was at all relevant times a police officer with the NYPD. Officer Roder is sued individually and in his official capacity.
37. Defendant DOUGLAS SHEEHAN, Shield Number 26759, is or was at all relevant times a police officer with the NYPD. Officer Sheehan is sued individually and in his official capacity.
38. Defendant DIXON SU, Shield Number 7680, is or was at all relevant times a police officer with the NYPD. Officer Su is sued individually and in his official capacity.
39. Defendant PETER VOLAIRE, Shield Number 27518, is or was at all relevant times a police officer with the NYPD. Officer Volaire is sued individually and in his official capacity.
40. JOHN DOES 2-50, are or were at all relevant times police officers and/or sergeants with the NYPD. Upon information and belief, John Does 1-50 include officers with surnames Malone, Maryolo, Wagner, Purtell, Tuller, and McNevin, and/or Shield Numbers 31420, 6299, 28579, 11980, 2987, 978, and 9998. John Does 1-50 are sued in their individual and official capacities
41. At all times relevant herein, the named individual defendants and the unnamed John Doe defendants (collectively “Defendants”) were acting under color of state law in the course and scope of their duties and functions as agents, servants, employees and officers of the NYPD, and otherwise performed and engaged in conduct incidental to the performance of their lawful functions in the course of their duties. Defendants were acting for and on behalf of the NYPD at all times relevant herein, with the power and authority vested in them as officers,
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agents and employees of the NYPD and incidental to the lawful pursuit of their duties as officers,
employees and agents of the NYPD.
42. At all times relevant herein, Defendants violated clearly established constitutional
standards under First, Fourth, and Fourteenth Amendments of which a reasonable police officer
and/or public official under their respective circumstances would have known.
43. Defendants’ acts hereafter complained of were carried out intentionally,
recklessly, with malice and/or gross disregard for Plaintiffs’ rights.
FACTUAL ALLEGATIONS
44. On March 31, 2008, the Honorable Robert Sweet, United States District Judge for
the Southern District of New York, so-ordered a stipulation entered into and agreed to by the
City of New York (the “City”) in the case captioned Ann Stauber and the New York Civil
Liberties Union v. the City of New York, et al., 03 Civ. 9162 (the “Stauber Settlement and
Order”) (Ex. A hereto).
45. The Stauber Settlement and Order arose from actions brought against the City,
among others, asserting, inter alia, that the NYPD’s policy and/or practice of using interlocking
metal barricades, or “pens,” to confine demonstrators in fixed locations violated the Constitution.
46. In the Stauber Settlement and Order, the City agreed to insert in the NYPD Patrol
Guide the following:
Note: In cases in which the special event is a demonstration, information on expected street and sidewalk closings and information on how the public may access a demonstration site will be disseminated to the media and to event organizers and should, if possible, be posted on the Department’s website. Officers assigned to such events should be given detailed instructions on such closings and points of access prior to assignment. Detail supervisors should also be advised of street closures and points of access and any changes of points of access which occur during the event and which were not previously
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anticipated and publicized. Officers assigned to such events shall provide information to the public at the event about a available points of access.
47. In the Stauber Settlement and Order, the City agreed to insert in the NYPD Patrol
Guide the following:
Barrier configuration for demonstrations should not unreasonably restrict access to and participation in the event. For example, attendees should be permitted to leave a barricaded area at any time. In addition, if crowd conditions and other circumstances permit, participants should be permitted to leave and return to the same area. Sufficient openings in the barricades should be maintained for purpose of permitted attendees to leave expeditiously and return to the event as described in this paragraph.
48. Commissioner Kelly was a party to the Stauber Settlement and Order.
A Demonstration for the President, November 30, 2011
49. Upon information and belief, on November 30, 2011, President Barak Obama
attended a fundraiser dinner at the Sheraton Hotel (the “Hotel”) in New York, New York.
50. At approximately 8:00 p.m., about 100 people affiliated with OWS events,
including Berg, Kida, Rivera, Rozental, and Jetter, sought to demonstrate in front of the Hotel
while the President arrived for the fundraiser dinner.
51. Plaintiffs sought to demonstrate near the President and the media covering the
President’s event at the Hotel.
52. Berg, Kida, Rivera, Rozental, Jetter, and others walked to the Hotel in a group.
53. Plaintiffs carried signs with the intention of sharing messages with the President
and the media covering the President’s event. Kida carried a sign that said, “Get money out of
politics.” Berg carried a sign protesting the National Defense Authorization Act. 54. The Hotel is located on the eastern side of Seventh Avenue between 52nd and 53rd 10

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Streets.

55. When Berg, Kida, Rivera, Rozental and Jetter attempted to approach the Hotel,

they found that the NYPD had erected a barricade with interlocking metal fences approximately three-feet tall on Seventh Avenue, across the street from the Hotel at the southwest corner of 53rd

Street. 56.

The barricade created a “U” shape that extended west on 53rd Street toward

Broadway for approximately 100 feet, such that there was an opening into and out of the barricade area on 53rd street between Seventh Avenue and Broadway.

57. The barricades that made up the “U” were locked when Berg, Kida, Rivera,

Rozental and Jetter arrived.

58. Defendants told Berg, Kida, Rivera, Rozental and Jetter in sum or substance that

the only place they could stand was inside this locked “U” configuration of barricades.

59. Berg, Kida, Rivera, Rozental, Jetter and others moved into the center of the “U”-

shaped configuration and waited for the President to arrive.

60. Because of the configuration of the barricade, it was not possible for the

demonstrators to get any closer to the Hotel entrance or the media covering the President’s visit.

61. Sanitation trucks blocked the view from the Hotel entrance to the barricaded area.

62. At approximately 8:30 p.m., Berg, Kida, Rivera, Rozental, and Jetter moved into

the NYPD barricades toward the east side, i.e., closer to the Hotel, in order to be as close as

possible to the President when he arrived.

63. At approximately 8:41 p.m., Defendants brought barricades from further west on 53rd Street and closed the opening of the barricaded area, turning the “U” shaped barricade into a

rectangular confined area or pen.

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64. Upon information and belief, pursuant to customary practice, Chief Esposito’s office would have to receive notice of and give consent for the closing of the pen.
65. Defendants told Plaintiffs in sum or substance that they were not permitted to exit the pen.
66. One Defendant, in sum and substance, told Jetter that he was not free to leave and that he would be arrested if he attempted to leave the pen. Upon information and belief, other Plaintiffs were told the same.
67. Defendants prevented the Plaintiffs from exiting the pen. 68. For example, Rivera, Jetter and others attempted to leave the pen at 9:15 p.m. after learning that the President had arrived and entered the Hotel, but were prohibited from doing so by Defendants. 69. Plaintiffs were held in the pen for nearly two hours. 70. During that time, Plaintiffs who sought to leave the pen were prohibited from doing so by Defendants. 71. Defendants prohibited Plaintiffs from exiting the pen for any reason. 72. Defendants prohibited Plaintiffs from exiting the pen to use the restroom or to get food. 73. Plaintiffs who became ill were only able to leave the pen when taken by an ambulance. 74. For example, one demonstrator, Lisa Rubenstein, who felt ill inside the pen, was taken away by ambulance only after fainting inside the closed pen. 75. Jetter, who was feeling too sick to remain at the demonstration, was forced to stay despite a fever.
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76. During the time that Plaintiffs were trapped in the pen, traffic was moving freely on Seventh Avenue.
77. During the time that Plaintiffs were trapped in the pen, pedestrians were moving freely on Seventh Avenue and 53rd Street, on the north and east corners of the intersection.
78. At approximately 10:26 p.m., nearly two hours after the pen was initially closed off and nearly two hours after Plaintiffs were trapped by Defendants inside the pen, the barricades were removed from the west side of the pen.
79. Upon information and belief, Plaintiffs were treated differently than others at the same intersection at the same time.
80. Defendants told Berg, Kida, Rivera, Rozental, and Jetter in sum or substance that they were being held because they were protestors.
81. Upon information and belief, tourists who were trapped in the pen were permitted to exit the pen while demonstrators were held.
82. Upon information and belief, journalists were permitted to exit the pen while demonstrators were held. For example, upon information and belief, Josh Robin from NY 1 was released from the pen at 9:10 p.m., upon his request.
83. Upon information and belief, legal observers and members of the press were unable to enter the pen and access Plaintiffs. For example: legal observer Tamara Bedic could not get any closer to the demonstrators than the corner of Broadway and 53rd Streets; journalists Josh Harkinson (Mother Jones), Meg Robertson (MSNBC) and Andrew Katz (Brooklyn Ink), were not allowed to approach the pen on foot from the West; when Mr. Harkinson and Mr. Katz were later able to approach by taking a cab south on 7th Avenue, they were escorted away from the area when they began talking to demonstrators in the pen.
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84. Berg, Kida, Rivera, Rozental and Jetter were not charged with any violation, misdemeanor or crime.
85. Upon information and belief, none of the Plaintiffs was charged with any violation, misdemeanor, or crime.
86. Upon information and belief, Plaintiffs were held in the pen because of their affiliation with the OWS movement.
87. Berg, Kida, Rivera, Rozental, and Jetter are active in the OWS movement and have plans to attend demonstrations affiliated with OWS in New York City the next few months.
88. Plaintiffs have avoided demonstrations after the November 30, 2011, incident for fear of becoming trapped in an NYPD erected pen. For example, Berg did not attend a demonstration she would have otherwise attended at another presidential fundraiser, and abandoned demonstrations where NYPD appeared with barricade fences, due to fear of being trapped in such a pen again.
CLASS ACTION ALLEGATIONS 89. Pursuant to Rule 23(a) and (b)(3) of the Federal Rules of Civil Procedure, Berg, Kida, Rivera, Rozental, and Jetter seek to represent persons who were detained in the pen erected by the NYPD at Seventh Avenue and 53rd Street on the evening of November 30, 2011. 90. The members of the class, believed to number between 70 and 120, are so numerous as to render joinder impracticable. Berg, Kida, Rivera, Rozental, and Jetter currently have information identifying at least 47 class members. 91. In addition, joinder is impracticable because many members of the class live outside of New York State and some live outside of the United States. Moreover, many class members who have been victimized by the defendants’ unconstitutional policies and practices
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may not bring individual claims. There is no adequate avenue for the protection of the class members’ constitutional rights other than a class action.
92. The class members share a number of questions of law and fact in common, including but not limited to the following:
i. Whether interlocking barricades were erected and maintained on the evening of November 30, 2011 in a manner that amounted to an unlawful seizure in contravention of the Fourth Amendment.
ii. Whether interlocking barricades were erected and maintained on the evening of November 30, 2011 in a way that constituted an unreasonable restriction on speech in contravention of the First Amendment.
iii. Whether the NYPD targeted the Plaintiffs on November 30, 2011, because of their perceived association with OWS in violation of the equal protection clause of the Fourteenth Amendment.
93. These common questions of fact and law all flow from the same policies, enacted by the same defendants, and implemented by the same named and unnamed defendants.
94. The claims of the named plaintiffs are typical of those of the class in that, inter alia, at the time their constitutional rights were violated, they were engaging and attempting to engage in activities protected by the First Amendment and they were treated by the NYPD in the same manner as members of the class, resulting in violations of their First, Fourth and Fourteenth Amendment rights under the United States Constitution.
95. The named plaintiffs have a strong personal interest in the outcome of this action, have no conflicts of interest with members of the plaintiff class, and will fairly and adequately protect the interests of the class. Moreover, the named plaintiffs reside in the New York area and
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intend to continue to participate in demonstrations in New York City, where the defendants’ unconstitutional policies, practices and customs are implemented, and therefore remain at high risk of being unconstitutionally harmed in the future pursuant to these policies, practices and customs.
96. The named plaintiffs are represented by the undersigned counsel, civil rights lawyers with experience litigating a wide range of civil rights and class action lawsuits.
i. RANKIN & TAYLOR PLLC has broad civil rights experience from litigating matters in numerous contexts. The firm handles a strong ongoing police misconduct docket in both state and federal court. They have also won significant victories in the employment context. In addition to individual plaintiff actions, RANKIN & TAYLOR, in partnership with two solo practitioners, handled a mass action of over 80 plaintiffs arrested during the NYPD's crackdown on Critical Mass bike rides, Callaghan v. City of New York, 07-cv-9611, and has litigated several other multiple plaintiff matters over public assembly issues, property confiscations, and wage and hour violations. The firm's eight attorneys represent significant experience and resources in handling complex actions.
ii. Beldock Levine & Hoffman LLP, a New York law firm founded in 1964 with an extensive civil and criminal practice that has handled police misconduct and constitutional litigation for almost thirty years, has extensive experience litigating civil rights cases and class action lawsuits. Representative civil rights cases in which Beldock Levine & Hoffman LLP has acted as class counsel include: MacNamara, et al., v. the City of New York, 04 Civ. 09216 16

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(S.D.N.Y.) (RJS)(JCF) (challenging the arrest and detention of demonstrators at the 2004 Republican National Convention, recently granted class status); Daniels v. New York, 99 Civ. 1695 (S.D.N.Y.) (SAS) (challenging the City’s policy and practice of suspicionless and race-based stops and frisks); Burley et al. v. City of New York, et al., 03 Civ. 735 (S.D.N.Y.) (Pauley, J.) (challenging excessive detention of demonstrators arrested for minor offenses during the 2002 World Economic Forum). 97. Counsel for the plaintiffs have the resources, expertise, and experience to prosecute this action. Counsel for the plaintiffs know of no conflicts among members of the class or between the attorneys and members of the class. 98. A class action is superior to other available methods for the fair and efficient adjudication of this controversy. The class is readily defined and prosecution of a class action will eliminate the possibility of repetitious litigation, while also providing redress for claims which may not be large enough to warrant the expense of individual litigation. 99. All named plaintiffs and class members were victimized by the same policies, practices, customs and/or conduct and thus common questions of law and fact greatly predominate over any questions affecting only individual members, including legal and factual issues relating to damages. 100. The plaintiff class should be certified pursuant to Rule 23(a) and (b)(3) because questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.
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FIRST CAUSE OF ACTION PURSUANT TO 42 U.S.C. § 1983 DEPRIVATION OF FIRST AMENDMENT RIGHTS UNDER THE UNITED STATES CONSTITUTION 101. Plaintiffs reiterate paragraph 1 through 100 and incorporate such by reference herein. 102. By the acts alleged herein, Defendants, acting under color of state law and in their individual and official capacities and within the scope of their employment, have deprived each and every plaintiff and members of the plaintiff class of rights, remedies, privileges and immunities guaranteed to every citizen of the United States, in violation of rights guaranteed by the First and Fourteenth Amendments of the United States Constitution and 42 U.S.C. § 1983, including but not limited to their right to freedom of speech, freedom of association, and freedom of assembly. 103. As a direct and proximate result of the misconduct described above, each and every plaintiff and members of the plaintiff class of those detained on November 30, 2011, have suffered injury and damages including, inter alia, physical and mental pain, suffering and mental anguish. 104. Because Defendants, acting under color of state law, in their individual and official capacities and within the scope of their employment, detained demonstrators perceived to be affiliated with OWS in pens built out of interlocking metal barricades contrary to express court order and the NYPD Patrol Guide, because this activity has already chilled Plaintiffs from exercising their First Amendment rights, and because Plaintiffs have plans to demonstrate at upcoming OWS affiliated events in New York City, a real and immediate threat exists that Plaintiffs’ First Amendment rights by the NYPD in the future. Plaintiffs have no adequate remedy at law and will suffer serious and irreparable harm to their constitutional rights unless
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Defendants are enjoined from further violating the Stauber Settlement and Order. 105. As a direct and proximate result of the misconduct described above, each and
every plaintiff and members of the plaintiff class of those who seek to demonstrate in New York City, will continue to suffer injury and damages including, inter alia, physical and mental pain, suffering and mental anguish.
SECOND CAUSE OF ACTION PURSUANT TO 42 U.S.C. § 1983 DEPRIVATION OF FOURTH AMENDMENT RIGHTS UNDER THE UNITED STATES CONSTITUTION 106. Plaintiffs reiterate paragraph 1 through 105 and incorporate such by reference herein. 107. By the acts alleged herein, Defendants, acting under color of state law and in their individual and official capacities and within the scope of their employment, have deprived each and every plaintiff and members of the plaintiff class of rights, remedies, privileges and immunities guaranteed to every citizen of the United States, in violation of rights guaranteed by the Fourth and Fourteenth Amendments of the United States Constitution and 42 U.S.C. § 1983, including without limitation unreasonable seizure. 108. As a direct and proximate result of the misconduct described above, each and every plaintiff and members of the plaintiff class of those detained on November 30, 2011, have suffered injury and damages including, inter alia, physical and mental pain, suffering and mental anguish. 109. Because Defendants, acting under color of state law, in their individual and official capacities and within the scope of their employment, detained demonstrators perceived to be affiliated with OWS in pens built out of interlocking metal barricades contrary to express court order and the NYPD Patrol Guide, and because Plaintiffs have plans to demonstrate at
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upcoming OWS affiliated events in New York City, a real and immediate threat exists that Plaintiffs’ Fourth Amendment rights by the NYPD in the future. Plaintiffs have no adequate remedy at law and will suffer serious and irreparable harm to their constitutional rights unless Defendants are enjoined from further violating the Stauber Settlement and Order.
110. As a direct and proximate result of the misconduct described above, each and every plaintiff and members of the plaintiff class of those who seek to demonstrate in New York City, will continue to suffer injury and damages including, inter alia, physical and mental pain, suffering and mental anguish.
THIRD CAUSE OF ACTION PURSUANT TO 42 U.S.C. § 1983 DEPRIVATION OF FOURTHEENTH AMENDMENT RIGHTS TO EQUAL PROTECTION OF THE LAW UNDER THE UNITED STATES CONSTITUTION 111. Plaintiffs reiterate paragraph 1 through 110 and incorporate such by reference herein. 112. By the acts alleged herein, Defendants, acting under color of state law and in their individual and official capacities and within the scope of their employment, have deprived each and every plaintiff and members of the plaintiff class of rights, remedies, privileges and immunities guaranteed to every citizen of the United States, in violation of rights guaranteed by the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and 42 U.S.C. § 1983. 113. As a direct and proximate result of the misconduct described above, each and every plaintiff and members of the plaintiff class of those detained on November 30, 2011, have suffered injury and damages including, inter alia, physical and mental pain, suffering and mental anguish.
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Case 1:12-cv-03391-TPG Document 1 Filed 04/30/12 Page 21 of 25 	  
114. Because Defendants, acting under color of state law, in their individual and official capacities and within the scope of their employment, detained demonstrators perceived to be affiliated with OWS in pens built out of interlocking metal barricades contrary to express court order and the NYPD Patrol Guide, because this activity has already chilled Plaintiffs from exercising their First Amendment rights, and because Plaintiffs have plans to demonstrate at upcoming OWS affiliated events in New York City, a real and immediate threat exists that Plaintiffs’ First Amendment rights by the NYPD in the future. Plaintiffs have no adequate remedy at law and will suffer serious and irreparable harm to their constitutional rights unless Defendants are enjoined from further violating the Stauber Settlement and Order.
115. As a direct and proximate result of the misconduct described above, each and every plaintiff and members of the plaintiff class of those who seek to demonstrate in New York City, will continue to suffer injury and damages including, inter alia, physical and mental pain, suffering and mental anguish.
FOURTH CAUSE OF ACTION PURSUANT TO 42 U.S.C. § 1983 DEPRIVATION OF FOURTEENTH AMENDMENT RIGHTS TO DUE PROCESS UNDER THE UNITED STATES CONSTITUTION 116. Plaintiffs reiterate paragraph 1 through 115 and incorporate such by reference herein. 117. By the acts alleged herein, Defendants, acting under color of state law and in their individual and official capacities and within the scope of their employment, have deprived each and every plaintiff and members of the plaintiff class of rights, remedies, privileges and immunities guaranteed to every citizen of the United States, in violation of rights guaranteed by the Due Process Clause of the Fourteenth Amendment of the United States Constitution and 42 U.S.C. § 1983.
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Case 1:12-cv-03391-TPG Document 1 Filed 04/30/12 Page 22 of 25 	  
118. As a direct and proximate result of the misconduct described above, each and every plaintiff and members of the plaintiff class of those detained on November 30, 2011, have suffered injury and damages including, inter alia, physical and mental pain, suffering and mental anguish.
119. Because Defendants, acting under color of state law, in their individual and official capacities and within the scope of their employment, detained demonstrators perceived to be affiliated with OWS in pens built out of interlocking metal barricades contrary to express court order and the NYPD Patrol Guide, because this activity has already chilled Plaintiffs from exercising their First Amendment rights, and because Plaintiffs have plans to demonstrate at upcoming OWS affiliated events in New York City, a real and immediate threat exists that Plaintiffs’ First Amendment rights by the NYPD in the future. Plaintiffs have no adequate remedy at law and will suffer serious and irreparable harm to their constitutional rights unless Defendants are enjoined from further violating the Stauber Settlement and Order.
120. As a direct and proximate result of the misconduct described above, each and every plaintiff and members of the plaintiff class of those who seek to demonstrate in New York City, will continue to suffer injury and damages including, inter alia, physical and mental pain, suffering and mental anguish.
FIFTH CAUSE OF ACTION FAILURE TO INTERVENE TO PREVENT VIOLATIONS OF FIRST, FOURTH, AND FOURTEENTH AMENDMENTS THROUGH 42 U.S.C. § 1983 121. Plaintiffs reiterate paragraph 1 through 120 and incorporate such by reference herein. 122. Members of the NYPD have an affirmative duty to assess the constitutionality of interactions between their fellow members of service and civilians and to intervene where they
22

Case 1:12-cv-03391-TPG Document 1 Filed 04/30/12 Page 23 of 25 	  
observe another member of the Police Department or other law enforcement agency falsely arresting a civilian.
123. Defendants were present for the above-described incident and witnessed other officer-defendants unlawfully detain and/or seize and/or arrest Plaintiffs.
124. Defendants’ detention of plaintiffs was unjustified under the circumstances yet Defendants failed to take any action or make any effort to intervene, halt or protect the plaintiffs from being unlawfully detained.
125. Defendants violated Plaintiffs’ constitutional rights by failing to intervene in other defendants’ clearly unconstitutional arrests, resulting in injury and damages including, inter alia, physical and mental pain, suffering and mental anguish.
SIXTH CAUSE OF ACTION VIOLATIONS OF THE NEW YORK STATE CONSTITUTION 126. Plaintiffs repeat and re-allege paragraphs 1 through 123 as if fully set forth herein. 127. Defendants subjected Plaintiffs to the foregoing acts and omissions without due process of law, thereby depriving Plaintiffs of rights, privileges, and immunities secured by Article 1, §§ 8, 9, 11, and 12 of the New York State Constitution, including, without limitation, the following deprivations of his rights, privileges, and immunities: i. Plaintiffs were deprived of freedom of speech, in violation of New York State Constitution Article 1, § 1; ii. Plaintiffs were deprived of freedom of assembly and petition, in violation of New York State Constitution Article 1, § 8; iii. Plaintiffs were deprived of his right to equal protection under the law and was subjected to discrimination based on their perceived political opinion, in violation of New York State Constitution Article 1, § 11; and
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Case 1:12-cv-03391-TPG Document 1 Filed 04/30/12 Page 24 of 25 	  
Plaintiffs were deprived of their right to be free from unreasonable searches and seizures, in violation of New York State Constitution Article 1, § 12. WHEREFORE, Plaintiffs respectfully request that this Court:
I. Enter an order certifying this action as a class action pursuant to Fed. R. Civ. P. 23(a), (b)(2) and (b)(3) for the plaintiff class described herein and naming plaintiffs as the class representatives;
II. Enter a judgment declaring that Defendants’ actions on November 30, 2011, were unconstitutional;
III. Issue an order enjoining Defendants’ from discouraging peaceful protest; IV. Issue an order compelling Defendants to comply with Section 213-11,
21(h)(3) of the New York Police Department Patrol Guide, which, following the Stipulation of Settlement and Order of Judge Sweet in Stauber v. City of New York, 03-cv-9163 (March 31, 2008), states,
Barrier configuration for demonstrations should not unreasonably restrict access to and participation in the event. For example, attendees should be permitted to leave a barricaded area at any time. In addition, if crowd conditions and other circumstances permit, participants should be permitted to leave and return to the same area. Sufficient openings in the barricades should be maintained for purpose of permitted attendees to leave expeditiously and return to the event as described in this paragraph; V. Award Plaintiffs damages in an amount to be determined at trial; VI. Award Plaintiffs punitive damages in an amount to be determined at trial; VII. Award Plaintiffs reasonable attorneys fees and costs as authorized pursuant to 42 U.S.C. § 1988; and
24

Case 1:12-cv-03391-TPG Document 1 Filed 04/30/12 Page 25 of 25 	  
VIII. Grant such other further and different relief as to the Court may seem just and proper.

Dated: New York, New York April 30, 2012

Respectfully submitted,

By: /s/
David B. Rankin Paula Z. Segal, J.D. Rankin & Taylor PLLC 350 Broadway, Suite 701 New York, New York 10013 212-226-4507
Jonathan C. Moore Jenn Rolnick Borchetta Beldock Levine & Hoffman LLP 99 Park Avenue, Suite 1600 New York, NY 10016 (212) 490-0400
Attorney for the Plaintiffs

25

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

---------------------------------------------x

:

PHEOBE BERG, TOSHIRO KIDA, JOHN :

RIVERA, DANYA ROZENTAL and

:

JOHNATHAN JETTER, individually and :

on behalf of a class of all others similarly :

situated,

:

:

Plaintiffs,

:

:

– against –

:

:

NEW YORK CITY POLICE

:

COMMISSIONER RAYMOND KELLY,

:

CHIEF OF NEW YORK CITY POLICE

:

DEPARTMENT JOSEPH ESPOSITO, et :

al.,

:

:

Defendants. :

---------------------------------------------x

12 Civ. 3391 (TPG) OPINION

Plaintiffs bring this class action complaint alleging that officers of the New York City Police Department (“NYPD”) violated plaintiffs’ rights under the First, Fourth, and Fourteenth Amendments of the United States Constitution and their rights under the Constitution of the State of New York. The alleged violations occurred on November 30, 2011. Plaintiffs attended a protest as part of the Occupy Wall Street movement, and NYPD officers allegedly refused to allow plaintiffs to exit a barricaded area for approximately two hours. On March 6, 2013, defendants moved for judgment on the pleadings for failure to state a claim and failure to fulfill conditions precedent to suit.
Defendants’ motion to dismiss is denied.

The Complaint Plaintiffs Phoebe Berg, Toshiro Kida, John Rivera, Dayna Rozental, Jonathan Jetter, and others similarly situated are protesters affiliated with the Occupy Wall Street movement. Defendants are named and unnamed NYPD officers, including Police Commissioner Raymond Kelly and Chief of the New York City Police Department Joseph Esposito. At 8:00 p.m. on November 30, 2011, plaintiffs attended a demonstration with approximately 100 other protestors outside the Sheraton Hotel, located on Seventh Avenue between 52nd and 53rd Street. Plaintiffs chose this time and place for their demonstration because they knew that President Obama planned to attend a fundraising event at the hotel that evening. Defendants erected barricades in a “U” shape across the street from the Sheraton Hotel at the southwest corner of 53rd Street. The barricade extended west on 53rd Street toward Broadway for approximately 100 feet, creating an opening for entry and exit on 53rd Street. When plaintiffs arrived, NYPD officers locked the barricades and told plaintiffs that they were only permitted to stand within the barricaded area. At 8:41 p.m., defendants brought additional barricades to close the opening of the area in which plaintiffs were standing. These barricades converted the “U”-shaped area into a confined, rectangular pen. Plaintiffs allege that defendants allowed tourists and journalists to exit the barricaded area but threatened to arrest plaintiffs if they tried to
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leave. Defendants allegedly told plaintiffs that they were being held because they were protestors.
Plaintiffs claim that defendants only permitted protestors who became ill to leave if they were taken by ambulance. For example, paramedics took one protestor, Lisa Rubenstein, out of the pen after she fainted inside the closed area. Plaintiff Jetter was not allowed to leave despite feeling ill and suffering from a fever. Ultimately, the NYPD officers allegedly held plaintiffs in the pen for one hour and forty-five minutes and neither arrested them nor charged them with any crime.
Plaintiffs plan to attend future demonstrations affiliated with the Occupy Wall Street movement but allege that they have thus far avoided such demonstrations for fear of becoming trapped in an NYPD-erected pen.
Discussion In deciding a motion for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c), the court “appl[ies] the same standard as that applicable to a motion under Rule 12(b)(6), accepting the allegations contained in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party.” King v. Am. Airlines, Inc., 284 F.3d 352 (2d Cir. 2002). A Rule 12(c) motion is granted only where “from the pleadings, the moving party is entitled to judgment as a matter of law.” Dargahi v. Honda Lease Trust, 370 Fed. App’x 172, 174 (2d Cir. 2010).
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To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a complaint must plead sufficient facts to state a claim to relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). In deciding such a motion, the court must accept as true the facts alleged in the complaint but not its legal conclusions. Iqbal, 556 U.S. at 678-79. The court must also draw all reasonable inferences in the plaintiff's favor and may consider documents attached to the complaint, incorporated by reference into the complaint, or known to and relied on by the plaintiff in bringing the suit. ATSI Commc'ns, Inc. v. Shaar Fund. Ltd., 493 F.3d 87, 98 (2d Cir. 2007). The court may also consider documents that are integral to a plaintiff’s claims if the plaintiff would have had actual notice of the documents at the time the complaint was drafted. Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991).
The legal standards relating to the constitutional and statutory provisions relied on are well known and need no reiteration here.
Dealing with the complaint in this case, it is a close question as to whether it states a valid cause of action for violation of constitutional rights. Plaintiffs allege that they were confined behind barricades on a street for almost two hours. However, the police were carrying out their duty to protect the President of the United States, who was visiting the hotel outside of which plaintiffs were protesting. It is well known that extraordinary steps are taken to protect the President.
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Plaintiffs claim that the police went too far and sUbjected plaintiffs to a confinement beyond that which was necessary to protect the President. The police obviously take the other view.
The court believes that it is not appropriate at this stage to rule on the merits of the case. Thus, the court declines to dismiss the action.
However, a summary judgment motion, or cross-summary judgment motions, may be appropriate in order to avoid a drawn-out litigation with full discovery and trial. The court will confer with counsel.
Conclusion The motion to dismiss is denied. SO ORDERED. Dated: New York, New York
November 21,2013
Thomas P. Griesa U.S. District Judge

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 Case 1:12-cv-03391-TPG Document 86 Filed 12/18/15 Page 1 of 22

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

PHOEBE BERG, TOSHIRO KIDA, JOHN RIVERA, DAYNA ROZENTAL and JONATHAN JETTER, individually and on behalf of a class of all others similarly situated,
Plaintiffs,
-against-

12 Civ. 3391 (TPG)
CLASS ACTION AMENDED COMPLAINT
ECF CASE

NEW YORK CITY POLICE COMMISSIONER RAYMOND KELLY; CHIEF OF NEW YORK CITY POLICE DEPARTMENT JOSEPH ESPOSITO; DEPUTY CHIEF JAMES MCNAMARA; INSPECTOR PETER LOEHLE; LIEUTENANT STEPHEN LATALARDO; NEW YORK CITY POLICE DEPARTMENT JOHN DOE (whose identity is not currently known but who are known to be police officers and/or supervisory personnel of the New York City Police Department); in their individual and official capacities,

JURY TRIAL DEMANDED

Defendants. --------------------------------------------------------------------X

Plaintiffs PHOEBE BERG (“Berg”), TOSHIRO KIDA (“Kida”), JOHN RIVERA (“Rivera”), DAYNA ROZENTAL (“Rozental”), and JONATHAN JETTER (“Jetter”), individually and on behalf of a class of all others similarly situated (collectively, “Plaintiffs”), by their attorneys Rankin & Taylor PLLC and Beldock Levine & Hoffman LLP, hereby allege for their complaint against the defendants as follows:

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Case 1:12-cv-03391-TPG Document 86 Filed 12/18/15 Page 2 of 22
PRELIMINARY STATEMENT 1. In this civil rights class action against police officers of the New York City Police Department (the “NYPD”), Berg, Kida, Rivera, Rozental and Jetter, individually and on behalf of a class of all others similarly situated, seek damages and injunctive relief pursuant to 42 U.S.C. § 1983 to redress violations of the First, Fourth, and Fourteenth Amendments to the United States Constitution and the constitution of the State of New York. 2. These violations occurred when, on November 30, 2011, Plaintiffs sought to demonstrate in affiliation with the Occupy Wall Street (“OWS”) movement and the NYPD without any reason or cause detained them for nearly two hours inside an interlocking metal barricade. The NYPD prohibited Plaintiffs from exiting the pen because they were OWS demonstrators, while permitting tourists and journalists to leave. Plaintiffs, numbering between 70 and 120 people, were never charged with any violation, misdemeanor, or crime. 3. The NYPD’s actions violated a provision of the NYPD Patrol Guide mandated by order of the Honorable Robert Sweet, United States District Judge for the Southern District of New York, in Stauber v. City of New York, 03 Civ. 9163, dated March 31, 2008 which states:
Barrier configuration for demonstrations should not unreasonably restrict access to and participation in the event. For example, attendees should be permitted to leave a barricaded area at any time. In addition, if crowd conditions and other circumstances permit, participants should be permitted to leave and return to the same area. Sufficient openings in the barricades should be maintained for purpose of permitted attendees to leave expeditiously and return to the event as described in this paragraph. 4. Defendants violated Plaintiffs’ clear and established constitutional rights, including their rights to freedom of speech, freedom of association, freedom of assembly, and freedom from unreasonable seizure.
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Case 1:12-cv-03391-TPG Document 86 Filed 12/18/15 Page 3 of 22
5. Berg, Kida, Rivera, Rozental and Jetter are New Yorkers who have voiced their support for change in the past and who have plans to demonstrate in New York City in association with OWS in the coming months. As a result of Defendants’ acts and omissions under the color of state law and in the scope of their employment with the NYPD, including their violation of an express court order, Plaintiffs’ First Amendment rights have been chilled and there is a real and immediate threat that their constitutional rights will be violated by the NYPD again.
6. By this action, Plaintiffs seek redress for the violations of their constitutional and civil rights and to recover damages they suffered as a result of this incident. Plaintiffs further seek an order enjoining the NYPD from unlawful use of barricades and compelling the NYPD to comply with court orders restricting the use of pens.
JURISDICTION AND VENUE 7. This Court has subject matter jurisdiction over federal claims pursuant to 28 U.S.C. §§ 1331, 1343 (3-4). 8. This action is brought pursuant to 42 U.S.C. §§ 1983 and 1988 for violations of Plaintiffs’ rights under the First, Fourth and Fourteenth Amendments of the United States Constitution. 9. Venue is proper pursuant to 28 U.S.C. §1391(b) in that Plaintiffs’ claims arose in the Southern District of New York.
PARTIES Named Plaintiffs 10. Plaintiff BERG is a resident of Kings County in the State of New York. Berg has worked as a legal archivist at the New School for Social Research for the past six years. She is
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Case 1:12-cv-03391-TPG Document 86 Filed 12/18/15 Page 4 of 22
involved in OWS working groups and has attended more than a dozen demonstrations since November 30, 2011.
11. Plaintiff KIDA is a resident of Kings County in the State of New York. Kida works part-time for Occucopy, a collective that provides printing for OWS activities and other First Amendment actions.
12. Plaintiff RIVERA is a resident of Kings County in the State of New York. Rivera has been active in demonstrations for approximately 30 years and has attended at least 100 actions. Rivera is a receptionist at the State University of New York College of Optometry at Times Square, where he has been employed for over twenty years. He is a member of the Civil Service Employees Association, a leading New York union. He writes a blog about his OWS activities.
13. Plaintiff ROZENTAL is a resident of Nassau Count in the State of New York. She lives with her parents and brother in West Hempstead, New York. Rozental has been active in demonstrations for the past three years. She has been working at a midtown based legal search firm for the past five years. Rozental is actively involved in OWS activities: she helped set up an outdoor kitchen in Zuccotti Park when activities centered there and plans to help serve breakfast on May Day at an OWS action in Bryant Park.
14. Plaintiff JETTER is a resident of Queens County in the State of New York. He is a professor at the State University of New York, Purchase College, and the owner of a business based in midtown Manhattan. Jetter is actively involved to the OWS movement.
Defendants 15. Defendant RAYMOND KELLY (“Commissioner Kelly”) is and was, at all times relevant herein, the NYPD Commissioner and is responsible, in whole and/or in part, for the
4

Case 1:12-cv-03391-TPG Document 86 Filed 12/18/15 Page 5 of 22
creation, implementation, promulgation and enforcement of the actions, policies, practices and/or customs complained of herein. He is sued in both his individual and official capacity.
16. Defendant JOSEPH ESPOSITO (“Chief Esposito”) is and was at all times the Chief of the NYPD Department and is responsible, in whole and/or in part, for the creation, implementation, promulgation and enforcement of the policies, practices and/or customs complained of herein. He is sued in both his individual and official capacity.
17. Defendant DEPUTY CHIEF JAMES MCNAMARA (“Deputy Chief McNamara”) is and was at all times a Deputy Chief of the NYPD Department and is responsible, in whole and/or in part, for the creation, implementation, promulgation and enforcement of the policies, practices and/or customs complained of herein. He is sued in both his individual and official capacity.
18. INSPECTOR PETER LOEHLE (“Insp. Loehle”) is and was at all times the Chief of the NYPD Department and is responsible, in whole and/or in part, for the creation, implementation, promulgation and enforcement of the policies, practices and/or customs complained of herein. He is sued in both his individual and official capacity.
19. LIEUTENANT STEPHEN LATALARDO (“Lt. Latardo”) is and was at all times are and were at all times relevant herein an employee and agents of the NYPD. He is sued in his individual.
20. At all times relevant herein, the named individual defendants and the unnamed John Doe defendant (collectively “Defendants”) were acting under color of state law in the course and scope of their duties and functions as agents, servants, employees and officers of the NYPD, and otherwise performed and engaged in conduct incidental to the performance of their lawful functions in the course of their duties. Defendants were acting for and on behalf of the
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Case 1:12-cv-03391-TPG Document 86 Filed 12/18/15 Page 6 of 22
NYPD at all times relevant herein, with the power and authority vested in them as officers, agents and employees of the NYPD and incidental to the lawful pursuit of their duties as officers, employees and agents of the NYPD.
21. At all times relevant herein, Defendants violated clearly established constitutional standards under First, Fourth, and Fourteenth Amendments of which a reasonable police officer and/or public official under their respective circumstances would have known.
22. Defendants’ acts hereafter complained of were carried out intentionally, recklessly, with malice and/or gross disregard for Plaintiffs’ rights.
FACTUAL ALLEGATIONS 23. On March 31, 2008, the Honorable Robert Sweet, United States District Judge for the Southern District of New York, so-ordered a stipulation entered into and agreed to by the City of New York (the “City”) in the case captioned Ann Stauber and the New York Civil Liberties Union v. the City of New York, et al., 03 Civ. 9162 (the “Stauber Settlement and Order”) (Ex. A hereto). 24. The Stauber Settlement and Order arose from actions brought against the City, among others, asserting, inter alia, that the NYPD’s policy and/or practice of using interlocking metal barricades, or “pens,” to confine demonstrators in fixed locations violated the Constitution. 25. In the Stauber Settlement and Order, the City agreed to insert in the NYPD Patrol Guide the following:
Note: In cases in which the special event is a demonstration, information on expected street and sidewalk closings and information on how the public may access a demonstration site will be disseminated to the media and to event organizers and should, if possible, be posted on the Department’s website. Officers assigned to such events should be given detailed instructions on such closings and points of access prior to assignment. Detail supervisors should also be advised of street
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Case 1:12-cv-03391-TPG Document 86 Filed 12/18/15 Page 7 of 22
closures and points of access and any changes of points of access which occur during the event and which were not previously anticipated and publicized. Officers assigned to such events shall provide information to the public at the event about a available points of access.
26. In the Stauber Settlement and Order, the City agreed to insert in the NYPD Patrol
Guide the following:
Barrier configuration for demonstrations should not unreasonably restrict access to and participation in the event. For example, attendees should be permitted to leave a barricaded area at any time. In addition, if crowd conditions and other circumstances permit, participants should be permitted to leave and return to the same area. Sufficient openings in the barricades should be maintained for purpose of permitted attendees to leave expeditiously and return to the event as described in this paragraph.
27. Commissioner Kelly was a party to the Stauber Settlement and Order.
A Demonstration for the President, November 30, 2011
28. Upon information and belief, on November 30, 2011, President Barak Obama
attended a fundraiser dinner at the Sheraton Hotel (the “Hotel”) in New York, New York.
29. At approximately 8:00 p.m., about 100 people affiliated with OWS events,
including Berg, Kida, Rivera, Rozental, and Jetter, sought to demonstrate in front of the Hotel
while the President arrived for the fundraiser dinner.
30. Plaintiffs sought to demonstrate near the President and the media covering the
President’s event at the Hotel.
31. Berg, Kida, Rivera, Rozental, Jetter, and others walked to the Hotel in a group.
32. Plaintiffs carried signs with the intention of sharing messages with the President
and the media covering the President’s event. Kida carried a sign that said, “Get money out of
politics.” Berg carried a sign protesting the National Defense Authorization Act.
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33. The Hotel is located on the eastern side of Seventh Avenue between 52nd and 53rd

Streets.

34. When Berg, Kida, Rivera, Rozental and Jetter attempted to approach the Hotel,

they found that the NYPD had erected a barricade with interlocking metal fences approximately three-feet tall on Seventh Avenue, across the street from the Hotel at the southwest corner of 53rd

Street. 35.

The barricade created a “U” shape that extended west on 53rd Street toward

Broadway for approximately 100 feet, such that there was an opening into and out of the barricade area on 53rd street between Seventh Avenue and Broadway.

36. The barricades that made up the “U” were locked when Berg, Kida, Rivera,

Rozental and Jetter arrived.

37. Defendants told Berg, Kida, Rivera, Rozental and Jetter in sum or substance that

the only place they could stand was inside this locked “U” configuration of barricades.

38. Berg, Kida, Rivera, Rozental, Jetter and others moved into the center of the “U”-

shaped configuration and waited for the President to arrive.

39. Because of the configuration of the barricade, it was not possible for the

demonstrators to get any closer to the Hotel entrance or the media covering the President’s visit.

40. Sanitation trucks blocked the view from the Hotel entrance to the barricaded area.

41. At approximately 8:30 p.m., Berg, Kida, Rivera, Rozental, and Jetter moved into

the NYPD barricades toward the east side, i.e., closer to the Hotel, in order to be as close as

possible to the President when he arrived.

42. At approximately 8:41 p.m., Defendants brought barricades from further west on 53rd Street and closed the opening of the barricaded area, turning the “U” shaped barricade into a

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Case 1:12-cv-03391-TPG Document 86 Filed 12/18/15 Page 9 of 22
rectangular confined area or pen. 43. Upon information and belief, pursuant to customary practice, Chief Esposito’s
office would have to receive notice of and give consent for the closing of the pen. 44. Defendants told Plaintiffs in sum or substance that they were not permitted to exit
the pen. 45. One Defendant, in sum and substance, told Jetter that he was not free to leave and
that he would be arrested if he attempted to leave the pen. Upon information and belief, other Plaintiffs were told the same.
46. Defendants prevented the Plaintiffs from exiting the pen. 47. Defendant John Doe directed communication directing the pen to be closed and the plaintiffs to be held. 48. Defendant Insp. Loehle and Deputy Chief James McNamara ratified with their silence the order to pen the protestors and knew the plaintiffs were not being released thereby failing to intervene in the unconstitutional conduct. 49. Defendant Lt. Latardo was the ranking officer who closed the pens and held the plaintiffs. He knew the plaintiffs were not being released thereby failing to intervene in the unconstitutional conduct. 50. For example, Rivera, Jetter and others attempted to leave the pen at 9:15 p.m. after learning that the President had arrived and entered the Hotel, but were prohibited from doing so by Defendants. 51. Plaintiffs were held in the pen for nearly two hours. 52. During that time, Plaintiffs who sought to leave the pen were prohibited from doing so by Defendants.
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Case 1:12-cv-03391-TPG Document 86 Filed 12/18/15 Page 10 of 22
53. Defendants prohibited Plaintiffs from exiting the pen for any reason. 54. Defendants prohibited Plaintiffs from exiting the pen to use the restroom or to get food. 55. Plaintiffs who became ill were only able to leave the pen when taken by an ambulance. 56. For example, one demonstrator, Lisa Rubenstein, who felt ill inside the pen, was taken away by ambulance only after fainting inside the closed pen. 57. Jetter, who was feeling too sick to remain at the demonstration, was forced to stay despite a fever. 58. During the time that Plaintiffs were trapped in the pen, traffic was moving freely on Seventh Avenue. 59. During the time that Plaintiffs were trapped in the pen, pedestrians were moving freely on Seventh Avenue and 53rd Street, on the north and east corners of the intersection. 60. At approximately 10:26 p.m., nearly two hours after the pen was initially closed off and nearly two hours after Plaintiffs were trapped by Defendants inside the pen, the barricades were removed from the west side of the pen. 61. Upon information and belief, Plaintiffs were treated differently than others at the same intersection at the same time. 62. Defendants told Berg, Kida, Rivera, Rozental, and Jetter in sum or substance that they were being held because they were protestors. 63. Upon information and belief, tourists who were trapped in the pen were permitted to exit the pen while demonstrators were held. 64. Upon information and belief, journalists were permitted to exit the pen while
10

Case 1:12-cv-03391-TPG Document 86 Filed 12/18/15 Page 11 of 22
demonstrators were held. For example, upon information and belief, Josh Robin from NY 1 was released from the pen at 9:10 p.m., upon his request.
65. Upon information and belief, legal observers and members of the press were unable to enter the pen and access Plaintiffs. For example: legal observer Tamara Bedic could not get any closer to the demonstrators than the corner of Broadway and 53rd Streets; journalists Josh Harkinson (Mother Jones), Meg Robertson (MSNBC) and Andrew Katz (Brooklyn Ink), were not allowed to approach the pen on foot from the West; when Mr. Harkinson and Mr. Katz were later able to approach by taking a cab south on 7th Avenue, they were escorted away from the area when they began talking to demonstrators in the pen.
66. Berg, Kida, Rivera, Rozental and Jetter were not charged with any violation, misdemeanor or crime.
67. Upon information and belief, none of the Plaintiffs was charged with any violation, misdemeanor, or crime.
68. Upon information and belief, Plaintiffs were held in the pen because of their affiliation with the OWS movement.
69. Berg, Kida, Rivera, Rozental, and Jetter are active in the OWS movement and have plans to attend demonstrations affiliated with OWS in New York City the next few months.
70. Plaintiffs have avoided demonstrations after the November 30, 2011, incident for fear of becoming trapped in an NYPD erected pen. For example, Berg did not attend a demonstration she would have otherwise attended at another presidential fundraiser, and abandoned demonstrations where NYPD appeared with barricade fences, due to fear of being trapped in such a pen again.
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CLASS ACTION ALLEGATIONS 71. Pursuant to Rule 23(a) and (b)(3) of the Federal Rules of Civil Procedure, Berg, Kida, Rivera, Rozental, and Jetter seek to represent persons who were detained in the pen erected by the NYPD at Seventh Avenue and 53rd Street on the evening of November 30, 2011. 72. The members of the class, believed to number between 70 and 120, are so numerous as to render joinder impracticable. Berg, Kida, Rivera, Rozental, and Jetter currently have information identifying at least 47 class members. 73. In addition, joinder is impracticable because many members of the class live outside of New York State and some live outside of the United States. Moreover, many class members who have been victimized by the defendants’ unconstitutional policies and practices may not bring individual claims. There is no adequate avenue for the protection of the class members’ constitutional rights other than a class action. 74. The class members share a number of questions of law and fact in common, including but not limited to the following:
i. Whether interlocking barricades were erected and maintained on the evening of November 30, 2011 in a manner that amounted to an unlawful seizure in contravention of the Fourth Amendment.
ii. Whether interlocking barricades were erected and maintained on the evening of November 30, 2011 in a way that constituted an unreasonable restriction on speech in contravention of the First Amendment.
iii. Whether the NYPD targeted the Plaintiffs on November 30, 2011, because of their perceived association with OWS in violation of the equal protection clause of the Fourteenth Amendment. 12

Case 1:12-cv-03391-TPG Document 86 Filed 12/18/15 Page 13 of 22
75. These common questions of fact and law all flow from the same policies, enacted by the same defendants, and implemented by the same named and unnamed defendants.
76. The claims of the named plaintiffs are typical of those of the class in that, inter alia, at the time their constitutional rights were violated, they were engaging and attempting to engage in activities protected by the First Amendment and they were treated by the NYPD in the same manner as members of the class, resulting in violations of their First, Fourth and Fourteenth Amendment rights under the United States Constitution.
77. The named plaintiffs have a strong personal interest in the outcome of this action, have no conflicts of interest with members of the plaintiff class, and will fairly and adequately protect the interests of the class. Moreover, the named plaintiffs reside in the New York area and intend to continue to participate in demonstrations in New York City, where the defendants’ unconstitutional policies, practices and customs are implemented, and therefore remain at high risk of being unconstitutionally harmed in the future pursuant to these policies, practices and customs.
78. The named plaintiffs are represented by the undersigned counsel, civil rights lawyers with experience litigating a wide range of civil rights and class action lawsuits.
i. RANKIN & TAYLOR PLLC has broad civil rights experience from litigating matters in numerous contexts. The firm handles a strong ongoing police misconduct docket in both state and federal court. They have also won significant victories in the employment context. In addition to individual plaintiff actions, RANKIN & TAYLOR, in partnership with two solo practitioners, handled a mass action of over 80 plaintiffs arrested during the NYPD's crackdown on Critical Mass bike rides, Callaghan v. City of New 13

Case 1:12-cv-03391-TPG Document 86 Filed 12/18/15 Page 14 of 22
York, 07-cv-9611, and has litigated several other multiple plaintiff matters over public assembly issues, property confiscations, and wage and hour violations. The firm's eight attorneys represent significant experience and resources in handling complex actions. ii. Beldock Levine & Hoffman LLP, a New York law firm founded in 1964 with an extensive civil and criminal practice that has handled police misconduct and constitutional litigation for almost thirty years, has extensive experience litigating civil rights cases and class action lawsuits. Representative civil rights cases in which Beldock Levine & Hoffman LLP has acted as class counsel include: MacNamara, et al., v. the City of New York, 04 Civ. 09216 (S.D.N.Y.) (RJS)(JCF) (challenging the arrest and detention of demonstrators at the 2004 Republican National Convention, recently granted class status); Daniels v. New York, 99 Civ. 1695 (S.D.N.Y.) (SAS) (challenging the City’s policy and practice of suspicionless and race-based stops and frisks); Burley et al. v. City of New York, et al., 03 Civ. 735 (S.D.N.Y.) (Pauley, J.) (challenging excessive detention of demonstrators arrested for minor offenses during the 2002 World Economic Forum). 79. Counsel for the plaintiffs have the resources, expertise, and experience to prosecute this action. Counsel for the plaintiffs know of no conflicts among members of the class or between the attorneys and members of the class. 80. A class action is superior to other available methods for the fair and efficient adjudication of this controversy. The class is readily defined and prosecution of a class action will eliminate the possibility of repetitious litigation, while also providing redress for claims
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Case 1:12-cv-03391-TPG Document 86 Filed 12/18/15 Page 15 of 22
which may not be large enough to warrant the expense of individual litigation. 81. All named plaintiffs and class members were victimized by the same policies,
practices, customs and/or conduct and thus common questions of law and fact greatly predominate over any questions affecting only individual members, including legal and factual issues relating to damages.
82. The plaintiff class should be certified pursuant to Rule 23(a) and (b)(3) because questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.
FIRST CAUSE OF ACTION PURSUANT TO 42 U.S.C. § 1983 DEPRIVATION OF FIRST AMENDMENT RIGHTS UNDER THE UNITED STATES CONSTITUTION 83. Plaintiffs reiterate paragraph 1 through 82 and incorporate such by reference herein. 84. By the acts alleged herein, Defendants, acting under color of state law and in their individual and official capacities and within the scope of their employment, have deprived each and every plaintiff and members of the plaintiff class of rights, remedies, privileges and immunities guaranteed to every citizen of the United States, in violation of rights guaranteed by the First and Fourteenth Amendments of the United States Constitution and 42 U.S.C. § 1983, including but not limited to their right to freedom of speech, freedom of association, and freedom of assembly. 85. As a direct and proximate result of the misconduct described above, each and every plaintiff and members of the plaintiff class of those detained on November 30, 2011, have suffered injury and damages including, inter alia, physical and mental pain, suffering and mental
15

Case 1:12-cv-03391-TPG Document 86 Filed 12/18/15 Page 16 of 22
anguish. 86. Because Defendants, acting under color of state law, in their individual and
official capacities and within the scope of their employment, detained demonstrators perceived to be affiliated with OWS in pens built out of interlocking metal barricades contrary to express court order and the NYPD Patrol Guide, because this activity has already chilled Plaintiffs from exercising their First Amendment rights, and because Plaintiffs have plans to demonstrate at upcoming OWS affiliated events in New York City, a real and immediate threat exists that Plaintiffs’ First Amendment rights by the NYPD in the future. Plaintiffs have no adequate remedy at law and will suffer serious and irreparable harm to their constitutional rights unless Defendants are enjoined from further violating the Stauber Settlement and Order.
87. As a direct and proximate result of the misconduct described above, each and every plaintiff and members of the plaintiff class of those who seek to demonstrate in New York City, will continue to suffer injury and damages including, inter alia, physical and mental pain, suffering and mental anguish.
SECOND CAUSE OF ACTION PURSUANT TO 42 U.S.C. § 1983 DEPRIVATION OF FOURTH AMENDMENT RIGHTS UNDER THE UNITED STATES CONSTITUTION 88. Plaintiffs reiterate paragraph 1 through 87 and incorporate such by reference herein. 89. By the acts alleged herein, Defendants, acting under color of state law and in their individual and official capacities and within the scope of their employment, have deprived each and every plaintiff and members of the plaintiff class of rights, remedies, privileges and immunities guaranteed to every citizen of the United States, in violation of rights guaranteed by the Fourth and Fourteenth Amendments of the United States Constitution and 42 U.S.C. § 1983,
16

Case 1:12-cv-03391-TPG Document 86 Filed 12/18/15 Page 17 of 22
including without limitation unreasonable seizure. 90. As a direct and proximate result of the misconduct described above, each and
every plaintiff and members of the plaintiff class of those detained on November 30, 2011, have suffered injury and damages including, inter alia, physical and mental pain, suffering and mental anguish.
91. Because Defendants, acting under color of state law, in their individual and official capacities and within the scope of their employment, detained demonstrators perceived to be affiliated with OWS in pens built out of interlocking metal barricades contrary to express court order and the NYPD Patrol Guide, and because Plaintiffs have plans to demonstrate at upcoming OWS affiliated events in New York City, a real and immediate threat exists that Plaintiffs’ Fourth Amendment rights by the NYPD in the future. Plaintiffs have no adequate remedy at law and will suffer serious and irreparable harm to their constitutional rights unless Defendants are enjoined from further violating the Stauber Settlement and Order.
92. As a direct and proximate result of the misconduct described above, each and every plaintiff and members of the plaintiff class of those who seek to demonstrate in New York City, will continue to suffer injury and damages including, inter alia, physical and mental pain, suffering and mental anguish.
THIRD CAUSE OF ACTION PURSUANT TO 42 U.S.C. § 1983 DEPRIVATION OF FOURTHEENTH AMENDMENT RIGHTS TO EQUAL PROTECTION OF THE LAW UNDER THE UNITED STATES CONSTITUTION 93. Plaintiffs reiterate paragraph 1 through 92 and incorporate such by reference herein. 94. By the acts alleged herein, Defendants, acting under color of state law and in their
17

Case 1:12-cv-03391-TPG Document 86 Filed 12/18/15 Page 18 of 22
individual and official capacities and within the scope of their employment, have deprived each and every plaintiff and members of the plaintiff class of rights, remedies, privileges and immunities guaranteed to every citizen of the United States, in violation of rights guaranteed by the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and 42 U.S.C. § 1983.
95. As a direct and proximate result of the misconduct described above, each and every plaintiff and members of the plaintiff class of those detained on November 30, 2011, have suffered injury and damages including, inter alia, physical and mental pain, suffering and mental anguish.
96. Because Defendants, acting under color of state law, in their individual and official capacities and within the scope of their employment, detained demonstrators perceived to be affiliated with OWS in pens built out of interlocking metal barricades contrary to express court order and the NYPD Patrol Guide, because this activity has already chilled Plaintiffs from exercising their First Amendment rights, and because Plaintiffs have plans to demonstrate at upcoming OWS affiliated events in New York City, a real and immediate threat exists that Plaintiffs’ First Amendment rights by the NYPD in the future. Plaintiffs have no adequate remedy at law and will suffer serious and irreparable harm to their constitutional rights unless Defendants are enjoined from further violating the Stauber Settlement and Order.
97. As a direct and proximate result of the misconduct described above, each and every plaintiff and members of the plaintiff class of those who seek to demonstrate in New York City, will continue to suffer injury and damages including, inter alia, physical and mental pain, suffering and mental anguish.
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Case 1:12-cv-03391-TPG Document 86 Filed 12/18/15 Page 19 of 22
FOURTH CAUSE OF ACTION PURSUANT TO 42 U.S.C. § 1983 DEPRIVATION OF FOURTEENTH AMENDMENT RIGHTS TO DUE PROCESS UNDER THE UNITED STATES CONSTITUTION 98. Plaintiffs reiterate paragraph 1 through 97 and incorporate such by reference herein. 99. By the acts alleged herein, Defendants, acting under color of state law and in their individual and official capacities and within the scope of their employment, have deprived each and every plaintiff and members of the plaintiff class of rights, remedies, privileges and immunities guaranteed to every citizen of the United States, in violation of rights guaranteed by the Due Process Clause of the Fourteenth Amendment of the United States Constitution and 42 U.S.C. § 1983. 100. As a direct and proximate result of the misconduct described above, each and every plaintiff and members of the plaintiff class of those detained on November 30, 2011, have suffered injury and damages including, inter alia, physical and mental pain, suffering and mental anguish. 101. Because Defendants, acting under color of state law, in their individual and official capacities and within the scope of their employment, detained demonstrators perceived to be affiliated with OWS in pens built out of interlocking metal barricades contrary to express court order and the NYPD Patrol Guide, because this activity has already chilled Plaintiffs from exercising their First Amendment rights, and because Plaintiffs have plans to demonstrate at upcoming OWS affiliated events in New York City, a real and immediate threat exists that Plaintiffs’ First Amendment rights by the NYPD in the future. Plaintiffs have no adequate remedy at law and will suffer serious and irreparable harm to their constitutional rights unless Defendants are enjoined from further violating the Stauber Settlement and Order.
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Case 1:12-cv-03391-TPG Document 86 Filed 12/18/15 Page 20 of 22
102. As a direct and proximate result of the misconduct described above, each and every plaintiff and members of the plaintiff class of those who seek to demonstrate in New York City, will continue to suffer injury and damages including, inter alia, physical and mental pain, suffering and mental anguish.
FIFTH CAUSE OF ACTION FAILURE TO INTERVENE TO PREVENT VIOLATIONS OF FIRST, FOURTH, AND FOURTEENTH AMENDMENTS THROUGH 42 U.S.C. § 1983 103. Plaintiffs reiterate paragraph 1 through 102 and incorporate such by reference herein. 104. Members of the NYPD have an affirmative duty to assess the constitutionality of interactions between their fellow members of service and civilians and to intervene where they observe another member of the Police Department or other law enforcement agency falsely arresting a civilian. 105. Defendants were present for the above-described incident and witnessed other officer-defendants unlawfully detain and/or seize and/or arrest Plaintiffs. 106. Defendants’ detention of plaintiffs was unjustified under the circumstances yet Defendants failed to take any action or make any effort to intervene, halt or protect the plaintiffs from being unlawfully detained. 107. Defendants violated Plaintiffs’ constitutional rights by failing to intervene in other defendants’ clearly unconstitutional arrests, resulting in injury and damages including, inter alia, physical and mental pain, suffering and mental anguish.
SIXTH CAUSE OF ACTION VIOLATIONS OF THE NEW YORK STATE CONSTITUTION 108. Plaintiffs repeat and re-allege paragraphs 1 through 107 as if fully set forth herein.
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Case 1:12-cv-03391-TPG Document 86 Filed 12/18/15 Page 21 of 22
109. Defendants subjected Plaintiffs to the foregoing acts and omissions without due process of law, thereby depriving Plaintiffs of rights, privileges, and immunities secured by Article 1, §§ 8, 9, 11, and 12 of the New York State Constitution, including, without limitation, the following deprivations of his rights, privileges, and immunities:
i. Plaintiffs were deprived of freedom of speech, in violation of New York State Constitution Article 1, § 1;
ii. Plaintiffs were deprived of freedom of assembly and petition, in violation of New York State Constitution Article 1, § 8;
iii. Plaintiffs were deprived of his right to equal protection under the law and was subjected to discrimination based on their perceived political opinion, in violation of New York State Constitution Article 1, § 11; and
Plaintiffs were deprived of their right to be free from unreasonable searches and seizures, in violation of New York State Constitution Article 1, § 12. WHEREFORE, Plaintiffs respectfully request that this Court:
I. Enter an order certifying this action as a class action pursuant to Fed. R. Civ. P. 23(a), (b)(2) and (b)(3) for the plaintiff class described herein and naming plaintiffs as the class representatives;
II. Enter a judgment declaring that Defendants’ actions on November 30, 2011, were unconstitutional;
III. Issue an order enjoining Defendants’ from discouraging peaceful protest; IV. Issue an order compelling Defendants to comply with Section 213-11,
21(h)(3) of the New York Police Department Patrol Guide, which, following
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Case 1:12-cv-03391-TPG Document 86 Filed 12/18/15 Page 22 of 22

the Stipulation of Settlement and Order of Judge Sweet in Stauber v. City of
New York, 03-cv-9163 (March 31, 2008), states,
Barrier configuration for demonstrations should not unreasonably restrict access to and participation in the event. For example, attendees should be permitted to leave a barricaded area at any time. In addition, if crowd conditions and other circumstances permit, participants should be permitted to leave and return to the same area. Sufficient openings in the barricades should be maintained for purpose of permitted attendees to leave expeditiously and return to the event as described in this paragraph;
V. Award Plaintiffs damages in an amount to be determined at trial;
VI. Award Plaintiffs punitive damages in an amount to be determined at trial;
VII. Award Plaintiffs reasonable attorneys fees and costs as authorized pursuant to
42 U.S.C. § 1988; and
VIII. Grant such other further and different relief as to the Court may seem just and
proper.

Dated:

December 9, 2015 New York, New York

Respectfully submitted,

By: ________________________ David B. Rankin Rankin & Taylor PLLC 11 Park Place, Suite 914 New York, New York 10007 212-226-4507 david@drmtlaw.com
22

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
--------------------------------------------X
PHEOBE BERG, et al.,
Plaintiffs,
v. NEW YORK CITY POLICE COMMISSIONER
RAYMOND KELLY, et al.,
Defendants.
--------------------------------------------X

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12-cv-3391 (TPG) OPINION

This putative class action arises out of an Occupy Wall Street protest during President Barack Obama's November 2011 visit to New York City. Plaintiffs were protestors who were allegedly deprived of their federal and state constitutional rights when New York Police Department ("NYPD") officers detained them in a barricaded area for over an hour. Defendants, NYPD officers at the time of the protest, now move for summary judgment on all claims. For the following reasons, defendants' motion for summary judgment is granted in part and denied in part.
Background Drawing all reasonable inferences in plaintiffs' favor, a reasonable jury could find the following facts to be true. See Tolan v. Cotton, 134 S. Ct. 1861, 1863 (2014). On November 30, 2011, a protest took place in Manhattan as part of the Occupy Wall Street movement. Scores of protestors gathered at
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Bryant Park in the early evening. Their plan was to march through Midtown toward a fundraising event attended by President Obama at the Sheraton Hotel, located at Seventh Avenue between 52nd and 53rd Streets. Their goal, rhetorically, was to "#OccupyObama" and have "#DinnerWithBarrack" by protesting outside the Sheraton. See Rozental Dep. 16:18-17:4.
As the protestors neared the President's event, they stopped briefly one block south of the Sheraton, at the corner of Seventh Avenue and 51st Street. The NYPD had previously designated this corner as a "protest area." Some protestors briefly discussed remaining in the protest area, but, ultimately, they continued northward on their march.
Because police officers had restricted some pedestrian traffic around the Sheraton, the protestors could not walk up Seventh Avenue. Instead, a group of between 50 and 200 protestors proceeded north on Broadway, turned right on 53rd Street, and finally came to the southwest corner of Seventh Avenue and 53rd Street, opposite the Sheraton. In plans made prior to the presidential visit, the NYPD had designated this area as a "press pen"-that is, an area where members of the media could await the President's arrival at the Sheraton.
By the time the protesters got to the press pen at approximately 8:00 p.m., police barricades already flanked the curb along 53rd Street and at the southwest corner of Seventh Avenue and 53rd Street. The effect was to create a U-shaped barricaded area that was enclosed on
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three sides. Police officers ushered the protestors into this barricaded area. See Hart Dep. 46:24-47:9, 47:25-48:12; Latalardo Dep. 41:2342:2, 43:11-15.
Shortly before the President's 8:50p.m. arrival at the Sheraton, the NYPD established a "frozen zone" to restrict pedestrian traffic around the hotel. The zone extended from Sixth Avenue to Broadway and from 52nd Street to 53rd Street. It therefore included the entire press pen, even though that location
See Purtell Dep. 60: 17-63:4;
At some point, police officers placed additional barricades behind the protesters on 53rd Street, thereby closing the press pen on all four sides. See Berg Dep. 43:3-17. Defendants have not been able to identify who ordered this closure, and it is unclear whether it occurred before or after the President's arrival. The protestors repeatedly asked to leave the press pen, but police officers repeated refused their requests. Some police officers even threatened to arrest protestors who tried to leave. See Jetter Dep. 41:8-11. Police officers did, however, allow tourists and journalists to leave the press pen, and traffic flowed freely on Seventh Avenue between the Sheraton and the press pen. See, e.g., Jetter Dep. 38:18-39: 19; Rozental Dep. 42: 15-16; Dkt. 110, Video Ex. 12 at 0:40 and 4:10. When protestors asked why they alone were being detained,
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police officers told them it was "for being a protestor." Dkt. 110, Video Ex. 13 at 4:30; see also Jetter Dep. 41:12-16.
The President left the Sheraton at 10:25 p.m., and police officers released the protesters from the press pen soon after. The detention had lasted for over an hour.
Following these events, plaintiffs, who were all part of the protest, filed a complaint alleging claims under 42 U.S.C. § 1983 for violations of the First, Fourth, and Fourteenth Amendments of the U.S. Constitution, as well as parallel claims under the New York State Constitution. Plaintiffs brought this case as a class action on behalf of themselves and all other persons who were detained in the press pen. In November 2013, the court denied defendants' motion for judgment on the pleadings. After plaintiffs amended their complaint, defendants moved for summary judgment on all claims.
Discussion Summary judgment is proper only "if the movant shows 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). A fact is "material" when it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And an issue is "genuine" when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.
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"Credibility determinations, the weighing of evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." Id. at 255. The court must "believe[]" the nonmovant's evidence and draw "all justifiable inferences . . . in his favor." Id. "[I]f there is any evidence in the record from any source from which a reasonable inference in the nonmoving party's favor may be drawn, the moving party simply cannot obtain a summary judgment." Binder & Binder PC v. Barnhart, 481 F.3d 141, 148 (2d Cir. 2007) (citation and alteration omitted). In sum, the court may grant such relief only "if, on the basis of all the pleadings, affidavits and other papers on file, and after drawing all inferences and resolving all ambiguities in favor of the non-movant, it appears that the evidence supporting the non-movant's case is so scant that a rational jury could not find in its favor." Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 86 (2d Cir. 1996). I. Federal Constitutional Claims
Plaintiffs have brought federal constitutional claims for violations of the First, Fourth, and Fourteen Amendments under 28 U.S.C. § 1983, which "creates a cause of action against any person who, acting under color of state law, abridges 'rights, privileges, or immunities secured by the Constitution and laws' of the United States." See Shakhnes v. Berlin, 689 F.3d 244, 250 (2d Cir. 2012) (quoting 42 U.S.C. § 1983). Defendants move for summary judgment on all claims.
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a. Kelly and Esposito's Personal Involvement As a threshold matter, defendants Raymond Kelly and Joseph Esposito argue that claims against them fail due to lack of personal involvement. "Personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under§ 1983." Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2006). A defendant in a § 1983 action may not be held liable merely because he holds a high position of authority. Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994). At the time of the protest, Raymond Kelly was the Commissioner of the NYPD and Joseph Esposito was the Chief of Department of the NYPD. The amended complaint barely mentions either defendant, and it is undisputed that neither was at the scene of the protest. In their opposition brief, plaintiffs belatedly raise theories of supervisory liability under Monell v. Department of Social Services, 436 U.S. 658 (1978), and of respondeat superior, but they failed to plead either theory even after amending their complaint. Given the evidence in the record, no reasonable jury could find that defendants Kelly and Esposito were sufficiently involved in this incident to establish liability under§ 1983. In sum, plaintiffs' § 1983 claims fail as to defendants Kelly and Esposito for lack of personal involvement in the alleged constitutional
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deprivations.! The court will now consider claims as to all other defendants.
b. Plaintiffs' Fourth Amendment False-Arrest Claim Plaintiffs claim that their detention constituted a false arrest in violation of the Fourth Amendment. A claim for false arrest "resting on the Fourth Amendment right to be free from unreasonable seizures ... is substantially the same as a claim for false arrest under New York law." Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) (citations omitted). Under New York law, a plaintiff must satisfy four elements: "(1) the defendant intended to confine the plaintiff, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement, and (4) the confinement was not otherwise privileged." Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994). Defendants concede the first three elements. Where police detain someone without a warrant, a presumption arises that the detention was unlawful and the burden shifts for proving privilege to confine. See Jenkins v. City of New York, 478 F.3d 76, 88 (2d Cir. 2007). Defendants here do not claim to have had a warrant to detain the protestors, nor do they attempt to establish probable cause for the detention. In fact, defendants freely admit that police officers knew
1 In their reply brief, defendants raise for the first time the argument that claims against defendants James McNamara and Peter Loehle also fail for lack of personal involvement. "Arguments made for the first time in a reply brief need not be considered by a court," and the court declines to consider them here. See Playboy Enters., Inc. v. Dumas, 960 F. Supp. 710, 720 n.7 (S.D.N.Y. 1997).
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of no specific threats to the President that night and that officers did not observe the protestors threatening any violence or criminal activity in the press pen. See Latalardo Dep. 47:22-24, 48: 10-14; Hart Dep. 58:8-14, 93: 11-13; Purtell Dep. 66:24-67:3, 72:6-9.
Defendants' principal argument is that their actions were essential to ensure the President's safety. They also argue that large groups of protestors necessarily pose enhanced security risks. To cast this in more legalistic terms, defendants assert that "special needs" associated with the President's visit privileged their actions.
It may be true that certain circumstances justify police officers temporarily detaining people to protect the President, and that large crowds may sometimes pose higher risks. But even defendant Peter Loehle, the NYPD sector commander for the area encompassing the Sheraton, admitted that he was unaware of any reason why his officers closed the press pen on four sides and detained the protestors within. Loehle Dep. 65:11-15, 66:19-24. He also testified that he was unaware of any reason why his officers had failed to follow the written NYPD policy of allowing protestors "to leave the barrier area at any time." Loehle Dep. 110:5-16.
To be sure, defendants set forth an array of possible justifications for the detention, chief among them the undoubted importance of ensuring the President's security. But defendants fail to identify who gave the order to detain the protestors, thereby obscuring the actual
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reason for the detention. Moreover, circumstantial evidence casts doubt on defendants' purported justifications, particularly the fact that police officers froze the press pen even though

See Purtell Dep. 60: 17-63:4; Loehle Dep. 65:4-10,

66:19-24;

All this uncertainty provides a genuine issue

of material fact for the jury to decide as to why the protestors were

detained. Without making this factual determination, it is impossible to

assess defendants' claimed privilege.

In sum, the evidence in the record could allow a reasonable jury to

find that such a detention violated the Fourth Amendment. For example,

a reasonable jury could conclude that police officers singled out the

protestors for detention because they were protestors-as opposed to

journalists or tourists-and that the officers had impermissible motives

when they did so. Of course, a jury might not draw these inferences in

plaintiffs' favor at trial, but they are still the jury's inferences to draw.

Accordingly, defendants have failed to show that they are entitled

to summary judgment on plaintiffs' Fourth Amendment false-arrest

claim.

c. Plaintiffs' First Amendment Retaliation Claim

Plaintiffs allege that their detention also violated the First

Amendment because it was retaliation for their protest and their

association with Occupy Wall Street. To establish a claim for First

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Amendment retaliation, a plaintiff must satisfy three elements: "(1) he has a right protected by the First Amendment; (2) the defendant's actions were motivated or substantially caused by his exercise of that right; and (3) the defendant's actions caused him some injury." Dorsett v. Cty. of Nassau, 732 F.3d 157, 160 (2d Cir. 2013). The injury need not be chilled speech, which "is not the sine qua non of a First Amendment claim," and a plaintiff may prevail "if he can show either that his speech has been adversely affected by the government retaliation or that he has suffered some other concrete harm." Id. (third emphasis added)
As to the first element, it is undeniable that the First Amendment protects the right to engage in peaceful protest directed at the President. See, e.g., Watts v. United States, 394 U.S. 705, 708 (1969). And as to the third element, the alleged injury is the detention itself, which clearly constitutes a "concrete harm." See generally Gill v. Pidlypchak, 389 F.3d 379, 381-84 (2d Cir. 2004). The key dispute, then, concerns the second element: whether the officers' actions were motivated or substantially caused by the protestors' exercise of their First Amendment rights. In short, was there a causal connection between the speech and the detention?
Circumstantial evidence of retaliatory intent may supply the causal connection between a plaintiffs protected speech and a defendant's adverse action. Gronowski v. Spencer, 424 F.3d 285, 293 (2d Cir. 2005). As discussed above, there exists a genuine issue of material fact as to
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why the protestors were detained, and a reasonable jury could find that it was simply "for being a protestor." See Dkt. 110, Video Ex. 13 at 4:30. Not only did police officers at the scene allegedly make statements to that effect, but they also allowed journalists and tourists to leave the press pen while refusing similar requests from the protestors. Moreover, the press pen was
yet police officers unquestionably prevented protestors from leaving.
In short, because the court cannot glean from the record what actually motivated police officers to detain the protestors, defendants cannot show they are entitled to summary judgment on plaintiffs' First Amendment retaliation claim.
d. Plaintiffs' Fourteenth Amendment Selective-Enforcement Claim Plaintiffs also claim that defendants subjected them to selective enforcement, in violation of the Fourteenth Amendment's guarantee of equal protection. To establish a claim for selective enforcement, a plaintiff must satisfy two elements: "(1) that the [plaintiff], compared with others similarly situated, was selectively treated; and (2) that such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person." Freedom Holdings, Inc. v. Spitzer, 357 F.3d 205, 234 (2d Cir. 2004) (alteration and citation omitted). "Generally, whether two entities are similarly situated
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is a factual issue that should be submitted to the jury." Cine SKB, Inc. v. Town of Henrietta, 507 F.3d 778, 790 (2d Cir. 2007)
Here, as detailed above, a genuine issue of material fact exists as to the actual reason for detaining the protestors. A reasonable jury could find that plaintiffs satisfy both elements of a selective-enforcement claim by crediting evidence that police officers detained protestors due to their protected speech. The protestors were certainly "treated differently" from other people near the Sheraton that night. See Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 499 (2d Cir. 2001). While the protestors were confined to the press pen, others were allowed to leave, and traffic moved freely along Seventh Avenue between the detained protestors and the President's event.
Defendants argue that this claim must fail because plaintiffs "cannot identify other groups consisting of scores of protestors who eschewed a designated protest area, attempted to approach the president, and supplanted a designated area across the street from the President." Dfs.' Mem. L. at 15. This degree of extreme similarity is unrealistic and unnecessary. Rather, "[t]he test is whether a prudent person, looking objectively at the incidents, would think them roughly equivalent." Penlyn Dev. Corp. v. Inc. Vill. of Lloyd Harbor, 51 F. Supp. 2d 255, 264 (E.D.N.Y. 1999). "Exact correlation is neither likely nor necessary." Id.
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More importantly, the protestors' status as protestors cannot distinguish them and thereby establish that no one at the scene was similarly situated. Were that sufficient, the second element of a selective-enforcement claim would be nonsensical in many cases, as this simple hypothetical reveals. Imagine two people at a parade. The first is a vocal woman who is enthusiastically exercising her constitutional rights by chanting political songs; the second is a silent man who is simply watching the parade pass by. Police officers force the vocal woman to leave the parade but do nothing to the silent man. Under defendants' theory, the officers could admit that they targeted the vocal woman "to inhibit or punish the exercise of [her] constitutional rights," Freedom Holdings, 357 F.3d at 234, but still prevail by showing that she was the only one exercising those rights. That is not the law of selective enforcement.
Given the disputed factual issues that endure, defendants cannot obtain summary judgment plaintiffs' Fourteenth Amendment selectiveenforcement claim.2
e. Plaintiffs' Failure-to-Intervene Claim In conjunction with their First, Fourth, and Fourteenth Amendment claims, plaintiffs bring a separate claim alleging that
2 Plaintiffs' opposition brief explicitly cabins their Fourteenth Amendment claim to a theory of equal protection and fails to respond to defendants' arguments as to the dueprocess claim found in plaintiffs' amended complaint. It appears, therefore, that plaintiffs have abandoned any claim based on the Fourteenth Amendment's guarantee of due process.
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defendants failed to intervene during the detention. Even where an officer did not personally effect an arrest, he may be held liable for failing to intervene where "that officer observes or has reason to know ... that a citizen has been unjustifiably arrested" or "that any constitutional violation has been committed by a law enforcement official." Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994).
Given the material factual disputes that remain, defendants cannot obtain summary judgment on plaintiffs' claim for failure to intervene. If the jury credits plaintiffs' evidence, defendants James McNamara, Peter Loehle, and Stephen Latalardo could all be liable for failing to protect plaintiffs' constitutional rights. Defendant McNamara was the NYPD officer who had command of the area surrounding the Sheraton on the night of the protest, and other officers testified that he likely knew of the orders to hold the protestors. See Purtell Dep. 37:23-39:3, 39:18-41:12. Defendant Loehle was the NYPD sector commander for the area encompassing the Sheraton, and there is evidence suggesting he was in charge of carrying out the order to freeze the area that included the press pen. See Hart Dep. 56:15-57:24. Finally, defendant Latalardo admits he might have been the officer who actually closed the press pen, and that he was the one who opened it after the President's departure. See Latalardo Dep. 41:10-22, 43:16-20, 46:3-5. Taken together, these facts, which a reasonable jury could find, could show that each officer failed to act despite knowing or having reason to know that the protestors had
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been "unjustifiably" detained or that a fellow officer had committed a "constitutional violation." See Anderson v. Branen, 17 F.3d at 557.
Accordingly, defendants have failed to show that they are entitled to summary judgment on plaintiffs' claim for failure to intervene.
f. Defendants' Qualified-Immunity Defense Defendants invoke qualified immunity as to all of plaintiffs'§ 1983 claims. Qualified immunity shields officials from liability for civil damages to the extent their conduct "does not violate clearly established statutory or constitutional rights of which a reasonable person would
have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). "The
contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640 (1987).
If the law is "clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct." Harlow, 457 U.S. at 818-19. That is not to say that "the very action in question [must have] previously been held unlawful." Id. Rather, so long as the unlawfulness is "apparent" in light of "pre-existing law," public officials "can still be on notice that their conduct violates established law even in novel factual circumstances." Hope v. Pelzer, 536 U.S. 730, 739, 741 (2002) (citations omitted).
The parties fiercely dispute the true motivation for the detention. Although defendants now invoke presidential security, plaintiffs allege
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that something more sinister led police officers to single out the protestors for different treatment that night. "Where the objective reasonableness of state action depends on credibility determinations, a genuine issue of material fact precludes summary judgment" on the issue of qualified immunity. Santulli v. Russello, 519 F. App'x 706, 709 (2d Cir. 2013) (citing Dillon v. Morano, 497 F.3d 247, 253 (2d Cir. 2007)). Here, the court cannot assess defendants' purported immunity without wading into factual disputes that must be left for a jury.
If a jury were to credit plaintiffs' evidence, clearly established law at the time of their detention could support each of their § 1983 claims. A reasonable jury could find that police officers detained the protestors, without probable cause or a warrant, due to a motive that belies defendants' claimed privilege. This the Fourth Amendment clearly would not permit. See Golino v. City of New Haven, 950 F.2d 864, 870 (2d Cir. 1991) ("The right not to be arrested or prosecuted without probable cause has, of course, long been a clearly established constitutional right."). A reasonable jury could also find that the protestors were detained as retaliation for their association with Occupy Wall Street. This the First Amendment clearly would not permit. See Santulli, 519 F. App'x at 708-09 ("It is clearly established that a person has the right to be free from retaliation for an exercise of First Amendment rights."). And a reasonable jury could find that police officers selectively treated the protestors in order to punish them for their speech. This the Fourteenth
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Amendment clearly would not permit. See Bums v. Citarella, 443 F. Supp. 2d 464, 470 (S.D.N.Y. 2006) ("It is [] clearly established that selective enforcement ... based on an official's dislike of protected expressiOn is unlawful."). Finally, having made these findings, a reasonable jury could conclude that police officers violated clearly established rights by failing to intervene when they knew or should have known of the detention. See Anderson v. Branen, 17 F.3d at 557 ("It is widely recognized that all law enforcement officials have an affirmative duty to intervene to protect the constitutional rights of citizens from infringement by other law enforcement officers in their presence.").
For these reasons, defendants have failed to show that they are entitled to qualified immunity. II. State Constitutional Claims
Plaintiffs also plead various state constitutional claims, which defendants argue must be dismissed because adequate alternative remedies exist. Where a plaintiff has alternate remedies available under a federal statute such as 28 U.S.C. § 1983, "her state constitutional tort claim is redundant and precluded." Biswas v. City of New York, 973 F. Supp. 2d 504, 522 (S.D.N.Y. 2013). Plaintiffs' opposition ignores this argument raised by defendants, yet the principle is sufficient to defeat the state constitutional claims as a matter of law.
The court therefore grants defendants' motion for summary judgment as to these claims.
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Conclusion On a motion for summary judgment, the movant faces a demanding standard if the court is to deprive the nonmovant of a jury determination. Defendants have met their burden on plaintiffs' state constitutional claims, but have failed to do so on plaintiffs' federal constitutional claims, except as to defendants Kelly and Esposito. Accordingly, the motion for summary judgment is granted in part and denied in part.
SO ORDERED Dated: New York, New York
August 10, 2016 Thomas P. Griesa U.S. District Judge
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 Case 1C:1a2s-ecv1-60-33319416-,LDAoKc-uGmWeGnt 1D2o0c, u0m7/e2n5t/2103148, F2i3le5d220175/2, 5P/1a8ge1Poafg3e71 of 37

16‐3146 Berg et al. v. N.Y.C. Police Comm’r et al.

N.Y.S.D. Case # 12-cv-3391(TPG)

1

In the

2

United States Court of Appeals

3

For the Second Circuit

4

5

6

August Term, 2017 USDC SDNY

7

DOCUMENT

8

Argued: October 4, 2017 ELECTRONICALLY FILED

9

Decided: July 25, 2018 DOC #: _________________

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DATE FILED: _J_u_ly_2_5_,_2_0_1_8____

11

Docket No. 16‐3146‐cv

12

13

14

PHOEBE BERG, individually and on behalf of a class

15

of all others similarly situated, TOSHIRO KIDA, indi‐

16

vidually and on behalf of a class of all others simi‐

17

larly situated, JOHN RIVERA, individually and on

18

behalf of a class of all others similarly situated,

19

DAYNA ROZENTAL, individually and on behalf of a

20

class of all others similarly situated, JONATHAN JET‐

21

TER, individually and on behalf of a class of all oth‐

22

ers similarly situated,

23

24

Plaintiffs ‐ Appellees,

25

26

V.

27

28

NYCP COMMISSIONER RAYMOND KELLY, CHIEF OF

29

NYC P.D. JOSEPH ESPOSITO, JAMES MCNAMARA,

30

DEPUTY CHIEF, in his individual and official capac‐

31

ities, PETER LOEHLE, INSPECTOR, in his individual

32

and official capacities, STEPHEN LATALARDO, LIEU‐

33

TENANT, in his individual and official capacities,

CERTIFIED COPY ISSUED ON 07/25/2018

Case 1C:1a2s-ecv1-60-33319416-,LDAoKc-uGmWeGnt 1D2o0c, u0m7/e2n5t/2103148, F2i3le5d220175/2, 5P/1a8ge2Poafg3e72 of 37

1

JOHN DOE, NEW YORK CITY POLICE DEPARTMENT,

2

(whose identity is not currently known but who

3

are known to be police officers and/or supervisory

4

personnel of the New York City Police Depart‐

5

ment); in his individual and official capacities,1

6

7

Defendants ‐ Appellants.

8 9

10

Appeal from the United States District Court

11

for the Southern District of New York

12

No. 12‐cv‐3391 – Thomas P. Griesa, Judge.

13

14

15 Before:

RAGGI, HALL, and CARNEY, Circuit Judges.

16

17

Members of Occupy Wall Street (“OWS protesters” or “protesters”)

18 assert that a group of New York City Police Officers (the “Officers”) unlaw‐

19 fully detained them during a protest outside the Sheraton Hotel where Pres‐

20 ident Obama was attending a fundraising dinner. The protesters claim that

21 this detention violated their First, Fourth, and Fourteenth Amendment

22 rights. Concluding that the Officers’ motivation for the detention was a ma‐

23 terial fact in dispute and that a finding as to the Officers’ motivation affected

24 the determination of the objective reasonableness of the Officers’ actions, the

25 district court denied the Officers summary judgment on the protesters’ First,

26 Fourth, and Fourteenth Amendment claims, and denied the Officers quali‐

27 fied immunity. The Officers appealed. This court denied the protesters’ mo‐

28 tion to dismiss this appeal for lack of subject matter jurisdiction. The Officers

29 argue before us that the limited detention that occurred was permissible un‐

30 der the special needs exception to the Fourth Amendment so as not to vio‐

31 late the protesters’ constitutional rights and, in any event, they are entitled

32 to qualified immunity.

33

1

The Clerk of Court directed to amend the official caption in this case as set forth

above.

2

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1

We identify disputes of fact that do not permit a court to conclude as

2 a matter of law that the protesters’ two‐hour detention was permissible un‐

3 der the special needs exception to the Fourth Amendment’s warrant re‐

4 quirement. We nonetheless conclude that the officers are entitled to quali‐

5 fied immunity. The district court erred in concluding that the Officers’ sub‐

6 jective intent in temporarily detaining the protesters was relevant to

7 whether the Officers are entitled to qualified immunity. Considered objec‐

8 tively, we conclude that, at the time of the challenged actions, reasonable

9 officers could have believed that the approximately two‐hour detention of

10 the protesters in response to concerns for the President’s security was justi‐

11 fied in light of then established law. Because the Officers could have reason‐

12 ably believed the temporary detention was lawful, they are also entitled to

13 qualified immunity on the OWS protesters’ First Amendment and Four‐

14 teenth Amendment claims.

15

16

REVERSED AND REMANDED.

17 18

19

KATHY CHANG PARK, Assistant Corporation

20

Counsel (Richard Dearing and Claude S.

21

Platton, on the brief), on behalf of Zachary W.

22

Carter, Corporation Counsel of the City of

23

New York, New York, New York, for Defend‐

24

ants‐Appellants.

25

26

DAVID B. RANKIN, Beldock Levine & Hoff‐

27

man LLP, New York, New York, for Plain‐

28

tiffs‐Appellees.

29

30 31

32 HALL, Circuit Judge:

33

34

This is an appeal from an order entered on August 10, 2016, in the

35 Southern District of New York (Griesa, J.), denying summary judgment in

3

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1 part to Defendants‐Appellants Police Officers (the “Officers”), who claimed 2 qualified immunity from suit by Plaintiffs‐Appellees, participants in an Oc‐ 3 cupy Wall Street protest.2 The named protesters assert that the Officers un‐ 4 lawfully detained them and other putative class members during a protest 5 outside the Sheraton Hotel where President Obama was attending a fund‐ 6 raising dinner on November 30, 2011. Before us on appeal are the protesters’ 7 claims that this detention violated their Fourth Amendment rights, that the 8 detention was in retaliation for their exercise of First Amendment rights, 9 that they were subjected to selective enforcement in violation of the Four‐ 10 teenth Amendment, and that certain officers failed to intervene to protect 11 their constitutional rights.3 The Officers argue that they are entitled to sum‐ 12 mary judgment based on qualified immunity because: (1) under the special 13 needs exception to the Fourth Amendment, there was no constitutional vi‐ 14 olation; and (2) even if the detention that occurred were determined to be

2
testers.”

The Plaintiffs‐Appellees will be referred to as “OWS protesters” or “pro‐

3

The OWS protesters assert failure to intervene claims against Defendants

James McNamara, Peter Loehle, and Stephen Latalardo. McNamara was the officer in

command in the area of the Sheraton. Loehle was the sector commander for the area en‐

compassing the Sheraton. And Latalardo admits he may have been the officer that actually

closed and opened the press pen where the OWS protesters was detained.

4

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1 unconstitutional, there was no clearly established law doing so at the time

2 their actions were taken.

3

On the record before us, we conclude that the Officers have not

4 demonstrated that, as a matter of law, the protesters’ two‐hour detention

5 was justified under the “special needs” exception to the Fourth Amend‐

6 ment’s warrant requirement. This is not to dismiss the possibility of addi‐

7 tional evidence being introduced at a trial to support such a conclusion. But

8 no such trial is warranted here because, as to the second argument, we con‐

9 clude that the Officers are entitled to qualified immunity. At the time of the

10 detentions at issue, it was not clearly established that the Fourth Amend‐

11 ment did not permit officers protecting the President of the United States to

12 detain protesters as occurred in this case. We further conclude that because

13 the Officers have qualified immunity from the OWS protesters’ Fourth

14 Amendment claims, they are also entitled to qualified immunity on the

15 OWS protesters’ related First Amendment and failure to intervene claims.

16 As to the OWS protesters’ Fourteenth Amendment claims for selective en‐

17 forcement, the Officers are entitled to qualified immunity because reasona‐

18 ble officers could disagree as to whether the plaintiffs’ status as protesters

5

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1 presented unique concerns that non‐protesters on the scene did not. We pro‐

2 ceed to explain these conclusions.

3

I.

4

On the night of November 30, 2011, the OWS protesters planned to

5 protest a fundraising dinner for President Obama at the Sheraton Hotel in

6 midtown Manhattan. Because part of the protesters’ message was aimed at

7 keeping money out of politics, the point of that night’s protest was to bring

8 attention to the President’s fundraiser. Through various social media ac‐

9 counts, the OWS protesters had advertised the protest using hashtags such

10 as #OccupyObama and #DinnerWithBarack.

11

The President’s visit occurred the same night as the annual Christmas

12 tree lighting at Rockefeller Center, less than a quarter mile from the Shera‐

13 ton. The New York City Police Department (“N.Y.P.D.”) had responded to

14 a bomb threat at Rockefeller Center approximately one hour prior to Presi‐

15 dent Obama’s arrival at the Sheraton.

16

The OWS protest began in Bryant Park, at 42nd Street and 6th Ave‐

17 nue. The protesters intended to march about ten blocks northwest toward

18 the Sheraton Hotel at 53rd Street and 7th Avenue to confront the President.

6

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1 As the protesters marched toward the Sheraton, they first stopped on 51st

2 Street and 7th Avenue, in an area the N.Y.P.D. had previously designated

3 as the “demonstration area.” The protesters, however, opted not to remain

4 in the demonstration area, but continued to march toward the Sheraton, ul‐

5 timately stopping at approximately 8:00 p.m., on the southwest corner of

6 53rd Street and 7th Avenue. The protesters stopped there because the

7 N.Y.P.D. had restricted pedestrian traffic any closer to the Sheraton. This

8 landed the OWS protesters directly across the street from the hotel and

9 within the President’s line of sight as he entered and exited.

10

According to the N.Y.P.D. plans, the area near the southwest corner

11 of 53rd Street and 7th Avenue was designated the “press pen.” Partially en‐

12 closed by barriers on three sides, the press pen was reserved for individual

13 press members holding certain security credentials. Although not members

14 of the press, much less credentialed, OWS protesters chose to gather in the

15 press pen because it was closer to the President than their designated

16 demonstration area at 51st Street and 7th Avenue.

7

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1

Shortly before the President’s arrival at approximately 8:50 p.m., the

2 N.Y.P.D. established a “frozen zone” for a period of time during which ve‐

3 hicular and pedestrian traffic was restricted in the area surrounding the ho‐

4 tel. The “frozen zone” extended from 6th Avenue to Broadway and from

5 West 52nd Street to West 53rd Street. Dump trucks were also placed in front

6 of the Sheraton to prevent cars from driving into the hotel and to protect

7 against explosives.

8

At some point, the Officers placed an additional barricade on the

9 “press pen,” enclosing it on all four sides. It is unclear whether this closure

10 occurred before or after the President’s arrival, and the Officers cannot iden‐

11 tify who ordered the closure. After the last barricade was put in place, OWS

12 protesters learned that they were not permitted to leave the area because the

13 area had been ordered “frozen.” The Officers advised the protesters that

14 they could expect to be released from the press pen once President Obama

15 was safely inside the Sheraton. Subsequently, the Officers advised the pro‐

16 testers that they would be released after President Obama left the vicinity.

8

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1 The protesters could not leave the press pen until the N.Y.P.D. permitted

2 them to do so.4

3

After the President arrived at the Sheraton and while he was inside

4 the hotel, the Officers allowed traffic and pedestrians to flow freely on 7th

5 Avenue. The OWS protesters, however, were required to remain in the press

6 pen. Indeed, the Officers threatened to arrest any OWS protesters who tried

7 to leave the press pen. Meanwhile, tourists and journalists in the press pen

8 were allowed to leave. During the President’s time at the Sheraton, two pro‐

9 testers in the press pen developed health issues, and the Officers offered to

10 call for an ambulance. One of those protesters chose to stay; the other left by

11 ambulance. Shortly after the President departed the hotel at 10:25 p.m., the

12 protesters were permitted to leave the press pen.

13

The OWS protesters filed this lawsuit asserting federal claims under

14 42 U.S.C. § 1983 that the Officers had violated their First, Fourth, and Four‐

15 teenth Amendment rights, both directly by detaining them and indirectly

16 by failing to intervene to stop the constitutional violations. The protesters

17 further asserted state law claims based on the same conduct. The Officers

4

Undisputedly authentic video evidence, part of the record on appeal, cap‐

tured much of the scene.

9

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1 moved for summary judgment on the grounds that the protesters’ constitu‐

2 tional challenges failed as a matter of law and that, even if they did not fail,

3 the Officers were entitled to qualified immunity.5

4

The district court determined there was a dispute of material fact with

5 respect to the Officers’ motive for fully enclosing the press pen. On the basis

6 of that factual dispute, which the court determined precluded recognition

7 of qualified immunity, it denied the Officers summary judgment on the

8 OWS protesters’ federal claims. According to the district court, if the Offic‐

9 ers had detained the protesters due to a motivation “more sinister” than

10 “presidential security,” a proposition the court had to assume on summary

11 judgment, then “clearly established law at the time of [the] detention could

12 support” each of the OWS protesters’ § 1983 claims. Berg et al. v. New York

13 City Police Comm’r Raymond Kelly et al., No. 12‐cv‐3391 (TPG), 2016 WL

14 4257525, at *6 (S.D.N.Y. Aug. 10, 2016).

5

The district court dismissed the protesters’ claims against Raymond Kelly,

Commissioner of the N.Y.P.D., and Joseph Esposito, Chief of Department of the N.Y.P.D.

Because the protesters’ complaint barely mentioned these defendants, and neither was

present at the protest, the district court concluded the protesters’ claims against these of‐

ficers failed as a matter of law. It also dismissed the protesters’ state law claims as dupli‐

cative of its federal claims. Neither of these rulings are at issue on this appeal.

10

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1

The Officers appealed from the district court’s ruling denying them

2 qualified immunity. Before this Court the protesters moved to dismiss for

3 lack of appellate jurisdiction. We denied the OWS protesters’ motion and

4 concluded that we have jurisdiction over this appeal “to the extent that [the

5 Officers] can support their defense on [the protesters’] ‘version of the facts

6 that the district judge deemed available for jury resolution.’” Order, No. 16‐

7 3146 (Jan 11, 2017) (quoting Lynch v. Ackley, 811 F.3d 569, 576 (2d Cir. 2016)).

8

The gravamen of Appellant Officers’ argument is that the special

9 needs exception applicable to the analysis of Fourth Amendment seizures,

10 see Michigan Dep’t of State Police v. Sitz, 496 U.S. 444, 449 – 50 (1990), justified

11 their almost two‐hour‐long detention of the OWS protesters in the vicinity

12 of where the President was attending a fundraising dinner. According to the

13 Officers, the circumstances requiring them to focus their attention on the

14 President’s security were a sufficient basis to except the detention of the pro‐

15 testers from the Fourth Amendment’s requirement that their seizure be sup‐

16 ported by probable cause, and in any event, it was reasonable for the Offic‐

17 ers to believe that their actions were lawful given existing precedent. Appel‐

18 lee OWS protesters, on the other hand, would have us ignore whether it was

11

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1 objectively reasonable for the Officers to believe, under the circumstances,

2 that they were acting within the dictates of the law. Instead, the protesters

3 want this Court to hold, regardless of the objective reasonableness of the

4 Officers’ actions, that the Officers are not entitled to qualified immunity

5 once we determine they violated a clearly established right. In so urging,

6 Appellees argue that the Officers’ subjective intent in applying the special

7 needs exception is in dispute, and thus the Officers are not entitled to qual‐

8 ified immunity on summary judgment. The OWS protesters dispute, in any

9 event, whether a special needs exception should apply in the context of what

10 occurred in this case.

11

In the analysis that follows, we address first the question of jurisdic‐

12 tion and conclude that we have jurisdiction to resolve the Officers’ appeal

13 in the procedural posture presented. We then consider whether the Officers

14 are entitled to summary judgment because there was no violation of the pro‐

15 testers’ Fourth Amendment rights. Because that conclusion cannot be

16 reached as a matter of law on the present record, we proceed to consider

17 whether the Officers are entitled to qualified immunity in any event because

18 then‐existing law did not clearly establish the unconstitutionality of the

12

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1 challenged detentions. We conclude that the Officers do have qualified im‐

2 munity from the protesters’ Fourth Amendment claims and that such im‐

3 munity also bars the OWS protesters’ remaining claims under the First and

4 Fourteenth Amendments.

5

III.

6

We have appellate jurisdiction under the collateral order doctrine to

7 hear an interlocutory appeal from the district court’s denial of qualified im‐

8 munity. Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). Where, as here, denial

9 of qualified immunity turns on questions of law, the court’s decision consti‐

10 tutes a final appealable order under 28 U.S.C. § 1291 that we review de novo.

11 Clubside, Inc. v. Valentin, 468 F.3d 144, 151 – 52 (2d Cir. 2006). The Officers

12 having moved for summary judgment, we construe the evidence in the light

13 most favorable to the OWS protesters. See id. Summary judgment may be

14 granted only if “there is no genuine dispute as to any material fact and the

15 movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

16

IV.

17

In Saucier v. Katz, 533 U.S. 194, 200 (2001), the Supreme Court held

18 that, when confronted with a question of law regarding the applicability of

13

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1 qualified immunity in a Section 1983 suit, federal courts should first deter‐

2 mine “whether a constitutional right would have been violated on the facts

3 alleged,” proceeding to the question of whether the right was clearly estab‐

4 lished only if they answer the first question in the affirmative. The Court

5 altered that framework eight years later in Pearson v. Callahan, 555 U.S. 223

6 (2009), holding that “courts should have the discretion to decide whether

7 [the Saucier] procedure is worthwhile in particular cases.” Id. at 242. Because

8 the question presented here “do[es] not frequently arise in cases in which a

9 qualified immunity defense is unavailable,” Plumhoff v. Rickard, 134 S. Ct.

10 2012, 2020 (2014), we think it will be “worthwhile” to exercise that discretion

11 here, Pearson, 555 U.S. at 242. Accordingly, we first address whether, taking

12 the facts in the light most favorable to the protesters, the Officers are entitled

13 to summary judgment because no constitutional violation occurred. We de‐

14 cide that we cannot reach that conclusion as a matter of law on the present

15 record.

16

A.

17

The OWS protesters assert they were falsely arrested in violation of

18 their Fourth Amendment right to be free from unreasonable seizures when

14

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1 they were detained in the press pen for approximately two hours while the

2 President was across the street and inside the Sheraton Hotel. To establish a

3 § 1983 claim for false arrest, the OWS protesters must adduce evidence that:

4 (i) the Officers intended to confine them; (ii) OWS protesters were conscious

5 of the confinement and did not consent to it; (iii) the OWS protesters did not

6 consent to being confined; and (iv) the confinement was not otherwise priv‐

7 ileged. Jocks v. Tavernier, 316 F.3d 128, 134 – 35 (2d Cir. 2003) (citation omit‐

8 ted). The protesters’ ability to satisfy the first three requirements is not dis‐

9 puted; what is at issue is whether the detention was privileged under the

10 “special needs” exception to the Fourth Amendment’s general probable

11 cause requirement. See, e.g., City of Indianapolis v. Edmond, 531 U.S. 32, 54

12 (2000).

13

The special needs exception recognizes as constitutionally reasonable

14 limited searches or temporary seizures that serve “special needs beyond the

15 normal need for law enforcement,” where “the warrant and probable‐cause

16 requirement [are] impracticable.” Skinner v. Railway Labor Execs. Ass’n, 489

17 U.S. 602, 619 (1989) (quoting Griffin v. Wisconsin, 483 U.S. 868, 873 (1987));

18 see also Ferguson v. City of Charleston, 532 U.S. 67, 79 – 85 (2001) (explaining,

15

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1 in the search context, that the special need must be separate from the general

2 interest in crime control); Edmond, 531 U.S. at 37 (collecting special needs

3 cases). After a court determines whether the search or seizure served a “spe‐

4 cial need” distinct from “the ordinary evidence gathering associated with

5 crime investigation,” it must evaluate whether the search or seizure was

6 “reasonable” in light of competing governmental and individual considera‐

7 tions. MacWade v. Kelly, 460 F.3d 260, 268 – 69 (2d Cir. 2006) (quoting Nicholas

8 v. Goord, 430 F.3d 652, 663 (2d Cir. 2005)).

9

B.

10

Here, the professed special need is protecting the President of the

11 United States. As the Supreme Court has recognized, even in cases where

12 the special needs doctrine was not involved, the “Nation undoubtedly has

13 a valid, even an overwhelming, interest in protecting the safety of its Chief

14 Executive and in allowing him to perform his duties without interference

15 from threats.” Watts v. United States, 394 U.S. 705, 707 (1969); see also Hunter

16 v. Bryant, 502 U.S. 224, 229 (1991) (the principle of qualified immunity—that

17 “officials should not err always on the side of caution” for “fear of being

18 sued”—is “nowhere more important than when the specter of Presidential

16

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1 assassination is raised”); id. at 229 – 30 (Stevens, J., dissenting) (“Those who

2 guard the life of the President properly rely on the slightest bits of evi‐

3 dence—nothing more than hunches or suspicion—in taking precautions to

4 avoid the ever‐present danger of assassination.” (internal quotation marks

5 and citation omitted)).

6

This precedent informed the District of Columbia Circuit’s rejection

7 of a Fourth Amendment challenge to the Office of Management and

8 Budget’s policy requiring those of its employees with access to areas fre‐

9 quented by the President or Vice President to undergo random drug testing.

10 Stigile v. Clinton, 110 F.3d 801, 802 (D.C. Cir. 1997). In concluding that “the

11 random drug testing at issue here is justified as a means of protecting the

12 safety of the President and the Vice President,” the Court recognized the

13 special need to protect the President and Vice President, which was “clearly

14 beyond the normal need for law enforcement” but of the “utmost im‐

15 portance” because “[f]ew events debilitate the nation more than the assassi‐

16 nation of a President.” Id. at 802 – 03 (internal quotation marks omitted).

17

In recent years, the Supreme Court has emphasized the importance of

18 Presidential safety in the context of granting qualified immunity to officers

17

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1 sued for actions taken to protect the President or Vice President. In Saucier,

2 the Court ruled that a military police officer was qualifiedly immune from

3 suit for using excessive force against a person protesting a speech by Vice

4 President Gore. 533 U.S. at 208 – 09. The Court observed that the officer “did

5 not know the full extent of the threat respondent posed or how many other

6 persons there might be who, in concert with respondent, posed a threat to

7 the security of the Vice President,” and, given that “[t]here were other po‐

8 tential protesters in the crowd,” the officer “was required to recognize the

9 necessity to protect the Vice President by securing respondent and restoring

10 order to the scene.” Id. at 208. Thus, the Court concluded that “[i]t cannot be

11 said there was a clearly established rule that would prohibit using the force

12 petitioner did . . . .” Id. at 208 – 09.

13

In Reichle v. Howards, 566 U.S. 658, 660 (2012), the Court held Secret

14 Service agents immune from suit for the retaliatory arrest of a person pro‐

15 testing Vice President Cheney because they had probable cause to think the

16 protester had committed a federal crime. Justice Ginsburg, concurring in

17 that decision, observed that “[o]fficers assigned to protect public officials

18 must make singularly swift, on the spot, decisions whether the safety of the

18

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1 person they are guarding is in jeopardy.” Id. at 671. Most recently, in Wood

2 v. Moss, 134 S. Ct. 2056 (2014), the Supreme Court granted Secret Service

3 agents qualified immunity from a First Amendment suit by persons assert‐

4 ing their opposition to President George W. Bush. The protesters com‐

5 plained that, after the President made an unplanned stop at a restaurant,

6 they were moved to a site further away from him while Bush supporters

7 were not. Id. at 2061– 64. There was no claim of probable cause to think the

8 protesters planned to commit any crime. Nevertheless, the Supreme Court

9 concluded that the agents’ actions were objectively reasonable in light of a

10 valid security concern that the anti‐Bush protesters, before they were relo‐

11 cated, were within “weapons range” of the President dining on the patio. Id.

12 at 2070. The Secret Service’s maps and travel plans, moreover, refuted argu‐

13 ments that the basis for relocating the protesters was their political view‐

14 points. Id. at 2069.

15

Of this precedent, only Stigile directly identifies protection of the Pres‐

16 ident as a “special need,” and it does so in the context of a search, not a

17 seizure. Nonetheless, these cases all generally recognize protection of the

19

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1 President as a special need apart from routine law enforcement. See Fergu‐

2 son, 532 U.S. at 79 (identifying special needs as those “divorced from the

3 State’s general interest in law enforcement”).

4

In light of the Supreme Court’s long recognition of the importance of

5 protecting the President of the United States, we conclude that, as a matter

6 of law, the circumstances of November 30, 2011, presented Officers with a

7 special need.

8

C.

9

Having identified a special need, to assess the reasonableness of the

10 Officers’ detention actions we must weigh the public interest served by

11 those actions against the intrusion on the OWS protesters’ Fourth Amend‐

12 ment right to be free from unreasonable seizures. See Skinner, 489 U.S. at 619;

13 cf. Terry v. Ohio, 392 U.S. 1, 16 (1968) (“[W]henever a police officer accosts an

14 individual and restrains his freedom to walk away, he has ‘seized’ that per‐

15 son.”). We have identified four “balancing factors” that are relevant to the

16 reasonableness inquiry in the “special needs” context:

17

(1) the weight and immediacy of the government interest;

18

(2) the nature of the [liberty] interest allegedly compromised

20

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1

by the [detention]; (3) the character of the [deprivation] im‐

2

posed by the [detention]; and (4) the efficacy of the [deten‐

3

tion] in advancing the government interest.

4 MacWade, 460 F.3d at 269 (internal quotation marks and citations omitted).

5

For the reasons explained above, protecting the President’s safety is a

6 uniquely important government interest. See Wood, 134 S. Ct. at 2067 (recog‐

7 nizing the “overwhelming[] interest in protecting the safety of [the] Chief

8 Executive” (quoting Watts, 394 U.S. at 707)). But the liberty interest compro‐

9 mised by the protesters’ detention is not to be dismissed out of hand, par‐

10 ticularly given that its almost‐two hours’ duration is a far cry from the de

11 minimis vehicle detentions that have previously been approved under the

12 special needs exception. See, e.g., Illinois v. Lidster, 540 U.S. 419, 427 (2004)

13 (police information checkpoint regarding hit‐and‐run required “only a brief

14 wait in line—a very few minutes at most” and “only a few seconds” of police

15 contact); Sitz, 496 U.S. at 448 (average delay for each vehicle at sobriety

16 checkpoint was approximately 25 seconds); United States v. Martinez‐Fuerte,

17 428 U.S. 543, 547 (1976) (average length of inspection at vehicle checkpoint

18 near border was three to five minutes). Moreover, for the two hours they

19 were detained, the protesters could not use a restroom. And those who felt

21

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1 ill were forced to choose between waiting out the detention period and de‐

2 parting by ambulance.

3

We recognize, as the Officers argue, that the protesters’ loss of liberty

4 was limited to their freedom to depart the area for the two hours at issue.

5 Specifically, the protesters were not handcuffed, searched, questioned, or

6 transported to a police station. But this does not allow a court to conclude

7 as a matter of law that the two‐hour detention was a reasonable means of

8 meeting the special need presented. Non‐protesters, for example, were per‐

9 mitted to leave the area after President Obama entered the Sheraton and was

10 no longer in the line of sight of those on Seventh Avenue. The Officers con‐

11 tend that the protesters presented unique security concerns because of the

12 size of their group (more than 50), but no evidence was adduced as to why,

13 after the President had entered the hotel and for the two hours he remained

14 there, the protesters could not have been released from the press pen to pro‐

15 ceed out of the area in smaller groups over time.

16

The record evidence regarding relevant police practices is sparse.

17 What there is does not compel the legal conclusion of special needs urged

22

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1 by the Officers. To the contrary, the NYPD’s own Patrol Guide advises of‐

2 ficers to permit demonstrators “to leave a barriered area at any time.” Ap‐

3 pendix at 572. To be sure, this advice pertains to protesters generally, not to

4 circumstances involving the President. But no record evidence identifies a

5 risk to President Obama’s safety if the protesters were permitted to leave in

6 small groups, as provided in the Guide.6 Accordingly, on the record at sum‐

7 mary judgment, we cannot conclude as a matter of law that there was “‘a

8 close and substantial relationship’ . . . between the degree of intrusiveness

9 [on the protesters’ liberty interests] and the governmental need asserted.”

10 Cassidy v. Chertoff, 471 F.3d 67, 81 (2d Cir. 2006) (quoting United States v.

11 Lifshitz, 369 F.3d 173, 186 (2d Cir. 2004).

12

V.

13

Qualified immunity protects officers from suit so long as “their con‐

14 duct does not violate clearly established statutory or constitutional rights of

15 which a reasonable person would have known.” Harlow v. Fitzgerald, 457

16 U.S. 800, 818 (1982). We “do[ ] not require a case directly on point for a right

6

This is not to say that the Officers could not introduce evidence to support

a finding of efficacy. But, in the absence of such evidence, we cannot conclude on sum‐

mary judgment that the protesters’ detention advanced President Obama’s physical safety

so as to be reasonable in light of the special need presented.

23

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1 to be clearly established”; nevertheless, “existing precedent must have

2 placed the statutory or constitutional question beyond debate.” White v.

3 Pauly, 137 S. Ct. 548, 551 (2017) (citation and internal quotation marks omit‐

4 ted). This is because qualified immunity “protects all but the plainly incom‐

5 petent or those who knowingly violate the law.” Mullenix v. Luna, 136 S. Ct.

6 305, 308 (2015) (citation and internal quotation marks omitted) (emphasis

7 added).

8

Thus, “the qualified immunity defense . . . protects an official if it was

9 ‘objectively reasonable’ for him at the time of the challenged action to be‐

10 lieve his acts were lawful.” Taravella v. Town of Wolcott, 599 F.3d 129, 134 (2d

11 Cir. 2010) (citation omitted). “[W]hether a defendant official’s conduct was

12 objectively reasonable, i.e., whether a reasonable official would reasonably

13 believe his conduct did not violate a clearly established right, is a mixed

14 question of law and fact.” Id. (citation and internal quotation marks omitted)

15 (emphasis added). Even so, the objective legal reasonableness of an officer’s

16 action can be decided as a matter of law “in those cases where the facts con‐

24

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1 cerning the availability of the defense are undisputed” or viewed most fa‐

2 vorably to plaintiffs. Higazy v. Templeton, 505 F.3d 161, 170, 174 (2d Cir. 2007)

3 (citation and internal quotation marks omitted).

4

In applying these principles here, we begin with the district court’s

5 conclusion that “why the protesters were detained” presented a genuine is‐

6 sue of material fact that precluded summary judgment. Berg, 2016 WL

7 4257525, at *4 (emphasis in original) (noting that even the N.Y.P.D. sector

8 commander “admitted that he was unaware of any reason why his officers

9 closed the press pen”). The conclusion runs afoul of existing precedent,

10 which holds that “determining whether official conduct was objectively rea‐

11 sonable requires examination of the information possessed by the officials

12 at that time (without consideration of subjective intent).” Connecticut ex rel.

13 Blumenthal v. Crotty, 346 F.3d 84, 106 (2d Cir. 2003) (alteration, citation, and

14 internal quotation marks omitted); accord Garcia v. Does, 779 F.3d 84, 92 (2d

15 Cir. 2015). In Crotty, we held that the “intent, motive or beliefs” of officials

16 in enforcing the Nonresident Lobster Law (which was subsequently found

17 to be unconstitutional) were irrelevant to the qualified immunity analysis.

18 346 F.3d at 106. This is because “[i]nclusion of a subjective component, as

25

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1 the Supreme Court instructed, produces inconsistent results and defeats the 2 purpose of the doctrine by creating a factual issue requiring resolution by a 3 jury.” Id. (citing Harlow, 457 U.S. at 815–16). In Garcia, we held that officers 4 were entitled to qualified immunity against a suit for false arrest brought by 5 a group of plaintiffs who had been arrested during a demonstration in sup‐ 6 port of Occupy Wall Street. There it was undisputed that the defendants 7 “had, from their personal observations, sufficient evidence to establish 8 probable cause on each of the elements of a disorderly conduct violation.” 9 779 F.3d at 92. In such circumstances, it was objectively reasonable for de‐ 10 fendants to arrest the protesters. In urging otherwise, the Garcia plaintiffs 11 argued that they reasonably believed the defendants had given them per‐ 12 mission to cross the Brooklyn Bridge on the vehicular roadway. Id. at 93. The 13 court explained that the plaintiffs’ beliefs were not relevant to the qualified 14 immunity analysis. Id. And further, the defendant police officers were enti‐ 15 tled to qualified immunity because even in the “confused and boisterous 16 situation” in which they found themselves, it was objectively reasonable for 17 them to think that the plaintiffs were illegally blocking a roadway and that
26

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1 “no official had expressly authorized the protesters to cross the Bridge via

2 the roadway.” Id. at 93.

3

The OWS protesters here argue that because “the [Officers] cannot

4 identify the individual who made the decision, much less a non‐speculative

5 justification for the decision to trap the demonstrators,” the Officers are not

6 entitled to qualified immunity. Appellees’ Br. at 19. That reasoning is mis‐

7 guided.7 In a court’s analysis of probable cause for an arrest, it is clear that

8 “an arresting officer’s state of mind . . . is irrelevant to the existence of prob‐

9 able cause”; indeed, the officer’s “subjective reason for making the arrest

10 need not be the criminal offense as to which the known facts [objectively]

11 provide probable cause.” Devenpeck v. Alford, 543 U.S. 146, 153 (2004). Stated

12 differently, “a claim for false arrest turns only on whether probable cause

13 existed to arrest a defendant, and . . . it is not relevant whether probable

14 cause existed with respect to each individual charge, or, indeed, any charge

15 actually invoked by the arresting officer at the time of the arrest.” Jaegly v.

16 Couch, 439 F.3d 149, 154 (2d Cir. 2006). In both Devenpeck and Jaegly it was

7

Although the protesters did not raise this specific argument before the dis‐

trict court, the district court did consider its substance as one of the factors in determining

that the Officers were not entitled to qualified immunity. Berg, 2016 WL 4257525, at *4.

27

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1 held that officers who had objective probable cause to arrest individuals for

2 any crime—whether or not that particular crime was closely related to the

3 offense the officers said was the reason for arrest—were not subject to dam‐

4 ages for false arrest under § 1983.

5

A.

6

We have applied an objective analytical framework when assessing

7 qualified immunity based on special need. See Moore v. Vega, 371 F.3d 110,

8 116 (2d Cir. 2004) (stating that where qualified immunity is based on

9 claimed special need to search parolee’s residence, the issue “is whether, in

10 light of clearly established law and the information they possessed, the de‐

11 fendants could have reasonably believed their search of plaintiff’s home to

12 be lawful”). So here, we ask whether, under well‐established law at the time,

13 and based on these facts, an officer could reasonably have believed that the

14 actions taken to detain the OWS protesters were lawful in light of the special

15 need to protect the President. Saucier, 533 U.S. at 202. We answer that in‐

16 quiry in the affirmative.

17

Few cases address the manner in which a detention (as opposed to a

18 search) should be balanced against a governmental interest in the “special

28

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1 needs” context. Nevertheless, the cases addressing the particular special

2 need at issue here have emphasized the critical importance of protecting

3 Presidential safety. See Hunter, 502 U.S. at 229 (noting that qualified im‐

4 munity’s tolerance for reasonable error “is nowhere more important” than

5 when protecting the life of the President).

6

In light of the government’s well‐recognized “overwhelming” inter‐

7 est in the President’s safety, Wood, 134 S. Ct. at 2067, an objectively reasonable

8 officer could have thought that the temporary detention here offered a per‐

9 missible method of serving the heightened security need that exists during a

10 Presidential visit.

11

Protecting the President in New York City routinely involves closing

12 streets and cutting off traffic. See, e.g., Sarah Maslin Nir, One‐Man Traffic Jam

13 Will Hit City When Trump Visits, N.Y. Times, Jan. 28, 2017, at A18; Obama in

14 NYC Thursday for Fundraisers; Traffic Alerts, NBC New York, June 22, 2011.

15 We have also observed, even in the First Amendment context, that “the gov‐

16 ernment ha[s] a significant interest in ensuring that [a] protest remain[s]

17 within [a designated area].” Kass v. City of New York, 864 F.3d 200, 208 (2d

18 Cir. 2017). In Kass, the applicable interest was “maintaining public safety and

29

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1 order” and keeping public spaces “safe and free of congestion.” Id. (internal

2 quotation marks omitted). The interest in protecting the President can be

3 seen as of even greater public importance. See Watts, 394 U.S. at 707. Officers

4 charged with the duty of protecting the President reasonably could have con‐

5 cluded that—where OWS protesters had left the unrestricted designated pro‐

6 test area and entered an area set aside not for them but for the press—a rea‐

7 sonable way to allow the protesters to pursue their protest without risk that

8 they would attempt to get closer still to the President was to require them to

9 remain in the press pen until the President departed the area. With the ben‐

10 efit of hindsight, other means might be imagined to safeguard the President

11 while also allowing plaintiffs to protest with less restriction on their freedom

12 of movement. But the officers were balancing a number of legitimate con‐

13 cerns, including consideration for First and Fourth Amendment rights, in a

14 dynamic situation. At the time in question no clearly established law sig‐

15 naled that the Officers’ conduct fell outside the special needs doctrine.

16

Indeed, in the context of a routine law enforcement stop, a police of‐

17 ficer with reasonable suspicion of criminal activity can detain a person for

18 such time as is reasonably necessary to resolve that suspicion. See Terry, 392

30

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1 U.S. at 21; Grice v. McVeigh, 873 F.3d 162, 167 – 68 (2d Cir. 2017). Police officers

2 charged with protecting the President thus might have reasonably believed

3 that they could temporarily deny freedom of movement to persons on the

4 scene, perhaps even until the President had departed. In short, while the pre‐

5 sent record does not permit us to conclude, as a matter of law, that the Offic‐

6 ers’ actions went no further than the special need to protect the President

7 warranted, no then clearly established law would have alerted reasonable

8 officers that their actions did not fall within the special needs exception.

9

Nor is a different conclusion warranted because the police did not

10 deny all pedestrians and traffic movement to the same degree as the pro‐

11 testers. Reasonable officers might have been particularly alert to risks posed

12 by the Occupy Wall Street protesters, whose professed intent was to “#Oc‐

13 cupyObama.” See Reichle, 566 U.S. at 672 (Ginsburg, J., concurring) (finding

14 that Secret Service agents were “duty bound” to take into account the con‐

15 tent of an anti‐Iraq‐War protester’s statement to the Vice President when

16 assessing whether he posed a threat). That a reasonable officer might objec‐

17 tively think that OWS protesters would not leave the area upon release but,

31

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1 rather, would attempt to approach or gain access to the hotel and the Presi‐

2 dent found some support in other OWS protesters’ actions only weeks ear‐

3 lier in shutting down the Brooklyn Bridge. See Garcia, 779 F.3d at 88 (describ‐

4 ing Occupy Wall Street October 1, 2011 demonstration precluding traffic

5 moving on Brooklyn Bridge).

6

In sum, in the absence of clearly established law prohibiting the chal‐

7 lenged detentions in the circumstances presented, the Officers are entitled

8 to qualified immunity. See Pauly, 137 S. Ct. at 552 (requiring that “clearly

9 established law” be “particularized to the facts of the case” (internal quota‐

10 tion marks omitted)).

11

B.

12

The OWS protesters also assert that they were unlawfully detained

13 for the duration of the President’s visit in retaliation for exercising their First

14 Amendment rights. Because the Officers have qualified immunity from suit

15 based on their temporary detention of the protesters, these claims also fail.

16

In Singer v. Fulton County Sheriff, 63 F.3d 110, 120 (2d Cir. 1995), we

17 concluded that “if [an] officer either had probable cause or was qualifiedly

18 immune from subsequent suit (due to an objectively reasonable belief that

32

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1 he had probable cause), then we will not examine the officer’s underlying

2 motive in arresting and charging the plaintiff.” The same reasoning applies

3 to qualified immunity based on an objectively reasonable belief of special

4 needs. We have determined above that officers in the position of protecting

5 the President, as here, would have an objectively reasonable belief under the

6 circumstances that the special needs presented in this case justified their lim‐

7 ited detention of the protesters. Our rationale in Singer thus accords the Of‐

8 ficers qualified immunity from the protesters’ retaliation claims.

9

C.

10

The protesters’ claim that certain officers failed to intervene to protect

11 constitutional violations likewise fails. To recover on a claim for “[f]ailure to

12 intercede to prevent an unlawful arrest,” plaintiffs “must still overcome the

13 hurdle of qualified immunity.” Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123,

14 129 (2d Cir. 1997). A non‐intervening police officer becomes liable when

15 “such failure permitted fellow officers to violate . . . clearly established stat‐

16 utory or constitutional rights of which a reasonable person would have

17 known.” Id. (citation and internal quotation marks omitted). For the same

18 reasons the Officers have qualified immunity for OWS’s detention, it was

33

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1 not “objectively unreasonable” for Officers McNamara, Loehle, and

2 Latalardo to conclude that their “fellow Officers’ conduct did not violate”

3 OWS’s rights. Id.

4

D.

5

The Officers are also entitled to qualified immunity on OWS’s selec‐

6 tive enforcement claim. To assert a claim for selective enforcement, a plain‐

7 tiff must allege: “(1) [that] the person, compared with others similarly situ‐

8 ated, was selectively treated; and (2) that such selective treatment was based

9 on impermissible considerations such as . . . the exercise of constitutional

10 rights . . . .” LaTrieste Rest. & Cabaret Inc. v. Vill. of Port Chester, 40 F.3d 587,

11 590 (2d Cir. 1994) (quoting LeClair v. Saunders, 627 F.2d 606, 609 – 10 (2d Cir.

12 1980)).

13

The Officers argue that in light of Marcavage v. City of New York, 689

14 F.3d 98 (2d Cir. 2012) and Wood, it is unclear that protesters are similarly

15 situated to the general public when Presidential security is concerned. We

16 agree.

34

Case 1C:1a2s-ecv1-60-33319416-,LDAoKc-uGmWeGnt 1D2o0c, u0m7/e2n5t/2103148, F2i3le5d220175/2, 5P/1a8ge3P5aogfe3375 of 37

1

In Marcavage, we held that officers’ establishment of a “no‐demonstra‐

2 tion zone,” which permitted pedestrians and ordinary traffic but not pro‐

3 testers on the sidewalk in front of Madison Square Garden, was a reasonable

4 time, place, and manner restriction, narrowly tailored to the security risks

5 raised by a large group of protesters. 689 F.3d at 104 – 05. The officers had

6 blocked off the sidewalk in response to a convention that both the President

7 and the Vice President were attending. Under Marcavage, it is clear reason‐

8 able officers could proceed on the understanding that the presence of pro‐

9 testers on a sidewalk outside a building where the President was located

10 raised unique concerns that are not raised by the presence of ordinary (non‐

11 protester) pedestrians. Id. at 105.

12

In Wood, the anti‐Bush protesters argued that “had the agents’ pro‐

13 fessed interest in the President’s safety been sincere, the agents would have

14 directed all persons present . . . to be screened or removed from the prem‐

15 ises.” 134 S. Ct. at 2069. Important to our analysis here, the Court in Wood

16 concluded that the individuals dining in the restaurant did not pose the

17 same type of security risks as a group of 200 to 300 people standing outside

18 the restaurant. Id. That the members of the public dining in the restaurant

35

Case 1C:1a2s-ecv1-60-33319416-,LDAoKc-uGmWeGnt 1D2o0c, u0m7/e2n5t/2103148, F2i3le5d220175/2, 5P/1a8ge3P6aogfe3376 of 37

1 did not choose that location to confront the President, and “could not have

2 had any expectation that they would see the President that evening,” ren‐

3 dered the security concerns raised by the protesters distinct from average

4 diners. Id.

5

It is undisputed that the OWS protesters had pre‐planned their pro‐

6 test to challenge the President’s fundraising dinner, promoted the event

7 through social media, and adapted their plan to be as close to the President

8 as possible. The size of the protest, which, according to the protesters, con‐

9 sisted of anywhere from 75 to 200 people, presented unique security con‐

10 cerns. See Wood, 134 S. Ct. at 2069 (explaining that “[t]he Secret Service . . .

11 could take measures to ensure that the relatively small number of people

12 already inside the Inn were kept under close watch; no similar surveillance

13 would have been possible for 200 to 300 people congregating in front of the

14 Inn”). At bottom, a reasonable officer could believe that the OWS protesters

15 were engaged in conduct different from that of regular pedestrians and that

16 the protesters therefore were not similarly situated to those pedestrians. See

17 Marcavage, 689 F.3d at 106 – 07. The Officers are thus entitled to qualified

18 immunity on OWS’s selective enforcement claims.

36

Case 1C:1a2s-ecv1-60-33319416-,LDAoKc-uGmWeGnt 1D2o0c, u0m7/e2n5t/2103148, F2i3le5d220175/2, 5P/1a8ge3P7aogfe3377 of 37

1

VI.

2

Protecting the President’s safety is among the most important of law

3 enforcement duties. The assassination of a President does violence not only

4 to the individual who occupies the office and to the stability of the nation

5 but also to the democratic ideals that guide our system of government. At

6 the same time, the Constitution guarantees citizens freedom from unwar‐

7 ranted infringement of their rights to freedom of expression and movement.

8

For the reasons stated, we cannot conclude that the Officers balanced

9 those competing considerations here in a way that violated clearly estab‐

10 lished law. We thus decide that they are entitled to qualified immunity on

11 the claims asserted against them. The decision of the district court denying

12 the Officers qualified immunity is reversed. The case is remanded with in‐

13 structions to dismiss the complaint with prejudice.

37

 
 Case 1:12-cv-03391-LAK-GWG Document 144 Filed 11/30/18 Page 1 of 12

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

---------------------------------------------------------------X

PHOEBE BERG, et al.,

:

Plaintiffs,

: REPORT AND RECOMMENDATION

-v.-

:

12 Civ. 3391 (LAK) (GWG)

NEW YORK CITY POLICE COMMISSIONER : RAYMOND KELLY, et al.,
: Defendants. ---------------------------------------------------------------X

GABRIEL W. GORENSTEIN, United States Magistrate Judge

On August 10, 2016, the district court issued an opinion granting in part and denying in

part a motion for summary judgment by defendants. The plaintiffs now move for

reconsideration of that opinion to the extent it dismissed their purported claim under Monell v. Department of Social Services, 436 U.S. 658 (1978).1 For the reasons stated below, the

plaintiffs’ motion for reconsideration should be denied.

I. BACKGROUND

As expressed by District Judge Thomas P. Griesa in his August 10, 2016, opinion, this

action arose

out of an Occupy Wall Street protest during President Barack Obama’s November 2011 visit to New York City. Plaintiffs were protestors who were allegedly deprived of their federal and state constitutional rights when New York Police Department (“NYPD”) officers detained them in a barricaded area for over an hour.

1 See Notice of Motion, filed Sept. 10, 2018 (Docket # 138); Memorandum of Law in Support of Plaintiff’s Motion for Reconsideration, filed Sept. 10, 2018 (Docket # 139) (“Pl. Mem.”); Declaration of David B. Rankin, filed Sept. 10, 2018 (Docket # 140); Memorandum of Law in Opposition to Plaintiffs’ Motion for Reconsideration, filed Oct. 12, 2018 (Docket # 141) (“Def. Mem.”); Reply in Support of Motion to Reargue, filed Oct. 22, 2018 (Docket # 142) (“Pl. Reply”).

Case 1:12-cv-03391-LAK-GWG Document 144 Filed 11/30/18 Page 2 of 12
Berg v. New York City Police Comm’r Raymond Kelly, 2016 WL 4257525, at *1 (S.D.N.Y. Aug. 10, 2016).
Following the filing of plaintiffs’ original complaint, see Class Action Complaint, filed Apr. 30, 2012 (Docket # 1), there was a lengthy discovery period, which included four orders granting extensions of the discovery deadlines. See Docket ## 74, 76, 78, minute entry dated Sept. 28, 2015. Plaintiffs filed an Amended Complaint following the close of discovery. See Class Action Amended Complaint, filed Dec. 18, 2015 (Docket # 86) (“Am. Compl.”). As was true of the original complaint, the Amended Complaint named a number of NYPD employees as defendants, including Raymond Kelly, then Commissioner of the NYPD, and Joseph Esposito, then Chief of Department of the NYPD. Am. Compl. ¶¶ 15-16. Defendants then moved for summary judgment as to all of plaintiffs’ claims. See Docket ## 99-102.
Neither the original Complaint nor the Amended Complaint named the City of New York as a defendant. When defendants moved for summary judgment, they did not raise the issue of whether the case could proceed on a claim under the doctrine of Monell v. Department of Social Services, 436 U.S. 658 (1978), which provides for the liability of municipalities for claims made under 42 U.S.C. § 1983. See Memorandum of Law in Support of Defendants’ Motion for Summary Judgment, filed Jan. 21, 2016 (Docket # 101). In their opposition to the defendants’ motion, and in connection with defendants’ efforts to dismiss Kelly and Esposito for lack of personal involvement in the claimed constitutional violations, plaintiffs argued that Kelly and Esposito were liable under Monell because the Amended Complaint stated they were sued in their “official” capacities and because evidence in the case showed a “policy or practice of freezing the whole area while the President was in a building.” Plaintiffs’ Memorandum of Law in Opposition to Defendants’ Motion for Summary Judgment, filed Mar. 11, 2016 (Docket
2

Case 1:12-cv-03391-LAK-GWG Document 144 Filed 11/30/18 Page 3 of 12
# 108), at 17. In their reply memorandum, defendants argued that this was an “unpled municipal liability theory.” Reply Memorandum of Law in Support of Defendants’ Motion for Summary Judgment, filed Mar. 24, 2016 (Docket # 114), at 8. They argued that because plaintiffs “chose to omit such a theory from their complaint they should not be permitted to offer a surprise Monell theory at this time.” Id.
In ruling on the summary judgment motion, Judge Griesa noted that plaintiffs’ “amended complaint barely mentions either defendant” — referring to Kelly and Esposito. Berg, 2016 WL 4257525, at *3. Judge Griesa then noted that “[i]n their opposition brief, plaintiffs belatedly raise [a theory] of supervisory liability under Monell v. Department of Social Services, 436 U.S. 658 (1978).” Id. He ruled, however, that plaintiffs had “failed to plead [this] theory even after amending their complaint.” Id.
As to the remaining claims, Judge Griesa granted the defendants’ motion as to plaintiffs’ state constitutional claims but denied the motion as to the federal constitutional claims, except that he dismissed the claims as to Kelly and Esposito for lack of personal involvement. Id. at *7. Finally, Judge Griesa held that the defendant officers “failed to show that they are entitled to qualified immunity.” Id.
The defendants filed a notice of appeal challenging the denial of qualified immunity. The parties then jointly asked Judge Griesa to extend the time to file any motion for reconsideration of his summary judgment ruling until after the disposition of the appeal. See Joint Letter Motion, filed Sept. 12, 2016 (Docket # 121). Judge Griesa approved this request. See Order, filed Sept. 21, 2016 (Docket # 122).
The Second Circuit’s decision discussed plaintiffs’ constitutional claims at length and concluded that the defendants were entitled to qualified immunity on these claims. See Berg v.
3

Case 1:12-cv-03391-LAK-GWG Document 144 Filed 11/30/18 Page 4 of 12
Kelly, 897 F.3d 99, 103 (2d Cir. 2018). The opinion concluded as follows: “The decision of the district court denying the Officers qualified immunity is reversed. The case is remanded with instructions to dismiss the complaint with prejudice.” Id. at 114.
Under the “mandate rule,” which “is a branch of the law-of-the-case doctrine[,] . . . where issues have been explicitly or implicitly decided on appeal, the district court is obliged, on remand, to follow the decision of the appellate court.” Burrell v. United States, 467 F.3d 160, 165 (2d Cir. 2006) (internal quotation marks and citations omitted); accord United States v. Ben Zvi, 242 F.3d 89, 95 (2d Cir. 2001); United States v. Minicone, 994 F.2d 86, 89 (2d Cir. 1993). “In other words, the trial court is barred from reconsidering or modifying any of its prior decisions that have been ruled on by the court of appeals.” Burrell, 467 F.3d at 165 (citing Minicone, 994 F.2d at 89 (internal citation and quotation marks omitted)). While the Second Circuit’s decision instructed this Court to “dismiss the complaint with prejudice,” the decision also included the following in a footnote:
[t]he district court dismissed the protesters’ claims against Raymond Kelly, Commissioner of the N.Y.P.D., and Joseph Esposito, Chief of Department of the N.Y.P.D. Because the protesters’ complaint barely mentioned these defendants, and neither was present at the protest, the district court concluded the protesters’ claims against these officers failed as a matter of law. It also dismissed the protesters’ state law claims as duplicative of its federal claims. Neither of these rulings are at issue on this appeal. Id. at 104 n.5 (emphasis added). In light of this more specific statement, we construe the Second Circuit’s instruction to dismiss as limited to the claims in the complaint raising any federal constitutional claims. The Second Circuit’s mandate issued on August 15, 2018. See Docket # 137. On September 10, 2018, plaintiffs filed their motion seeking reconsideration of the district court’s dismissal of the claims as to defendants Kelly and Esposito. See Docket # 138; Pl. Mem. at 1.
4

Case 1:12-cv-03391-LAK-GWG Document 144 Filed 11/30/18 Page 5 of 12
II. LAW GOVERNING MOTIONS FOR RECONSIDERATION Motions for reconsideration are governed by Local Civil Rule 6.3, which provides that
the moving party shall set forth “the matters or controlling decisions which counsel believes the Court has overlooked.” Thus, a motion to reconsider is generally denied “unless the moving party can point to controlling decisions or data that the court overlooked — matters, in other words, that might reasonably be expected to alter the conclusion reached by the court.” Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). The decision to grant or deny a motion for reconsideration is “committed to the sound discretion of the district court.” Wilder v. News Corp., 2016 WL 5231819, at *3 (S.D.N.Y. Sept. 21, 2016) (internal quotation marks and citation omitted); accord Shrader, 70 F.3d at 257. “The standard for granting a motion for reconsideration is strict,” RCC Ventures, LLC v. Brandtone Holdings Ltd., 322 F.R.D. 442, 445 (S.D.N.Y. 2017) (citation omitted), and therefore such a motion “is not a vehicle for relitigating old issues, presenting the case under new theories, securing a rehearing on the merits, or otherwise taking a second bite at the apple,” Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012) (internal quotation marks and citation omitted); accord Ortega v. Mutt, 2017 WL 1968296, at *1 (S.D.N.Y. May 11, 2017) (“Reconsideration of a previous order by the Court is an extraordinary remedy to be employed sparingly.”) (internal quotation marks and citation omitted). The Second Circuit has held that “[a] motion for reconsideration should be granted only when the [moving party] identifies an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.” Kolel Beth Yechiel Mechil of Tartikov, Inc. v. YLL Irrevocable Tr., 729 F.3d 99, 104 (2d Cir. 2013) (internal quotation marks and citation omitted).
Further, a party is “barred from making for the first time in a motion for reconsideration 5

Case 1:12-cv-03391-LAK-GWG Document 144 Filed 11/30/18 Page 6 of 12
an argument it could readily have raised when the underlying issue was being briefed but chose not to do so.” City of Austin Police Ret. Sys. v. Kinross Gold Corp., 957 F. Supp. 2d 277, 315 (S.D.N.Y. 2013) (internal quotation marks and citation omitted). In other words, “‘a party may not advance new facts, issues or arguments not previously presented to the Court’ on a motion for reconsideration.” Steinberg v. Elkman, 2016 WL 1604764, at *1 (S.D.N.Y. Apr. 6, 2016) (quoting Nat’l Union Fire Ins. Co. of Pittsburgh v. Stroh Cos., 265 F.3d 97, 115 (2d Cir. 2001)); accord Sigmon v. Goldman Sachs Mortg. Co., 229 F. Supp. 3d 254, 257 (S.D.N.Y. 2017).
Additionally, the “reconsideration rule” must be “narrowly construed and strictly applied so as to avoid duplicative rulings on previously considered issues.” Merced Irrigation Dist. v. Barclays Bank PLC, 178 F. Supp. 3d 181, 183 (S.D.N.Y. 2016) (internal citation and quotation marks omitted). A narrow application of the rule not only “helps ‘to ensure the finality of decisions,’” but also “‘prevent[s] the practice of a losing party examining a decision and then plugging the gaps of a lost motion with additional matters.’” Henderson v. Metro. Bank & Tr. Co., 502 F. Supp. 2d 372, 376 (S.D.N.Y. 2007) (quoting Naiman v. N.Y. Univ. Hosps. Ctr., 2005 WL 926904, at *1 (S.D.N.Y. Apr. 21, 2005)); see also Hernandez v. Loans, 2016 WL 6561415, at *1 (S.D.N.Y. Oct. 24, 2016) (a reconsideration motion “should be denied where the moving party merely seeks to relitigate an issue that was previously decided”) (citing Shrader, 70 F.3d at 257). III. DISCUSSION
Plaintiffs do not argue that there has been an “intervening change of controlling law” or that there is now “the availability of new evidence” as provided in Kolel Beth Yechiel Mechil of Tartikov, 729 F.3d at 104. Instead, they argue that the dismissal “must be reconsidered in the interest of correcting error and preventing manifest injustice.” Pl. Mem. at 2; see Kolel Beth
6

Case 1:12-cv-03391-LAK-GWG Document 144 Filed 11/30/18 Page 7 of 12
Yechiel Mechil of Tartikov, 729 F.3d at 104. Plaintiffs’ argument, however, fails to show that Judge Griesa erred, let alone clearly erred, when he determined that the plaintiffs had “failed to plead [a Monell] theory even after amending their complaint.” Berg, 2016 WL 4257525, at *3.
Plaintiffs’ first argument is to point to case law recognizing that “a suit against an official in his or her official capacity is not a suit against the official personally but is a suit against the entity that the official represents.” Pl. Mem. at 3 (citing Kentucky v. Graham, 473 U.S. 159, 159 (1985)). That proposition, however, is not contested by defendants and is entirely consistent with Judge Griesa’s ruling. What plaintiffs fail to do is show that their complaint in fact pleaded a claim for Monell liability and thus that Judge Griesa committed “clear error” in holding otherwise.
Under Monell, municipalities may be treated as “persons” for the purpose of § 1983 claims “where . . . the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by [the municipality’s] officers.” 436 U.S. at 690; accord Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 124-25 (2d Cir. 2004). Thus, to prevail on a Monell claim, a plaintiff must show “(1) actions taken under color of law; (2) deprivation of a constitutional or statutory right; (3) causation; (4) damages; and (5) that an official policy of the municipality caused the constitutional injury.” Roe v. City of Waterbury, 542 F.3d 31, 36 (2d Cir. 2008).2
2 To establish the existence of a policy, the plaintiff must allege one of the following: (1) a formal policy which is officially endorsed by the municipality; (2) actions taken or decisions made by government officials responsible for establishing municipal policies which caused the alleged violation of the plaintiff’s civil rights; (3) a practice so persistent and widespread that it constitutes a “custom or usage” and implies the constructive knowledge of policy-making officials; or (4) a failure by official policy-makers to properly train or supervise subordinates to
7

Case 1:12-cv-03391-LAK-GWG Document 144 Filed 11/30/18 Page 8 of 12
A municipality cannot be held liable on the basis of respondeat superior. Monell, 436 U.S. at 693-94; accord Roe, 542 F.3d at 36; Plair v. City of New York, 789 F. Supp. 2d 459, 468 (S.D.N.Y. 2011). Rather, the plaintiff must “demonstrate that, through its deliberate conduct, the municipality was the ‘moving force’ behind the injury alleged.” Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 404 (1997). Thus, “[p]roof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell, unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy, which policy can be attributed to a municipal policymaker.” City of Okla. City v. Tuttle, 471 U.S. 808, 823–24 (1985); accord Plair, 789 F. Supp. 2d at 470 (“[I]t is well established that a single incident does not give rise to an unlawful practice by subordinate officials so permanent and well-settled as to constitute custom or usage.”) (internal quotation marks and citation omitted) (citing cases).
Here, there is nothing in the Amended Complaint suggesting that plaintiffs were making a claim under Monell. Plaintiffs never contended the City of New York had an “official policy” that “caused the constitutional injury.” Roe, 542 F.3d at 36. Instead, the complaint recites in detail a single incident of alleged unconstitutional conduct occurring on November 30, 2011, on West 53rd Street in Manhattan, when the plaintiffs were detained and kept inside a “pen” set up for the press for approximately two hours. See Am. Compl. ¶¶ 28-42, 51, 60. The Amended Complaint does not describe an official policy that resulted in the decision to keep plaintiffs in this pen. To the contrary, it alleges that the defendants’ conduct “violated” the NYPD’s official
such an extent that it “amounts to deliberate indifference to the rights of those with whom municipal employees will come into contact.” Jones v. Westchester Cnty. Dep’t of Corr. Med. Dep’t, 557 F. Supp. 2d 408, 417 (S.D.N.Y. 2008) (quoting and citing Moray v. City of Yonkers, 924 F. Supp. 8, 12 (S.D.N.Y. 1996)).
8

Case 1:12-cv-03391-LAK-GWG Document 144 Filed 11/30/18 Page 9 of 12
policy of allowing attendees at demonstrations to “leave and return.” Am. Compl. ¶ 3 (quoting Stipulation of Settlement and Order, Stauber v. City of New York, 03 Civ. 9162, filed March 31, 2008 (Docket # 14) (Sweet, J.) (“Stauber Settlement and Order”)); accord id. ¶¶ 86, 91, 96, 101. This is precisely the sort of “single incident” of unconstitutional conduct that cannot support a Monell claim. Indeed, the only allegations in the Amended Complaint that plaintiffs assert support their argument that it raises a Monell claim, see Pl. Reply at 1, are allegations of how the City policy that was allegedly violated by the defendant officers came into effect, see Am. Compl. ¶¶ 23-27 (citing and quoting Stauber Settlement and Order) — not allegations that there was a policy that was a “moving force” in causing plaintiffs to be kept in the pen.
In light of the complete absence of any allegation that the City of New York — or defendants Kelly and Esposito in their official capacities — had a policy that caused plaintiffs to be confined on November 30, 2011, plaintiffs did not plead a Monell claim. Far from committing “clear error,” Judge Griesa properly characterized the Amended Complaint as not including such a claim.
Plaintiffs argue that “the pleadings are not the relevant inquiry in a summary judgment motion” and cite cases to support this proposition. See Pl. Reply at 2. But this statement sweeps far too broadly. While, in the typical case, a court does not examine whether pleadings are sufficient when considering a summary judgment motion because of the possibility that an amendment to the pleadings would cure any defect, the situation is completely different where, as here, neither the original complaint — which suffers from the same defects as the Amended Complaint — nor any other events during the course of discovery gave notice that the claim
9

Case 1:12-cv-03391-LAK-GWG Document 144 Filed 11/30/18 Page 10 of 12
sought to be added was being made.3 Other than pointing to the fact that their complaints stated that Kelly and Esposito were being sued in their “official” capacities, plaintiffs provide no argument that defendants were on notice that plaintiffs were making a Monell claim.
Plaintiffs assert that “[t]he issue before the Court is the sufficiency of the proof.” Pl. Reply. at 2. In fact, that is not the issue. Rather, the issue is whether Judge Griesa’s conclusion that plaintiffs had never “pled” the Monell claim should be reconsidered. See Berg, 2016 WL 4257525, at *3. Even if we look to the “proof” plaintiffs point to, it plainly failed to give notice to defendants that plaintiffs were pursuing a Monell claim. Plaintiffs point to the deposition of an Inspector Hart, a non-party police official, who briefly testified that the NYPD’s actions on the day of the incident were proper. See Pl. Mem. at 6-7. But given that the Amended Complaint explicitly alleged that the police officers’ actions that day “violated” a governing policy that would have allowed plaintiffs to leave the pen, see Am. Compl. ¶ 3, Inspector Hart’s testimony could not possibly have given defendants notice that plaintiffs sought to hold the City liable for instituting a policy that led to the alleged constitutional violations. Moreover, defendants have stated without contradiction that plaintiffs took no discovery addressing Monell liability. See Def. Mem. at 5. Under these circumstances, Judge Griesa properly rejected
3 Thus in Caputo v. Pfizer, Inc., 267 F.3d 181 (2d Cir. 2001), one of the cases cited by plaintiffs, the Second Circuit found that a motion under Fed. R. Civ. P. 9(b) need not be considered at the summary judgment stage where, by the time of the summary judgment motion the defendant “had all of the particulars,” id. at 191 n.4, which presumably had been obtained through discovery. The Court also noted that the “policies behind Rule 9(b)” — obviously referring to the notice that pleading fraud with particularity gives defendants — were not served by defendants’ efforts to raise the Rule 9(b) pleading requirements at the summary judgment stage. See id. Here, by contrast, there were no indication that plaintiffs were pursuing a Monell claim.
10

Case 1:12-cv-03391-LAK-GWG Document 144 Filed 11/30/18 Page 11 of 12
plaintiffs’ belated effort to assert a Monell claim.4 Judge Griesa having committed no “clear error,” and plaintiffs having provided no reason
why requiring adherence to standard rules of pleading would work a “manifest injustice,” the summary judgment decision should not be reconsidered. IV. CONCLUSION
For the foregoing reasons, plaintiffs’ motion for reconsideration (Docket # 138) should be denied.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed. R. Civ. P. 6(a), (b), (d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court, with copies sent to the Hon. Lewis A. Kaplan at 500 Pearl Street, New York, New York 10007. Any request for an extension of time to file objections or responses must be directed to Judge Kaplan. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72; Fed. R. Civ. P. 6(a), 6(b), 6(d); Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).
4 While plaintiffs do not seek to amend their complaint to include a Monell claim, any such motion if made now would have to be denied because of plaintiffs’ undue delay in making the motion and the prejudice that would result from allowing the amendment in light of the late stage of this case and the length of time that has passed since the original incident. See generally Foman v. Davis, 371 U.S. 178, 182 (1962).
11

Case 1:12-cv-03391-LAK-GWG Document 144 Filed 11/30/18 Page 12 of 12 Dated: November 30, 2018
New York, New York
12

 
 CLOSED,CASREF,ECF
U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:12−cv−03391−LAK−GWG

Berg et al v. Kelly et al Assigned to: Judge Lewis A. Kaplan Referred to: Magistrate Judge Gabriel W. Gorenstein Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 04/30/2012 Date Terminated: 04/22/2019 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Phoebe Berg individually and on behalf of a class of all others similarly situated

represented by David Bruce Rankin Beldock Levine & Hoffman LLP 99 Park Ave 26th Floor New York, NY 10016 212−490−0400 Fax: 212−277−5880 Email: DRankin@BLHNY.com ATTORNEY TO BE NOTICED

Jennifer Rolnick Borchetta Demos 220 Fifth Avenue, 2nd Fl. New York, NY 10001 212−633−1405 Fax: 212−633−2015 Email: jennb@bronxdefenders.org TERMINATED: 12/20/2013

Jonathan C Moore Beldock Levine & Hoffman LLP 99 Park Ave 26th Floor New York, NY 10016 212−353−9587 Fax: 212−674−4614 Email: jmoore@blhny.com ATTORNEY TO BE NOTICED

Joshua Samuel Moskovitz Beldock Levine & Hoffman LLP 99 Park Ave 26th Floor New York, NY 10016 (212)−490−5823 Fax: (212)−557−0565 Email: moskovitz@bcmlaw.com ATTORNEY TO BE NOTICED

Plaintiff
Toshiro Kida individually and on behalf of a class of all others similarly situated

represented by David Bruce Rankin (See above for address) ATTORNEY TO BE NOTICED

Jennifer Rolnick Borchetta (See above for address) TERMINATED: 12/20/2013

Jonathan C Moore (See above for address) ATTORNEY TO BE NOTICED

Joshua Samuel Moskovitz (See above for address)

Plaintiff John Rivera individually and on behalf of a class of all others similarly situated
Plaintiff Dayna Rozental individually and on behalf of a class of all others similarly situated
Plaintiff Jonathan Jetter individually and on behalf of a class of all others similarly situated
V. Defendant NYCP Commissioner Raymond Kelly

ATTORNEY TO BE NOTICED
represented by David Bruce Rankin (See above for address) ATTORNEY TO BE NOTICED
Jennifer Rolnick Borchetta (See above for address) TERMINATED: 12/20/2013
Jonathan C Moore (See above for address) ATTORNEY TO BE NOTICED
Joshua Samuel Moskovitz (See above for address) ATTORNEY TO BE NOTICED
represented by David Bruce Rankin (See above for address) ATTORNEY TO BE NOTICED
Jennifer Rolnick Borchetta (See above for address) TERMINATED: 12/20/2013
Jonathan C Moore (See above for address) ATTORNEY TO BE NOTICED
Joshua Samuel Moskovitz (See above for address) ATTORNEY TO BE NOTICED
represented by David Bruce Rankin (See above for address) ATTORNEY TO BE NOTICED
Jennifer Rolnick Borchetta (See above for address) TERMINATED: 12/20/2013
Jonathan C Moore (See above for address) ATTORNEY TO BE NOTICED
Joshua Samuel Moskovitz (See above for address) ATTORNEY TO BE NOTICED
represented by Amy Robinson New York City Law Department 100 Church Street New York, NY 10007 (212) 356−3518 Fax: (212) 356−3509

Defendant Chief of NYC P.D. Joseph Esposito
Defendant NYC PD Officer Sgt. Yesenia Ayala Sh. No. 13587 TERMINATED: 12/09/2015

Email: arobinso@law.nyc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dara Lynn Weiss City of New York Law Department 100 Church Street New York, NY 10007 212−356−3517 Fax: 212−788−9776 Email: DAWEISS@LAW.NYC.GOV LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Joseph Lucas NYC Law Department, Office of the Corporation Counsel (NYC) 100 Church Street New York, NY 10007 (212)−788−0303 Fax: (212)−788−8896 Email: alucas@law.nyc.gov TERMINATED: 05/23/2018
Joy Tolulope Anakhu New York City Law Department 100 Church Street New York, NY 10007 (212) 356−2323 Email: janakhu@law.nyc.gov TERMINATED: 05/30/2017 ATTORNEY TO BE NOTICED
represented by Amy Robinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brachah Goykadosh New York City Law Department 100 Church Street New York, NY 10007 (212)−356−3523 Email: bgoykado@law.nyc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Joseph Lucas (See above for address) TERMINATED: 05/23/2018
Joy Tolulope Anakhu (See above for address) TERMINATED: 05/30/2017 ATTORNEY TO BE NOTICED
represented by Amy Robinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brachah Goykadosh

Defendant NYC PD Officer Sgt. Brenda Batcher Sh. No. 18825 TERMINATED: 12/09/2015
Defendant NYC PD Officer Sgt. Mathew Betting Sh. No. 12343 TERMINATED: 12/09/2015
Defendant NYC PD Officer Sgt. Cynthia Boyle Shield No. 6663 TERMINATED: 12/09/2015

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Joseph Lucas (See above for address) TERMINATED: 05/23/2018
Joy Tolulope Anakhu (See above for address) TERMINATED: 05/30/2017
represented by Amy Robinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brachah Goykadosh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Joseph Lucas (See above for address) TERMINATED: 05/23/2018
Joy Tolulope Anakhu (See above for address) TERMINATED: 05/30/2017 ATTORNEY TO BE NOTICED
represented by Amy Robinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brachah Goykadosh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Joseph Lucas (See above for address) TERMINATED: 05/23/2018
Joy Tolulope Anakhu (See above for address) TERMINATED: 05/30/2017 ATTORNEY TO BE NOTICED
represented by Amy Robinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brachah Goykadosh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant NYC PD Officer Sgt. Stephen Carolan 6693 TERMINATED: 12/09/2015
Defendant NYC PD Officer Sgt Michael Casale Sh. No. 30092 TERMINATED: 12/09/2015
Defendant NYC PD Officer Sgt Christopher Clark Sh. No. 30815 TERMINATED: 12/09/2015

Andrew Joseph Lucas (See above for address) TERMINATED: 05/23/2018
Joy Tolulope Anakhu (See above for address) TERMINATED: 05/30/2017 ATTORNEY TO BE NOTICED
represented by Amy Robinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brachah Goykadosh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Joseph Lucas (See above for address) TERMINATED: 05/23/2018
Joy Tolulope Anakhu (See above for address) TERMINATED: 05/30/2017 ATTORNEY TO BE NOTICED
represented by Amy Robinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brachah Goykadosh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Joseph Lucas (See above for address) TERMINATED: 05/23/2018
Joy Tolulope Anakhu (See above for address) TERMINATED: 05/30/2017 ATTORNEY TO BE NOTICED
represented by Amy Robinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brachah Goykadosh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Joseph Lucas (See above for address) TERMINATED: 05/23/2018

Defendant NYC PD Officer Sgt Nathan Collins Sh. No. 11773 TERMINATED: 12/09/2015
Defendant NYC PD Officer Sgt. Francisco Costa Sh. No. 20660 TERMINATED: 12/09/2015
Defendant NYC PD Officer Sgt Jesse Cotton Sh. No. 1178 TERMINATED: 12/09/2015

Joy Tolulope Anakhu (See above for address) TERMINATED: 05/30/2017 ATTORNEY TO BE NOTICED
represented by Amy Robinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brachah Goykadosh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Joseph Lucas (See above for address) TERMINATED: 05/23/2018
Joy Tolulope Anakhu (See above for address) TERMINATED: 05/30/2017 ATTORNEY TO BE NOTICED
represented by Amy Robinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brachah Goykadosh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Joseph Lucas (See above for address) TERMINATED: 05/23/2018
Joy Tolulope Anakhu (See above for address) TERMINATED: 05/30/2017 ATTORNEY TO BE NOTICED
represented by Amy Robinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brachah Goykadosh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Joseph Lucas (See above for address) TERMINATED: 05/23/2018
Joy Tolulope Anakhu (See above for address)

Defendant NYC PD Officer Sgt. Chris Defeo Sh. No. 19936 TERMINATED: 12/09/2015
Defendant NYC PD Officer Sgt. Joseph Diaz Sh. No. 4744 TERMINATED: 12/09/2015
Defendant NYC PD Officer Sgt. Thanya Duhaney Shield No. 5584 TERMINATED: 12/09/2015

TERMINATED: 05/30/2017 ATTORNEY TO BE NOTICED
represented by Amy Robinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brachah Goykadosh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Joseph Lucas (See above for address) TERMINATED: 05/23/2018
Joy Tolulope Anakhu (See above for address) TERMINATED: 05/30/2017 ATTORNEY TO BE NOTICED
represented by Amy Robinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brachah Goykadosh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Joseph Lucas (See above for address) TERMINATED: 05/23/2018
Joy Tolulope Anakhu (See above for address) TERMINATED: 05/30/2017 ATTORNEY TO BE NOTICED
represented by Amy Robinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brachah Goykadosh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Joseph Lucas (See above for address) TERMINATED: 05/23/2018
Joy Tolulope Anakhu (See above for address) TERMINATED: 05/30/2017 ATTORNEY TO BE NOTICED

Defendant NYC PD Officer Sgt Jeanette Fiuerou Sh. No. 6040 TERMINATED: 12/09/2015
Defendant NYC PD Officer Sgt Deborah Garbutt Sh. No. 29583 TERMINATED: 12/09/2015
Defendant NYC PD Officer Sgt. James Gatto Sh. No. 27905 TERMINATED: 12/09/2015
Defendant

represented by Amy Robinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brachah Goykadosh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Joseph Lucas (See above for address) TERMINATED: 05/23/2018
Joy Tolulope Anakhu (See above for address) TERMINATED: 05/30/2017 ATTORNEY TO BE NOTICED
represented by Amy Robinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brachah Goykadosh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Joseph Lucas (See above for address) TERMINATED: 05/23/2018
Joy Tolulope Anakhu (See above for address) TERMINATED: 05/30/2017 ATTORNEY TO BE NOTICED
represented by Amy Robinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brachah Goykadosh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Joseph Lucas (See above for address) TERMINATED: 05/23/2018
Joy Tolulope Anakhu (See above for address) TERMINATED: 05/30/2017 ATTORNEY TO BE NOTICED
represented by

NYC PD Officer Sgt. Matthew Gresswell SH. NO. 10994 TERMINATED: 12/09/2015
Defendant NYC PD Officer Sgt. Stephen Mazzard Sh. No. 31071 TERMINATED: 12/09/2015
Defendant NYC PD Officer Sgt Michael Roder Sh. No. 25253 TERMINATED: 12/09/2015
Defendant NYC PD Officer Sgt Douglas Sheehan Sh. No. 26759 TERMINATED: 12/09/2015

Amy Robinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brachah Goykadosh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Joseph Lucas (See above for address) TERMINATED: 05/23/2018
Joy Tolulope Anakhu (See above for address) TERMINATED: 05/30/2017 ATTORNEY TO BE NOTICED
represented by Amy Robinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brachah Goykadosh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Joseph Lucas (See above for address) TERMINATED: 05/23/2018
Joy Tolulope Anakhu (See above for address) TERMINATED: 05/30/2017 ATTORNEY TO BE NOTICED
represented by Amy Robinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brachah Goykadosh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Joseph Lucas (See above for address) TERMINATED: 05/23/2018
Joy Tolulope Anakhu (See above for address) TERMINATED: 05/30/2017 ATTORNEY TO BE NOTICED
represented by Amy Robinson (See above for address) LEAD ATTORNEY

Defendant NYC PD Officer Sgt. Dixon Su Sh. NO. 7680 TERMINATED: 12/09/2015
Defendant NYC PD Officer Sgt Peter Volaire Sh. No. 27518 TERMINATED: 12/09/2015
Defendant NYC PD Officer Sgt John Does 1−10 Individually, (whose identities are currently unknown but who are known to be police officers and/or supervisory personnel of the New York City Police Department)

ATTORNEY TO BE NOTICED
Brachah Goykadosh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Joseph Lucas (See above for address) TERMINATED: 05/23/2018
Joy Tolulope Anakhu (See above for address) TERMINATED: 05/30/2017 ATTORNEY TO BE NOTICED
represented by Amy Robinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brachah Goykadosh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Joseph Lucas (See above for address) TERMINATED: 05/23/2018
Joy Tolulope Anakhu (See above for address) TERMINATED: 05/30/2017 ATTORNEY TO BE NOTICED
represented by Amy Robinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brachah Goykadosh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Joseph Lucas (See above for address) TERMINATED: 05/23/2018
Joy Tolulope Anakhu (See above for address) TERMINATED: 05/30/2017 ATTORNEY TO BE NOTICED

TERMINATED: 12/21/2015 Defendant NYC PD Officer Sgt John Does 1−10 In official capacity, (whose identities are currently unknown but who are known to be police officers and/or supervisory personnel of the New York City Police Department) TERMINATED: 12/21/2015 Defendant James McNamara Deputy Chief, in their individual and official capacities
Defendant Peter Loehle Inspector, in their individual and official capacities
Defendant Stephen Latalardo Lieutenant, in their individual and official capacities
Defendant John Doe New York City Police Department, (whose identity is not currently known but who are known to be police officers and/or supervisory personnel of the New

represented by Amy Robinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brachah Goykadosh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Joseph Lucas (See above for address) TERMINATED: 05/23/2018
represented by Amy Robinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brachah Goykadosh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Joseph Lucas (See above for address) TERMINATED: 05/23/2018
represented by Amy Robinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brachah Goykadosh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Joseph Lucas (See above for address) TERMINATED: 05/23/2018
represented by Amy Robinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

York City Police Department); in their individual and official capacities

Date Filed 04/30/2012
04/30/2012 04/30/2012 04/30/2012 05/08/2012 05/08/2012 05/08/2012 05/08/2012 05/08/2012 05/08/2012 05/08/2012 05/08/2012 05/08/2012

# Docket Text
1 COMPLAINT against Yesenia Ayala, Brenda Batcher, Mathew Betting, Cynthia Boyle, Stephen Carolan, Michael Casale, Christopher Clark, Nathan Collins, Francisco Costa, Jesse Cotton, Chris Defeo, Joseph Diaz, Thanya Duhaney, Joseph Esposito, Jeanette Fiuerou, Deborah Garbutt, James Gatto, Matthew Gresswell, John Does 1−10(Individually, (whose identities are currently unknown but who are known to be police officers and/or supervisory personnel of the New York City Police Department)), John Does 1−10(In official capacity, (whose identities are currently unknown but who are known to be police officers and/or supervisory personnel of the New York City Police Department)), Raymond Kelly, Stephen Mazzard, Michael Roder, Douglas Sheehan, Dixon Su, Peter Volaire. (Filing Fee $ 350.00, Receipt Number 465401036730)Document filed by Dayna Rozental, Phoebe Berg, Toshiro Kida, Jonathan Jetter, John Rivera.(rdz) (Entered: 05/02/2012)
SUMMONS ISSUED as to All Defendants. (rdz) (Entered: 05/02/2012)
Magistrate Judge Gabriel W. Gorenstein is so designated. (rdz) (Entered: 05/02/2012)
Case Designated ECF. (rdz) (Entered: 05/02/2012)
2 AFFIDAVIT OF SERVICE. Raymond Kelly served on 4/30/2012, answer due 5/21/2012. Service was accepted by Lesa Moore, NYPD Legal Bureau. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 05/08/2012)
3 AFFIDAVIT OF SERVICE. Joseph Esposito served on 4/30/2012, answer due 5/21/2012. Service was accepted by Lesa Moore, NYPD Legal Bureau. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 05/08/2012)
4 AFFIDAVIT OF SERVICE. Yesenia Ayala served on 5/8/2012, answer due 5/29/2012. Service was accepted by Susan Reminy, SPAA 68th Precinct NYPD. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 05/08/2012)
5 AFFIDAVIT OF SERVICE. Cynthia Boyle served on 5/7/2012, answer due 5/29/2012. Service was accepted by Dixon Su, Manhattan South Task Force Officer, NYPD. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 05/08/2012)
6 AFFIDAVIT OF SERVICE. Stephen Carolan served on 5/7/2012, answer due 5/29/2012. Service was accepted by Dixon Su, Manhattan South Task Force Officer, NYPD. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 05/08/2012)
7 AFFIDAVIT OF SERVICE. Michael Casale served on 5/7/2012, answer due 5/29/2012. Service was accepted by Nathernene Bolden, Midtown South Precinct, NYPD. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 05/08/2012)
8 AFFIDAVIT OF SERVICE. Francisco Costa served on 5/7/2012, answer due 5/29/2012. Service was accepted by Dixon Su, Manhattan South Task Force Officer, NYPD. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 05/08/2012)
9 AFFIDAVIT OF SERVICE. Jesse Cotton served on 5/8/2012, answer due 5/29/2012. Service was accepted by Susan Reminy, SPAA 68th Precinct NYPD. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 05/08/2012)
10 AFFIDAVIT OF SERVICE. Joseph Diaz served on 5/7/2012, answer due 5/29/2012. Service was accepted by Dixon Su, Manhattan South Task Force Officer, NYPD. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark)

05/08/2012 05/08/2012 05/08/2012 05/08/2012 05/08/2012 05/08/2012 05/08/2012 05/08/2012 05/08/2012 05/25/2012
05/30/2012 05/30/2012 06/01/2012 06/01/2012 06/01/2012

(Entered: 05/08/2012)
11 AFFIDAVIT OF SERVICE. Jeanette Fiuerou served on 5/8/2012, answer due 5/29/2012. Service was accepted by Susan Reminy, SPAA 68th Precinct NYPD. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 05/08/2012)
12 AFFIDAVIT OF SERVICE. Deborah Garbutt served on 5/7/2012, answer due 5/29/2012. Service was accepted by Dixon Su, Manhattan South Task Force Officer, NYPD. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 05/08/2012)
13 AFFIDAVIT OF SERVICE. Michael Roder served on 5/8/2012, answer due 5/29/2012. Service was accepted by Susan Reminy, SPAA 68th Precinct NYPD. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 05/08/2012)
14 AFFIDAVIT OF SERVICE. Dixon Su served on 5/7/2012, answer due 5/29/2012. Service was accepted by Dixon Su, Manhattan South Task Force Officer, NYPD. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 05/08/2012)
15 AFFIDAVIT OF SERVICE. Peter Volaire served on 5/7/2012, answer due 5/29/2012. Service was accepted by Dixon Su, Manhattan South Task Force Officer, NYPD. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 05/08/2012)
16 AFFIDAVIT OF SERVICE. Christopher Clark served on 5/7/2012, answer due 5/29/2012. Service was accepted by Christopher Clark, Scooter Task Force, New York City Police Department. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 05/08/2012)
17 AFFIDAVIT OF SERVICE. Nathan Collins served on 5/7/2012, answer due 5/29/2012. Service was accepted by Patricia Herman, 13th Precinct, New York City Police Department. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 05/08/2012)
18 AFFIDAVIT OF SERVICE. James Gatto served on 5/7/2012, answer due 5/29/2012. Service was accepted by Nathernene Bolden, Midtown South Precinct, NYPD. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 05/08/2012)
19 AFFIDAVIT OF SERVICE. Douglas Sheehan served on 5/7/2012, answer due 5/29/2012. Service was accepted by Christopher Clark, Scooter Task Force, New York City Police Department. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 05/08/2012)
20 ENDORSED LETTER addressed to Judge Thomas P. Griesa from Andrew Lucas dated 5/24/2012 re: Defendant respectfully requests an extension of his time to answer or otherwise respond to the complaint from May 29, 2012 until July 30, 2012. ENDORSEMENT: Approved., Raymond Kelly answer due 7/30/2012. (Signed by Judge Thomas P. Griesa on 5/25/2012) (lmb) (Entered: 05/25/2012)
21 NOTICE OF APPEARANCE by Andrew Joseph Lucas on behalf of Raymond Kelly (Lucas, Andrew) (Entered: 05/30/2012)
22 NOTICE OF APPEARANCE by Dara Lynn Weiss on behalf of Raymond Kelly (Weiss, Dara) (Entered: 05/30/2012)
23 AFFIDAVIT OF SERVICE. Service was accepted by Susan Reminy, SPAA 68th Precinct NYPD. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 06/01/2012)
24 SUMMONS RETURNED EXECUTED. Service was accepted by Nathernene Bolden, Midtown South Precinct, NYPD. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 06/01/2012)
25 SUMMONS RETURNED EXECUTED. Service was accepted by Dixon Su, Manhattan South Task Force Officer, NYPD. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 06/01/2012)

06/01/2012 06/01/2012 06/01/2012 06/01/2012 06/01/2012 06/01/2012 06/01/2012 06/01/2012 06/01/2012 06/01/2012 06/01/2012 06/01/2012 06/01/2012 06/01/2012 06/01/2012 06/05/2012
06/05/2012

26 SUMMONS RETURNED EXECUTED. Service was accepted by Susan Reminy, SPAA 68th Precinct NYPD. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 06/01/2012)
27 SUMMONS RETURNED EXECUTED. Service was accepted by Susan Reminy, SPAA 68th Precinct NYPD. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 06/01/2012)
28 SUMMONS RETURNED EXECUTED. Service was accepted by Susan Reminy, SPAA 68th Precinct NYPD. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 06/01/2012)
29 SUMMONS RETURNED EXECUTED. Service was accepted by Dixon Su, Manhattan South Task Force Officer, NYPD. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 06/01/2012)
30 SUMMONS RETURNED EXECUTED. Service was accepted by Dixon Su, Manhattan South Task Force Officer, NYPD. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 06/01/2012)
31 SUMMONS RETURNED EXECUTED. Service was accepted by Dixon Su, Manhattan South Task Force Officer, NYPD. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 06/01/2012)
32 SUMMONS RETURNED EXECUTED. Service was accepted by Dixon Su, Manhattan South Task Force Officer, NYPD. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 06/01/2012)
33 SUMMONS RETURNED EXECUTED. Service was accepted by Dixon Su, Manhattan South Task Force Officer, NYPD. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 06/01/2012)
34 SUMMONS RETURNED EXECUTED. Service was accepted by Dixon Su, Manhattan South Task Force Officer, NYPD. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 06/01/2012)
35 SUMMONS RETURNED EXECUTED. Service was accepted by Christopher Clark, Scooter Task Force, New York City Police Department. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 06/01/2012)
36 SUMMONS RETURNED EXECUTED. Service was accepted by Christopher Clark, Scooter Task Force, New York City Police Department. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 06/01/2012)
37 SUMMONS RETURNED EXECUTED. Service was accepted by Patricia Herman, 13th Precinct, New York City Police Department. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 06/01/2012)
38 SUMMONS RETURNED EXECUTED. Service was accepted by Nathernene Bolden, Midtown South Precinct, NYPD. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 06/01/2012)
39 SUMMONS RETURNED EXECUTED. Service was accepted by Lesa Moore, NYPD Legal Bureau. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 06/01/2012)
40 SUMMONS RETURNED EXECUTED. Service was accepted by Lesa Moore, NYPD Legal Bureau. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 06/01/2012)
41 SUMMONS RETURNED EXECUTED. Mathew Betting served on 6/1/2012, answer due 6/22/2012. Service was accepted by New York City Police Officer Grullon. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 06/05/2012)
42 SUMMONS RETURNED EXECUTED. Matthew Gresswell served on 6/5/2012, answer due 6/26/2012. Service was accepted by New York City Police Officer Frizziola. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 06/05/2012)

06/05/2012 06/15/2012 06/15/2012 06/27/2012 06/27/2012 07/27/2012
07/31/2012
08/02/2012 08/03/2012 12/17/2012 12/31/2012 01/16/2013

43 SUMMONS RETURNED EXECUTED. Service was accepted by Nathernene Bolden, Midtown South Precinct, NYPD. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 06/05/2012)
44 SUMMONS RETURNED EXECUTED. Brenda Batcher served on 6/1/2012, answer due 6/22/2012. Service was accepted by Lan Bang, NYPD employee, 106th Precinct. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 06/15/2012)
45 SUMMONS RETURNED EXECUTED. Thanya Duhaney served on 6/1/2012, answer due 6/22/2012. Service was accepted by Officer Washington, 113th Precinct, NYPD. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 06/15/2012)
46 SUMMONS RETURNED EXECUTED. Chris Defeo served on 6/13/2012, answer due 7/5/2012. Service was accepted by Christina M. Bylon, NYPD Detective, 1 Police Plaza, RM 1310. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 06/27/2012)
47 SUMMONS RETURNED EXECUTED. Stephen Mazzard served on 6/13/2012, answer due 7/5/2012. Service was accepted by Officer Ranieri, NYPD 120th Precinct. Service was made by MAIL. Document filed by Phoebe Berg. (Taylor, Mark) (Entered: 06/27/2012)
48 ANSWER to 1 Complaint,,, with JURY DEMAND. Document filed by Yesenia Ayala, Brenda Batcher, Mathew Betting, Cynthia Boyle, Michael Casale, Christopher Clark, Nathan Collins, Francisco Costa, Jesse Cotton, Chris Defeo, Joseph Diaz, Thanya Duhaney, Joseph Esposito, Deborah Garbutt, James Gatto, Matthew Gresswell, Raymond Kelly, Stephen Mazzard, Michael Roder, Douglas Sheehan, Dixon Su, Peter Volaire.(Lucas, Andrew) (Entered: 07/27/2012)
49 ANSWER to 1 Complaint,,, with JURY DEMAND. Document filed by Yesenia Ayala, Brenda Batcher, Mathew Betting, Cynthia Boyle, Michael Casale, Christopher Clark, Nathan Collins, Francisco Costa, Jesse Cotton, Chris Defeo, Joseph Diaz, Thanya Duhaney, Joseph Esposito, Jeanette Fiuerou, Deborah Garbutt, James Gatto, Matthew Gresswell, Raymond Kelly, Stephen Mazzard, Michael Roder, Douglas Sheehan, Dixon Su, Peter Volaire.(Lucas, Andrew) (Entered: 07/31/2012)
50 NOTICE OF APPEARANCE by Jennifer Rolnick Borchetta on behalf of Phoebe Berg, Jonathan Jetter, Toshiro Kida, John Rivera, Dayna Rozental (Borchetta, Jennifer) (Entered: 08/02/2012)
51 NOTICE OF APPEARANCE by Jonathan C Moore on behalf of Phoebe Berg, Jonathan Jetter, Toshiro Kida, John Rivera, Dayna Rozental (Moore, Jonathan) (Entered: 08/03/2012)
Minute Entry for proceedings held before Judge Thomas P. Griesa: Initial Pretrial Conference held on 12/17/2012. (tro) (Entered: 12/28/2012)
52 NOTICE OF CHANGE OF ADDRESS by David Bruce Rankin on behalf of All Plaintiffs. New Address: Rankin & Taylor, PLLC, 11 Park Place, Suite 914, New York, NY, USA 10007, 212−226−4507. (Rankin, David) (Entered: 12/31/2012)
53 CASE MANAGEMENT PLAN: This Civil Case Management Plan (the "Plan") is submitted by the parties in accordance with Rule 26(f)(3), Fed. R. Civ. P. All parties do not consent to conducting all further proceedings before a Magistrate Judge, including motions and trial. 28 U.S.C. 5636(c). The parties are free to withhold consent without adverse substantive consequences. This case is to be tried to a jury. Amended pleadings may not be filed and additional parties may not be joined except with leave of the Court. Any motion to amend or to join additional parties shall be filed by February 25, 2013. All fact discovery shall be completed no later than September 17, 2013. The parties are to conduct discovery in accordance with the Federal Rules of Civil Procedure and the Local Rules of the Southern District of New York. The following interim deadlines may be extended by the written consent of all parties without application to the Court, provided that all fact discovery is completed by the date set forth in paragraph 5 above: Initial requests for production of documents to be served by February 8, 2013; Interrogatories to be served by February 8, 2013; Non−expert depositions to be completed by the close of fact discovery; and Requests

02/28/2013 03/06/2013 03/06/2013
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to Admit to be served no later than August 16, 2013. All Expert discovery shall be completed no later than November 1, 2013. All motions and applications shall be governed by the Court's Individual Practices, including promotion conference requirements, except that motions in limine may be made without a promotion conference. Pursuant to the authority of Rule 16(c)(2), Fed. R. Civ. P., any motion for summary judgment will be deemed untimely unless a request for a premotion conference relating thereto is made in writing within 14 days of the date in paragraph 5 and the close of fact discovery or by October 1,2013. Counsel for the parties have conferred and their present best estimate of the length of trial is three weeks. Amended Pleadings due by 2/25/2013. Motions due by 10/1/2013. Deposition due by 8/16/2013. Fact Discovery due by 9/17/2013. Expert Discovery due by 11/1/2013. (Signed by Judge Thomas P. Griesa on 1/16/2013) (ago) (Entered: 01/16/2013)
54 ENDORSED LETTER addressed to Judge Thomas P. Griesa from David B. Rankin dated 2/25/2013 re: Plaintiffs write to seek a three week extension of our time to amend our complaint. The time in our case management plan set this deadline for today, February 25,2013. An extension would set the new date for amending our complaint at March 18, 2013. Defendants consent to this request. ENDORSEMENT: Approved., ( Amended Pleadings due by 3/18/2013.) (Signed by Judge Thomas P. Griesa on 2/28/2013) (ama) (Entered: 02/28/2013)
55 FIRST MOTION to Dismiss. Document filed by Yesenia Ayala, Brenda Batcher, Mathew Betting, Cynthia Boyle, Stephen Carolan, Michael Casale, Christopher Clark, Nathan Collins, Francisco Costa, Jesse Cotton, Chris Defeo, Joseph Diaz, Thanya Duhaney, Joseph Esposito, Jeanette Fiuerou, Deborah Garbutt, James Gatto, Matthew Gresswell, Raymond Kelly, Stephen Mazzard, Michael Roder, Douglas Sheehan, Dixon Su, Peter Volaire.(Lucas, Andrew) (Entered: 03/06/2013)
56 DECLARATION of Andrew Lucas in Support re: 55 FIRST MOTION to Dismiss.. Document filed by Yesenia Ayala, Brenda Batcher, Mathew Betting, Cynthia Boyle, Stephen Carolan, Michael Casale, Christopher Clark, Nathan Collins, Francisco Costa, Jesse Cotton, Chris Defeo, Joseph Diaz, Thanya Duhaney, Joseph Esposito, Jeanette Fiuerou, Deborah Garbutt, James Gatto, Matthew Gresswell, John Does 1−10(Individually, (whose identities are currently unknown but who are known to be police officers and/or supervisory personnel of the New York City Police Department)), John Does 1−10(In official capacity, (whose identities are currently unknown but who are known to be police officers and/or supervisory personnel of the New York City Police Department)), Raymond Kelly, Stephen Mazzard, Michael Roder, Douglas Sheehan, Dixon Su, Peter Volaire. (Attachments: # 1 Exhibit A − Summons and Complaint, # 2 Exhibit B − Statements via Twitter)(Lucas, Andrew) (Entered: 03/06/2013)
57 FIRST MEMORANDUM OF LAW in Support re: 55 FIRST MOTION to Dismiss.. Document filed by Yesenia Ayala, Brenda Batcher, Mathew Betting, Cynthia Boyle, Stephen Carolan, Michael Casale, Christopher Clark, Nathan Collins, Francisco Costa, Jesse Cotton, Chris Defeo, Joseph Diaz, Thanya Duhaney, Joseph Esposito, Jeanette Fiuerou, Deborah Garbutt, James Gatto, Matthew Gresswell, Raymond Kelly, Stephen Mazzard, Michael Roder, Douglas Sheehan, Dixon Su, Peter Volaire. (Lucas, Andrew) (Entered: 03/06/2013)
58 FILING ERROR − DEFICIENT DOCKET ENTRY − REPLY MEMORANDUM OF LAW in Opposition re: 55 FIRST MOTION to Dismiss.. Document filed by Phoebe Berg, Jonathan Jetter, Toshiro Kida, John Rivera, Dayna Rozental. (Rankin, David) Modified on 4/18/2013 (ldi). (Entered: 04/17/2013)
59 FILING ERROR − DEFICIENT DOCKET ENTRY − MEMORANDUM OF LAW in Opposition re: 55 FIRST MOTION to Dismiss.. Document filed by Phoebe Berg, Jonathan Jetter, Toshiro Kida, Dayna Rozental. (Rankin, David) Modified on 4/18/2013 (ldi). (Entered: 04/17/2013)
60 MEMORANDUM OF LAW in Opposition re: 55 FIRST MOTION to Dismiss.. Document filed by Phoebe Berg, Jonathan Jetter, Toshiro Kida, John Rivera, Dayna Rozental. (Rankin, David) (Entered: 04/18/2013)
61 REPLY MEMORANDUM OF LAW in Support re: 55 FIRST MOTION to Dismiss.. Document filed by Yesenia Ayala, Brenda Batcher, Mathew Betting, Cynthia Boyle, Stephen Carolan, Michael Casale, Christopher Clark, Nathan Collins, Francisco Costa,

11/21/2013
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10/08/2014

Jesse Cotton, Chris Defeo, Joseph Diaz, Thanya Duhaney, Joseph Esposito, Jeanette Fiuerou, Deborah Garbutt, James Gatto, Matthew Gresswell, Raymond Kelly, Stephen Mazzard, Michael Roder, Douglas Sheehan, Dixon Su, Peter Volaire. (Lucas, Andrew) (Entered: 04/25/2013)
62 OPINION re: #103777 55 FIRST MOTION to Dismiss. filed by Peter Volaire, Joseph Diaz, Douglas Sheehan, Nathan Collins, Michael Casale, Thanya Duhaney, Chris Defeo, Raymond Kelly, Matthew Gresswell, Brenda Batcher, Francisco Costa, Mathew Betting, Michael Roder, Stephen Mazzard, Christopher Clark, Cynthia Boyle, James Gatto, Jesse Cotton, Dixon Su, Joseph Esposito, Jeanette Fiuerou, Deborah Garbutt, Stephen Carolan, Yesenia Ayala. The motion to dismiss is denied. (Signed by Judge Thomas P. Griesa on 11/21/2013) (djc) Modified on 11/22/2013 (djc). Modified on 11/25/2013 (djc). Modified on 11/26/2013 (ca). (Entered: 11/22/2013)
63 MOTION for Jenn Rolnick Borchetta to Withdraw as Attorney. Document filed by Phoebe Berg, Jonathan Jetter, Toshiro Kida, John Rivera, Dayna Rozental.(Borchetta, Jennifer) (Entered: 12/18/2013)
64 ORDER granting 63 Motion to Withdraw as Attorney.. On motion of Jenn Rolnick Borchetta to withdraw her appearance as counsel for the plaintiffs in the above referenced action IT IS ORDERED that the motion is GRANTED. Attorney Jennifer Rolnick Borchetta terminated(Signed by Judge Thomas P. Griesa on 12/19/2013) (ama) (Entered: 12/20/2013)
65 NOTICE OF APPEARANCE by Joshua Samuel Moskovitz on behalf of Phoebe Berg, Jonathan Jetter, Toshiro Kida, John Rivera, Dayna Rozental. (Moskovitz, Joshua) (Entered: 01/23/2014)
66 LETTER MOTION for Local Rule 37.2 Conference addressed to Judge Thomas P. Griesa from Joshua S. Moskovitz dated February 13, 2014. Document filed by Phoebe Berg, Jonathan Jetter, Toshiro Kida, John Rivera, Dayna Rozental. (Attachments: # 1 Exhibit 1)(Moskovitz, Joshua) (Entered: 02/13/2014)
67 LETTER RESPONSE in Opposition to Motion addressed to Judge Thomas P. Griesa from Andrew Lucas dated 02/19/2014 re: 66 LETTER MOTION for Local Rule 37.2 Conference addressed to Judge Thomas P. Griesa from Joshua S. Moskovitz dated February 13, 2014.. Document filed by Yesenia Ayala, Brenda Batcher, Mathew Betting, Cynthia Boyle, Stephen Carolan, Michael Casale, Christopher Clark, Nathan Collins, Francisco Costa, Jesse Cotton, Chris Defeo, Joseph Diaz, Thanya Duhaney, Joseph Esposito, Jeanette Fiuerou, Deborah Garbutt, James Gatto, Matthew Gresswell, Raymond Kelly, Stephen Mazzard, Michael Roder, Douglas Sheehan, Dixon Su, Peter Volaire. (Lucas, Andrew) (Entered: 02/19/2014)
Minute Entry for proceedings held before Judge Thomas P. Griesa: Plaintiff by David Rankin and Josh Moskovitz, defendant by Andrew Lucas & Dara Weiss.Scheduling Conference held on 3/12/2014. (Beale, Jon) (Entered: 03/14/2014)
68 NOTICE OF APPEARANCE by Joy Tolulope Anakhu on behalf of Yesenia Ayala, Brenda Batcher, Mathew Betting, Cynthia Boyle, Stephen Carolan, Michael Casale, Christopher Clark, Nathan Collins, Francisco Costa, Jesse Cotton, Chris Defeo, Joseph Diaz, Thanya Duhaney, Joseph Esposito, Jeanette Fiuerou, Deborah Garbutt, James Gatto, Matthew Gresswell, Raymond Kelly, Stephen Mazzard, Michael Roder, Douglas Sheehan, Dixon Su, Peter Volaire. (Anakhu, Joy) (Entered: 07/02/2014)
69 JOINT LETTER MOTION for Extension of Time to Complete Discovery addressed to Judge Thomas P. Griesa from Joy T. Anakhu dated September 3, 2014. Document filed by Yesenia Ayala, Brenda Batcher, Mathew Betting, Cynthia Boyle, Stephen Carolan, Michael Casale, Christopher Clark, Nathan Collins, Francisco Costa, Jesse Cotton, Chris Defeo, Joseph Diaz, Thanya Duhaney, Joseph Esposito, Jeanette Fiuerou, Deborah Garbutt, James Gatto, Matthew Gresswell, Raymond Kelly, Stephen Mazzard, Michael Roder, Douglas Sheehan, Dixon Su, Peter Volaire.(Anakhu, Joy) (Entered: 09/03/2014)
70 MEMO ENDORSED ORDER granting 69 Letter Motion for Extension of Time to Complete Discovery. ENDORSEMENT: Approved. Deposition due by 12/3/2014. Motions due by 12/17/2014. (Signed by Judge Thomas P. Griesa on 10/8/2014) (ajs) (Entered: 10/08/2014)

12/17/2014
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71 LETTER MOTION for Extension of Time to Complete Discovery and for Defendants to file their SJM addressed to Judge Thomas P. Griesa from Joy T. Anakhu dated December 17, 2014. Document filed by Yesenia Ayala, Brenda Batcher, Mathew Betting, Cynthia Boyle, Stephen Carolan, Michael Casale, Christopher Clark, Nathan Collins, Francisco Costa, Jesse Cotton, Chris Defeo, Joseph Diaz, Thanya Duhaney, Joseph Esposito, Jeanette Fiuerou, Deborah Garbutt, James Gatto, Matthew Gresswell, Raymond Kelly, Stephen Mazzard, Michael Roder, Douglas Sheehan, Dixon Su, Peter Volaire. (Attachments: # 1 Exhibit A)(Anakhu, Joy) (Entered: 12/17/2014)
72 ORDER granting 71 Letter Motion for Extension of Time to Complete Discovery and for Defendants to file their SJM. Approved. (Signed by Judge Thomas P. Griesa on 12/17/2014) (ajs) (Entered: 12/17/2014)
73 JOINT LETTER MOTION for Extension of Time to Complete Discovery by May 15, 2015, addressed to Judge Thomas P. Griesa from Andrew Lucas dated 3/17/15. Document filed by Yesenia Ayala, Brenda Batcher, Mathew Betting, Cynthia Boyle, Stephen Carolan, Michael Casale, Christopher Clark, Nathan Collins, Francisco Costa, Jesse Cotton, Chris Defeo, Joseph Diaz, Thanya Duhaney, Joseph Esposito, Jeanette Fiuerou, Deborah Garbutt, James Gatto, Matthew Gresswell, Raymond Kelly, Stephen Mazzard, Michael Roder, Douglas Sheehan, Dixon Su, Peter Volaire.(Lucas, Andrew) (Entered: 03/17/2015)
74 ORDER granting 73 Letter Motion for Extension of Time to Complete Discovery.The parties request a two month extension in discovery to May 15, 2015, and until June 19, 2015, to file any Summary Judgment motions. Approved. Discovery due by 5/15/2015. Motions due by 6/19/2015. (Signed by Judge Thomas P. Griesa on 3/23/2015) (ama) (Entered: 03/24/2015)
75 JOINT LETTER MOTION for Extension of Time to Complete Discovery by July 17, 2015 addressed to Judge Thomas P. Griesa from Andrew Lucas dated 5/12/15. Document filed by Yesenia Ayala, Brenda Batcher, Mathew Betting, Cynthia Boyle, Stephen Carolan, Michael Casale, Christopher Clark, Nathan Collins, Francisco Costa, Jesse Cotton, Chris Defeo, Joseph Diaz, Thanya Duhaney, Joseph Esposito, Jeanette Fiuerou, Deborah Garbutt, James Gatto, Matthew Gresswell, Raymond Kelly, Stephen Mazzard, Michael Roder, Douglas Sheehan, Dixon Su, Peter Volaire.(Lucas, Andrew) (Entered: 05/12/2015)
76 ORDER granting 75 Letter Motion for Extension of Time to Complete Discovery. Approved. (Discovery due by 8/17/2015) (Signed by Judge Thomas P. Griesa on 5/14/2015) (kl) (Entered: 05/14/2015)
77 JOINT LETTER MOTION for Extension of Time to Complete Discovery addressed to Judge Thomas P. Griesa from Andrew Lucas dated 7/13/15. Document filed by Yesenia Ayala, Brenda Batcher, Mathew Betting, Cynthia Boyle, Stephen Carolan, Michael Casale, Christopher Clark, Nathan Collins, Francisco Costa, Jesse Cotton, Chris Defeo, Joseph Diaz, Thanya Duhaney, Joseph Esposito, Jeanette Fiuerou, Deborah Garbutt, James Gatto, Matthew Gresswell, Raymond Kelly, Stephen Mazzard, Michael Roder, Douglas Sheehan, Dixon Su, Peter Volaire.(Lucas, Andrew) (Entered: 07/13/2015)
78 ORDER granting 77 Letter Motion for Extension of Time to Complete Discovery. So ordered. (Signed by Judge Thomas P. Griesa on 7/13/2015) (kl) (Entered: 07/13/2015)
Set/Reset Deadlines: Fact Discovery due by 9/15/2015. Motions due by 10/15/2015. Responses due by 11/6/2015. Replies due by 11/13/2015. (kl) (Entered: 07/13/2015)
79 LETTER MOTION for Local Rule 37.2 Conference − for an in camera inspection addressed to Judge Thomas P. Griesa from David B. Rankin dated August 31, 2015. Document filed by Phoebe Berg, Jonathan Jetter, Toshiro Kida, John Rivera, Dayna Rozental.(Rankin, David) (Entered: 08/31/2015)
80 LETTER RESPONSE in Opposition to Motion addressed to Judge Thomas P. Griesa from Andrew Lucas dated September 3, 2015 re: 79 LETTER MOTION for Local Rule 37.2 Conference − for an in camera inspection addressed to Judge Thomas P. Griesa from David B. Rankin dated August 31, 2015. & Cross−Motion. Document filed by Yesenia Ayala, Brenda Batcher, Mathew Betting, Cynthia Boyle, Stephen Carolan, Michael Casale, Christopher Clark, Nathan Collins, Francisco Costa, Jesse Cotton, Chris Defeo, Joseph Diaz, Thanya Duhaney, Joseph Esposito, Jeanette

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Fiuerou, Deborah Garbutt, James Gatto, Matthew Gresswell, Raymond Kelly, Stephen Mazzard, Michael Roder, Douglas Sheehan, Dixon Su, Peter Volaire. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Anakhu, Joy) (Entered: 09/03/2015)
Set/Reset Scheduling Order Deadlines: Pre−Motion Conference set for 9/28/2015 at 03:30 PM in Courtroom 26B, 500 Pearl Street, New York, NY 10007 before Judge Thomas P. Griesa. (Zaepfel, Kenneth) (Entered: 09/04/2015)
Minute Entry for proceedings held before Judge Thomas P. Griesa: Status Conference held on 9/28/2015. Attorney David Bruce Rankin, representing all plaintiffs. Attorney Andrew Lucas, representing all defendants. The Court directs counsel to complete the remaining additional depositions, on notice. (This resolves doc. No. 79.) The Court further establishes a briefing schedule, as follows: all defendants are to file a summary judgment motion not later than November 13, 2015; all plaintiffs are to file opposition briefs not later than December 15, 2015, and all defendants are to file reply briefs not later than January 15, 2016. (No transcript taken.) (Zaepfel, Kenneth) (Entered: 09/28/2015)
81 JOINT LETTER MOTION for Extension of Time to File Motion for Summary Judgment addressed to Judge Thomas P. Griesa from Andrew Lucas dated 11/10/15. Document filed by Yesenia Ayala, Brenda Batcher, Mathew Betting, Cynthia Boyle, Stephen Carolan, Michael Casale, Christopher Clark, Nathan Collins, Francisco Costa, Jesse Cotton, Chris Defeo, Joseph Diaz, Thanya Duhaney, Joseph Esposito, Jeanette Fiuerou, Deborah Garbutt, James Gatto, Matthew Gresswell, Raymond Kelly, Stephen Mazzard, Michael Roder, Douglas Sheehan, Dixon Su, Peter Volaire.(Lucas, Andrew) (Entered: 11/10/2015)
82 ORDER granting 81 Letter Motion for Extension of Time to File. APPROVED. SO ORDERED. (Signed by Judge Thomas P. Griesa on 11/10/2015) (kl) (Entered: 11/12/2015)
Set/Reset Deadlines: Motions due by 12/11/2015. Responses due by 1/8/2016. Replies due by 1/29/2016. (kl) (Entered: 11/12/2015)
83 FIRST LETTER MOTION for Leave to File Amended Complaint addressed to Judge Thomas P. Griesa from David B. Rankin dated December 9, 2015., JOINT LETTER MOTION for Extension of Time to File addressed to Judge Thomas P. Griesa from David B. Rankin dated December 9, 2015. Document filed by Yesenia Ayala, Brenda Batcher, Phoebe Berg, Mathew Betting, Cynthia Boyle, Stephen Carolan, Michael Casale, Christopher Clark, Nathan Collins, Francisco Costa, Jesse Cotton, Chris Defeo, Joseph Diaz, Thanya Duhaney, Joseph Esposito, Jeanette Fiuerou, Deborah Garbutt, James Gatto, Matthew Gresswell, Jonathan Jetter, John Does 1−10(Individually, (whose identities are currently unknown but who are known to be police officers and/or supervisory personnel of the New York City Police Department)), John Does 1−10(In official capacity, (whose identities are currently unknown but who are known to be police officers and/or supervisory personnel of the New York City Police Department)), Raymond Kelly, Toshiro Kida, Stephen Mazzard, John Rivera, Michael Roder, Dayna Rozental, Douglas Sheehan, Dixon Su. (Attachments: # 1 Proposed Amnd Complaint, # 2 Stipulation, # 3 Text of Proposed Order)(Rankin, David) (Entered: 12/09/2015)
84 ORDER granting 83 Letter Motion for Leave to File Document; granting 83 Letter Motion for Extension of Time to File. 1. Plaintiff may file the amended complaint as a separate filing, on notice. 2. Defendants' Fed R. Civ. P. 56 Summary Judgment motion be filed four weeks after the amended complaint is filed, plaintiffs' opposition be filed four weeks later; and defendants' reply be filed two weeks after that. This second request for this relief is joined by the defendants. (Signed by Judge Thomas P. Griesa on 12/9/2015) (mro) (Entered: 12/10/2015)
85 STIPULATION AND ORDER OF PARTIAL DISMISSAL WITH PREJUDICE AND REGARDING PLAINTIFFS' PROPOSED AMENDMENT: The parties to this action hereby Stipulate and Agree, and request that the Court "So Order," the following: Plaintiff seeks to file an amended complaint in this action. Defendants do not oppose this application. The parties stipulate and agree to the voluntary dismissal by plaintiff, with prejudice, of any and all claims against defendants OFFICERS/SERGEANTS YESENIA AYALA, Sh. No. 13587; BRENDA BATCHER, Sh. No. 18825; MATHEW BETTING, Sh. No. 12343; CYNTHIA BOYLE, Sh. No. 6663; STEPHEN

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CAROLAN, Sh. No. 6693; MICHAEL CASALE, Sh. No. 30092; CHRISTOPHER CLARK, Sh. No. 30815; NATHAN COLLINS, Sh. No. 11773; FRANCISCO COSTA, Sh. No. 20660; JESSE COTTON, Sh. No. 1178; CHRIS DEFEO, Sh. No. 19936; JOSEPH DIAZ, Sh. No. 4744; THANYA DUHANEY, Shield No. 5584; JEANETTE FIUEROU, Sh. No. 6040; DEBORAH GARBUTT, Sh. No. 29583; JAMES GATTO, Sh. No. 27905; MATTHEW GRESSWELL, Sh. No. 10994; STEPHEN MAZZARD, Sh. No. 31071; MICHAEL RODER, Sh. No. 25253; DOUGLAS SHEEHAN, Sh. No. 26759; DIXON SU, Sh. No. 7680; and PETER VOLAIRE, Sh. No. 27518. The parties stipulate and agree to the removal of the following names from the caption of this case: OFFICERS/SERGEANTS YESENIA AYALA, Sh. No. 13587; BRENDA BATCHER, Sh. No. 18825; MATHEW BETTING, Sh. No. 12343; CYNTHIA BOYLE, Sh. No. 6663; STEPHEN CAROLAN, Sh. No. 6693; MICHAEL CASALE, Sh. No. 30092; CHRISTOPHER CLARK, Sh. No. 30815; NATHAN COLLINS, Sh. No. 11773; FRANCISCO COSTA, Sh. No. 20660; JESSE COTTON, Sh. No. 1178; CHRIS DEFEO, Sh. No. 19936; JOSEPH DIAZ, Sh. No. 4744; THANYA DUHANEY, Shield No. 5584; JEANETTE FIUEROU, Sh. No. 6040; DEBORAH GARBUTT, Sh. No. 29583; JAMES GATTO, Sh. No. 27905; MATTHEW GRES SWELL, Sh. No. 10994; STEPHEN MAZZARD, Sh. No. 31071; MICHAEL RODER, Sh. No. 25253; DOUGLAS SHEEHAN, Sh. No. 26759; DIXON SU, Sh. No. 7680; and PETER VOLAIRE, Sh. No. 27518. Plaintiffs seek to add the following defendants in the proposed amended complaint: DEPUTY CHIEF JAMES MCNAMARA, INSPECTOR PETER LOEHLE, and LIEU TEN ANT STEPHEN LAT ALARDO. Defendants do not oppose this application. (Signed by Judge Thomas P. Griesa on 12/9/2015) (mro) (Entered: 12/10/2015)
86 AMENDED COMPLAINT amending 1 Complaint,,, against Joseph Esposito, Raymond Kelly, James McNamara, Peter Loehle, Stephen Latalardo, John Doe with JURY DEMAND.Document filed by Dayna Rozental, Phoebe Berg, Toshiro Kida, Jonathan Jetter, John Rivera. Related document: 1 Complaint,,, filed by John Rivera, Toshiro Kida, Dayna Rozental, Phoebe Berg, Jonathan Jetter. (Attachments: # 1 Exhibit Stipulation and Order)(Rankin, David) (Entered: 12/18/2015)
87 REQUEST FOR ISSUANCE OF SUMMONS as to Deputy Chief James McNamara, re: 86 Amended Complaint,. Document filed by Phoebe Berg, Jonathan Jetter, Toshiro Kida, John Rivera, Dayna Rozental. (Rankin, David) (Entered: 12/18/2015)
88 REQUEST FOR ISSUANCE OF SUMMONS as to Inspector Peter Loehle, re: 86 Amended Complaint,. Document filed by Phoebe Berg, Jonathan Jetter, Toshiro Kida, John Rivera, Dayna Rozental. (Rankin, David) (Entered: 12/18/2015)
89 REQUEST FOR ISSUANCE OF SUMMONS as to Lieutenant Stephen Latalardo, re: 86 Amended Complaint,. Document filed by Phoebe Berg, Jonathan Jetter, Toshiro Kida, John Rivera, Dayna Rozental. (Rankin, David) (Entered: 12/18/2015)
90 ELECTRONIC SUMMONS ISSUED as to James McNamara. (moh) (Entered: 12/21/2015)
91 ELECTRONIC SUMMONS ISSUED as to Peter Loehle. (moh) (Entered: 12/21/2015)
92 ELECTRONIC SUMMONS ISSUED as to Stephen Latalardo. (moh) (Entered: 12/21/2015)
93 SUMMONS RETURNED EXECUTED. James McNamara served on 12/23/2015, answer due 1/13/2016. Service was accepted by FNUK RAZA. Service was made by Mail. Document filed by Dayna Rozental; Phoebe Berg; Toshiro Kida; Jonathan Jetter; John Rivera. (Rankin, David) (Entered: 12/23/2015)
94 SUMMONS RETURNED EXECUTED. Peter Loehle served on 12/23/2015, answer due 1/13/2016. Service was accepted by FNUK ACUNA. Service was made by Mail. Document filed by Dayna Rozental; Phoebe Berg; Toshiro Kida; Jonathan Jetter; John Rivera. (Rankin, David) (Entered: 12/23/2015)
95 SUMMONS RETURNED EXECUTED. Stephen Latalardo served on 12/23/2015, answer due 1/13/2016. Service was made by MAIL. Document filed by Dayna Rozental; Phoebe Berg; Toshiro Kida; Jonathan Jetter; John Rivera. (Rankin, David) (Entered: 12/30/2015)

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96 ANSWER to 86 Amended Complaint, with JURY DEMAND. Document filed by Joseph Esposito, Raymond Kelly, Stephen Latalardo, Peter Loehle, James McNamara.(Lucas, Andrew) (Entered: 01/15/2016)
97 CONSENT LETTER MOTION for Extension of Time until January 21, 2016, to file R. 56 motion addressed to Judge Thomas P. Griesa from Andrew Lucas dated 1/19/2016. Document filed by Joseph Esposito, Raymond Kelly, Stephen Latalardo, Peter Loehle, James McNamara.(Lucas, Andrew) (Entered: 01/19/2016)
98 ORDER granting 97 Letter Motion for Extension of Time. APPROVED. SO ORDERED. Motions due by 1/21/2016. (Signed by Judge Thomas P. Griesa on 1/20/2016) (kl) (Entered: 01/20/2016)
99 MOTION for Summary Judgment . Document filed by Joseph Esposito, Raymond Kelly, Stephen Latalardo, Peter Loehle, James McNamara.(Lucas, Andrew) (Entered: 01/21/2016)
100 DECLARATION of Andrew Lucas in Support re: 99 MOTION for Summary Judgment .. Document filed by Joseph Esposito, Raymond Kelly, Stephen Latalardo, Peter Loehle, James McNamara. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R)(Lucas, Andrew) (Entered: 01/21/2016)
101 MEMORANDUM OF LAW in Support re: 99 MOTION for Summary Judgment . . Document filed by Joseph Esposito, Raymond Kelly, Stephen Latalardo, Peter Loehle, James McNamara. (Lucas, Andrew) (Entered: 01/21/2016)
102 RULE 56.1 STATEMENT. Document filed by Joseph Esposito, Raymond Kelly, Stephen Latalardo, Peter Loehle, James McNamara. (Lucas, Andrew) (Entered: 01/21/2016)
103 CONSENT LETTER MOTION for Extension of Time to File Summary Judgment Opposition addressed to Judge Thomas P. Griesa from David B. Rankin dated February 18, 2016. Document filed by Phoebe Berg, Jonathan Jetter, Toshiro Kida, John Rivera, Dayna Rozental.(Rankin, David) (Entered: 02/18/2016)
104 ORDER granting 103 Letter Motion for Extension of Time to File Summary Judgment Opposition. Approved. (Signed by Judge Thomas P. Griesa on 2/19/2016) (cf) (Entered: 02/19/2016)
Set/Reset Deadlines: Responses due by 3/7/2016 (cf) (Entered: 02/19/2016)
105 PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material...(As further set forth in this Order) (Signed by Judge Thomas P. Griesa on 2/23/2016) (kl) (Entered: 02/23/2016)
106 SECOND LETTER MOTION for Extension of Time to File Response/Reply addressed to Judge Thomas P. Griesa from David B. Rankin dated March 4, 2016. Document filed by Phoebe Berg, Jonathan Jetter, Toshiro Kida, John Rivera, Dayna Rozental.(Rankin, David) (Entered: 03/04/2016)
107 ORDER granting 106 Letter Motion for Extension of Time to File Response/Reply. Approved. Responses due by 3/11/2016. (Signed by Judge Thomas P. Griesa on 3/4/2016) (kl) (Entered: 03/04/2016)
108 MEMORANDUM OF LAW in Opposition re: 99 MOTION for Summary Judgment . . Document filed by Phoebe Berg, Jonathan Jetter, Toshiro Kida, John Rivera, Dayna Rozental. (Rankin, David) (Entered: 03/11/2016)
109 COUNTER STATEMENT TO 102 Rule 56.1 Statement. Document filed by Phoebe Berg, Jonathan Jetter, Toshiro Kida, John Rivera, Dayna Rozental. (Rankin, David) (Entered: 03/11/2016)
110 DECLARATION of David B. Rankin in Opposition re: 99 MOTION for Summary Judgment .. Document filed by Phoebe Berg, Jonathan Jetter, Toshiro Kida, John Rivera, Dayna Rozental. (Attachments: # 1 Exhibit 1 − Dep of Rivera, # 2 Exhibit 2 − Dep of Jetter, # 3 Exhibit 3 − Dep of Rozenthal, # 4 Exhibit 4 − Dep of Kida, # 5

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Exhibit 5 − Dep of Berg, # 6 Exhibit 6 − Dep of Hart, # 7 Exhibit 7 − Map, # 8 Exhibit 8 − to be filed under seal, # 9 Exhibit 9 − Dep of Purtell, # 10 Exhibit 10 − Dep of Latalardo, # 11 Exhibit 11 − Dep. of Loehle, # 12 Exhibit 12 − Video, # 13 Exhibit 13 − Video, # 14 Exhibit 14 − Video, # 15 Exhibit 15 − Video, # 16 Exhibit 16 − Patrol Guide)(Rankin, David) (Entered: 03/11/2016)
111 CONSENT LETTER MOTION for Leave to File Exhibit 8 under seal attached to the declaration of David B. Rankin addressed to Judge Thomas P. Griesa from David B. Rankin dated March 18, 2016. Document filed by Phoebe Berg, Jonathan Jetter, Toshiro Kida, John Rivera, Dayna Rozental.(Rankin, David) (Entered: 03/18/2016)
112 ORDER granting 111 Letter Motion for Leave to File Document. APPROVED. SO ORDERED. (Signed by Judge Thomas P. Griesa on 3/21/2016) (kl) (Entered: 03/21/2016)
Transmission to Sealed Records Clerk. Transmitted re: 112 Order on Motion for Leave to File Document, to the Sealed Records Clerk for the sealing or unsealing of document or case. (kl) (Entered: 03/21/2016)
113 SEALED DOCUMENT placed in vault.(mps) (Entered: 03/24/2016)
114 REPLY MEMORANDUM OF LAW in Support re: 99 MOTION for Summary Judgment . . Document filed by Joseph Esposito, Raymond Kelly, Stephen Latalardo, Peter Loehle, James McNamara. (Lucas, Andrew) (Entered: 03/24/2016)
115 COUNTER STATEMENT TO 102 Rule 56.1 Statement. Document filed by Joseph Esposito, Raymond Kelly, Stephen Latalardo, Peter Loehle, James McNamara. (Lucas, Andrew) (Entered: 03/24/2016)
116 OPINION #106621 re: 99 MOTION for Summary Judgment filed by James McNamara, Raymond Kelly, Stephen Latalardo, Peter Loehle, Joseph Esposito. On a motion for summary judgment, the movant faces a demanding standard if the court is to deprive the nonmovant of a jury determination. Defendants have met their burden on plaintiffs' state constitutional claims, but have failed to do so on plaintiffs' federal constitutional claims, except as to defendants Kelly and Esposito. Accordingly, the motion for summary judgment is granted in part and denied in part. (As further set forth in this Order.) (Signed by Judge Thomas P. Griesa on 8/10/2016) (kko) Modified on 8/11/2016 (ca). (Entered: 08/10/2016)
117 SEALED DOCUMENT placed in vault.(rz) (Entered: 08/10/2016)
118 JOINT LETTER MOTION for Extension of Time under local rule 6 addressed to Judge Thomas P. Griesa from David B. Rankin dated August 19, 2016. Document filed by Phoebe Berg, Jonathan Jetter, Toshiro Kida, John Rivera, Dayna Rozental.(Rankin, David) (Entered: 08/19/2016)
119 ORDER granting 118 Letter Motion for Extension of Time. Approved. SO ORDERED. (Signed by Judge Thomas P. Griesa on 8/22/2016) (kl) (Entered: 08/22/2016)
Set/Reset Deadlines: Motions due by 9/12/2016. Responses due by 9/26/2016 (kl) (Entered: 08/22/2016)
120 NOTICE OF INTERLOCUTORY APPEAL from 116 Memorandum & Opinion,,. Document filed by Joseph Esposito, Raymond Kelly, Stephen Latalardo, Peter Loehle, James McNamara. Form C and Form D are due within 14 days to the Court of Appeals, Second Circuit. (Anakhu, Joy) (Entered: 09/09/2016)
Appeal Fee Due: for 120 Notice of Interlocutory Appeal,. $505.00 Appeal fee due by 9/23/2016. (nd) (Entered: 09/09/2016)
Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 120 Notice of Interlocutory Appeal,. (nd) (Entered: 09/09/2016)
Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal Electronic Files for 120 Notice of Interlocutory Appeal, filed by James McNamara, Raymond Kelly, Stephen Latalardo, Peter Loehle, Joseph Esposito were transmitted to the U.S. Court of Appeals. (nd) (Entered: 09/09/2016)

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121 JOINT LETTER MOTION for Extension of Time to file motions considered in docket entry 119 addressed to Judge Thomas P. Griesa from Andrew Lucas dated 9/12/2016. Document filed by Stephen Latalardo, Peter Loehle, James McNamara.(Lucas, Andrew) (Entered: 09/12/2016)
USCA Appeal Fees received $ 505.00 receipt number 465401161886 on 9/13/2016 re: 120 Notice of Interlocutory Appeal, filed by James McNamara, Raymond Kelly, Stephen Latalardo, Peter Loehle, Joseph Esposito. (tp) (Entered: 09/13/2016)
122 ORDER granting 121 Letter Motion for Extension of Time. Approved. (Signed by Judge Thomas P. Griesa on 9/21/2016) (lmb) (Entered: 09/22/2016)
123 ORDER of USCA (Certified Copy) as to 120 Notice of Interlocutory Appeal, filed by James McNamara, Raymond Kelly, Stephen Latalardo, Peter Loehle, Joseph Esposito. USCA Case Number 16−3146. Appellees move to dismiss this appeal for lack of jurisdiction. Upon due consideration, it is hereby ORDERED that the motion is DENIED. The court has jurisdiction over this appeal to determine whether Appellants are entitled to qualified immunity as a matter of law to the extent that they can support their defense on Appellees' "version of the facts that the district judge deemed available for jury resolution." Lynch v. Ackley, 811 F.3d 569, 576 (2d Cir. 2016) (internal quotation marks omitted). Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Certified: 01/11/2017. (nd) (Entered: 01/11/2017)
124 NOTICE OF APPEARANCE by Brachah Goykadosh on behalf of Yesenia Ayala, Brenda Batcher, Mathew Betting, Cynthia Boyle, Stephen Carolan, Michael Casale, Christopher Clark, Nathan Collins, Francisco Costa, Jesse Cotton, Chris Defeo, Joseph Diaz, Thanya Duhaney, Joseph Esposito, Jeanette Fiuerou, Deborah Garbutt, James Gatto, Matthew Gresswell, Stephen Latalardo, Peter Loehle, Stephen Mazzard, James McNamara, Michael Roder, Douglas Sheehan, Dixon Su, Peter Volaire. (Goykadosh, Brachah) (Entered: 05/03/2017)
125 MOTION for Joy T. Anakhu to Withdraw as Attorney . Document filed by Joseph Esposito, Raymond Kelly.(Anakhu, Joy) (Entered: 05/19/2017)
126 DECLARATION of Joy T. Anakhu in Support re: 125 MOTION for Joy T. Anakhu to Withdraw as Attorney .. Document filed by Joseph Esposito, Raymond Kelly. (Anakhu, Joy) (Entered: 05/19/2017)
127 MEMO ENDORSED ON ORDER granting 125 Motion to Withdraw as Attorney. Attorney Joy Tolulope Anakhu terminated. So Ordered. (Signed by Judge Thomas P. Griesa on 5/30/2017) (js) (Entered: 05/31/2017)
128 NOTICE OF CHANGE OF ADDRESS by David Bruce Rankin on behalf of Phoebe Berg, Jonathan Jetter, Toshiro Kida, John Rivera, Dayna Rozental. New Address: Beldock Levine & Hoffman, 99 Park Avenue, PH/26th Floor, New York, New York, United States 10016, 2124900400. (Rankin, David) (Entered: 06/01/2017)
129 NOTICE OF APPEARANCE by Amy Robinson on behalf of Yesenia Ayala, Brenda Batcher, Mathew Betting, Cynthia Boyle, Stephen Carolan, Michael Casale, Christopher Clark, Nathan Collins, Francisco Costa, Jesse Cotton, Chris Defeo, Joseph Diaz, John Doe, Thanya Duhaney, Joseph Esposito, Jeanette Fiuerou, Deborah Garbutt, James Gatto, Matthew Gresswell, Raymond Kelly, Stephen Latalardo, Peter Loehle, Stephen Mazzard, James McNamara, Michael Roder, Douglas Sheehan, Dixon Su, Peter Volaire. (Robinson, Amy) (Entered: 02/23/2018)
130 MOTION for Andrew Lucas to Withdraw as Attorney . Document filed by Joseph Esposito, Raymond Kelly, Stephen Latalardo, Peter Loehle, James McNamara.(Lucas, Andrew) (Entered: 05/21/2018)
131 DECLARATION of Andrew Lucas in Support re: 130 MOTION for Andrew Lucas to Withdraw as Attorney .. Document filed by Joseph Esposito, Raymond Kelly, Stephen Latalardo, Peter Loehle, James McNamara. (Lucas, Andrew) (Entered: 05/21/2018)
NOTICE OF CASE REASSIGNMENT to Judge Lewis A. Kaplan. Judge Thomas P. Griesa is no longer assigned to the case. (jc) (Entered: 05/22/2018)
132 MEMO ENDORSEMENT on NOTICE OF MOTION TO WITHDRAW AS COUNSEL granting 130 Motion to Withdraw as Attorney. ENDORSEMENT:

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Granted. SO ORDERED. (Attorney Andrew Joseph Lucas terminated.) (Signed by Judge Lewis A. Kaplan on 5/23/2018) (anc) (Entered: 05/23/2018)
133 ORDER REFERRING CASE TO MAGISTRATE JUDGE. Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for General Pretrial (includes scheduling, discovery, non−dispositive pretrial motions, and settlement) and Dispositive Motion (i.e., motion requiring a Report and Recommendation). All such motions. Referred to Magistrate Judge Gabriel W. Gorenstein. (Signed by Judge Lewis A. Kaplan on 6/1/2018) (anc) (Entered: 06/01/2018)
134 OPINION of USCA (Certified) as to 120 Notice of Interlocutory Appeal, filed by James McNamara, Raymond Kelly, Stephen Latalardo, Peter Loehle, Joseph Esposito. USCA Case Number 16−3146.Members of Occupy Wall Street ("OWS protesters" or "protesters") assert that a group of New York City Police Officers (the "Officers") unlawfully detained them during a protest outside the Sheraton Hotel where President Obama was attending a fundraising dinner. The protesters claim that this detention violated their First, Fourth, and Fourteenth Amendment rights. Concluding that the Officers' motivation for the detention was a material fact in dispute and that a finding as to the Officers' motivation affected the determination of the objective reasonableness of the Officers actions, the district court denied the Officers summary judgment on the protesters' First, Fourth, and Fourteenth Amendment claims, and denied the Officers qualified immunity. The Officers appealed. This court denied the protesters' motion to dismiss this appeal for lack of subject matter jurisdiction. The Officers argue before us that the limited detention that occurred was permissible under the special needs exception to the Fourth Amendment so as not to violate the protesters constitutional rights and, in any event, they are entitled to qualified immunity. We identify disputes of fact that do not permit a court to conclude as a matter of law that the protesters' twohour detention was permissible under the special needs exception to the Fourth Amendment's warrant requirement. We nonetheless conclude that the officers are entitled to qualified immunity. The district court erred in concluding that the Officers' subjective intent in temporarily detaining the protesters was relevant to whether the Officers are entitled to qualified immunity. Considered objectively, we conclude that, at the time of the challenged actions, reasonable officers could have believed that the approximately twohour detention of the protesters in response to concerns for the President's security was justified in light of then established law. Because the Officers could have reasonably believed the temporary detention was lawful, they are also entitled to qualified immunity on the OWS protesters' First Amendment and Fourteenth Amendment claims. REVERSED AND REMANDED.. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Certified: 07/25/2018. (nd) (Entered: 07/25/2018)
135 LETTER MOTION to Reopen and set a briefing schedule for a motion to reargue addressed to Magistrate Judge Gabriel W. Gorenstein from David B. Rankin dated July 30, 2018. Document filed by Phoebe Berg, Jonathan Jetter, Toshiro Kida, John Rivera, Dayna Rozental.(Rankin, David) (Entered: 07/30/2018)
136 ORDER granting 135 Letter Motion to Reopen. Granted. Follow paragraph 2.B of my Individual Practices for the remaining schedule. (Signed by Magistrate Judge Gabriel W. Gorenstein on 7/31/2018) (mro) Modified on 7/31/2018 (mro). (Entered: 07/31/2018)
Set/Reset Deadlines: Motions due by 9/10/2018. (mro) (Entered: 07/31/2018)
137 MANDATE of USCA (Certified Copy) as to 120 Notice of Interlocutory Appeal, filed by James McNamara, Raymond Kelly, Stephen Latalardo, Peter Loehle, Joseph Esposito. USCA Case Number 16−3146. IT IS HEREBY ORDERED, ADJUDGED and DECREED that the decision of the district court is REVERSED. The case is REMANDED for further proceedings consistent with this Court's opinion. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Mandate: 08/15/2018. (Attachments: # 1 Opinion, # 2 Errata Sheet)(nd) (Entered: 08/15/2018)
Transmission of USCA Mandate to the District Judge re: 137 USCA Mandate. (nd) (Entered: 08/15/2018)
138 MOTION for Reargument re: 116 Memorandum & Opinion,, . Document filed by Phoebe Berg, Jonathan Jetter, Toshiro Kida, John Rivera, Dayna Rozental.(Rankin, David) (Entered: 09/10/2018)

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139 MEMORANDUM OF LAW in Support re: 138 MOTION for Reargument re: 116 Memorandum & Opinion,, . . Document filed by Phoebe Berg, Jonathan Jetter, Toshiro Kida, John Rivera, Dayna Rozental. (Rankin, David) (Entered: 09/10/2018)
140 DECLARATION of David B. Rankin in Support re: 138 MOTION for Reargument re: 116 Memorandum & Opinion,, .. Document filed by Phoebe Berg, Jonathan Jetter, Toshiro Kida, John Rivera, Dayna Rozental. (Attachments: # 1 Exhibit)(Rankin, David) (Entered: 09/10/2018)
141 MEMORANDUM OF LAW in Opposition re: 138 MOTION for Reargument re: 116 Memorandum & Opinion,, . . Document filed by Joseph Esposito, Raymond Kelly, Stephen Latalardo, Peter Loehle, James McNamara. (Smith, Valerie) (Entered: 10/12/2018)
142 REPLY MEMORANDUM OF LAW in Support re: 138 MOTION for Reargument re: 116 Memorandum & Opinion,, . . Document filed by Phoebe Berg, Jonathan Jetter, Toshiro Kida, John Rivera, Dayna Rozental. (Rankin, David) (Entered: 10/22/2018)
143 ORDER: The Court brings to the parties' attention that one of the undersigned's law clerks, who started her clerkship in August 2018, worked as a paid clerk at the office of plaintiffs' counsel while she was in law school in the Fall of 2017. The law clerk has stated that she worked on the above−captioned case at that time. The Court has made no further inquiry of the law clerk and does not know the nature of her work on the case. While in Chambers, the law clerk has not discussed the case with the undersigned and indeed has had no involvement in the case. She will have no involvement in the future. Staff in my chambers have been instructed not to communicate with the law clerk in any manner about the case. In addition, the law clerk has been instructed not to communicate with anyone in Chambers about the case. The Court believes that it will be completely impartial in this case. If, however, any party wishes to make any application with respect to this matter, the party should do so on or before November 15, 2018. SO ORDERED., ( Motions due by 11/15/2018.) (Signed by Magistrate Judge Gabriel W. Gorenstein on 11/08/2018) (ama) (Entered: 11/08/2018)
144 REPORT AND RECOMMENDATION re: 138 MOTION for Reargument re: 116 Memorandum & Opinion filed by John Rivera, Toshiro Kida, Dayna Rozental, Phoebe Berg, Jonathan Jetter. For the foregoing reasons, plaintiffs' motion for reconsideration (Docket # 138) should be denied. Objections to R&R due by 12/14/2018 (Signed by Magistrate Judge Gabriel W. Gorenstein on 11/30/2018) (mro) (Entered: 11/30/2018)
145 FILING ERROR − WRONG EVENT TYPE SELECTED FROM MENU − LETTER MOTION to Reopen re: 144 Report and Recommendations, objection to the Report and Recommendation addressed to Judge Lewis A. Kaplan from David B. Rankin dated December 14, 2018. Document filed by Phoebe Berg, Jonathan Jetter, Toshiro Kida, John Rivera, Dayna Rozental.(Rankin, David) Modified on 12/17/2018 (db). (Entered: 12/14/2018)
***NOTICE TO ATTORNEY TO RE−FILE DOCUMENT − EVENT TYPE ERROR. Notice to Attorney David Bruce Rankin to RE−FILE Document 145 LETTER MOTION to Reopen re: 144 Report and Recommendations, objection to the Report and Recommendation addressed to Judge Lewis A. Kaplan from David B. Rankin dated December 14, 2018. Use the event type Letter found under the event list Other Documents. (db) (Entered: 12/17/2018)
146 LETTER addressed to Judge Lewis A. Kaplan from David B. Rankin dated December 14, 2018 re: Report and Recomendation. Document filed by Phoebe Berg, Jonathan Jetter, Toshiro Kida, John Rivera, Dayna Rozental.(Rankin, David) (Entered: 12/17/2018)
147 LETTER RESPONSE in Opposition to Motion addressed to Judge Lewis A. Kaplan from Amy Robinson dated December 31, 2018 re: 145 LETTER MOTION to Reopen re: 144 Report and Recommendations, objection to the Report and Recommendation addressed to Judge Lewis A. Kaplan from David B. Rankin dated December 14, 2018. . Document filed by Stephen Latalardo, Peter Loehle, James McNamara. (Robinson, Amy) (Entered: 12/31/2018)

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148 ORDER denying 138 Motion for Reargument. The objections are overruled. Plaintiffs' motion for reconsideration is denied for the simple reason that it fails to show the need to correct a clear error or prevent manifest injustice. SO ORDERED. (Signed by Judge Lewis A. Kaplan on 1/24/2019) (jca) (Entered: 01/24/2019)
149 ORDER: The parties shall file a proposed joint pretrial order in accordance with the individual practices of the Court by May 1, 2019. SO ORDERED. (Pretrial Order due by 5/1/2019.) (Signed by Judge Lewis A. Kaplan on 4/1/2019) (jca) (Entered: 04/01/2019)
150 LETTER addressed to Judge Lewis A. Kaplan from Amy Robinson dated April 9, 2019 re: Requesting the Case be Closed. Document filed by Stephen Latalardo, Peter Loehle, James McNamara.(Robinson, Amy) (Entered: 04/09/2019)
151 LETTER MOTION for Extension of Time to File JPTO and set a briefing schedule for a class certification motion addressed to Judge Lewis A. Kaplan from David B. Rankin dated April 9, 2019. Document filed by Phoebe Berg, Jonathan Jetter, Toshiro Kida, John Rivera, Dayna Rozental.(Rankin, David) (Entered: 04/09/2019)
152 LETTER RESPONSE to Motion addressed to Judge Lewis A. Kaplan from Amy Robinson dated April 10, 2019 re: 151 LETTER MOTION for Extension of Time to File JPTO and set a briefing schedule for a class certification motion addressed to Judge Lewis A. Kaplan from David B. Rankin dated April 9, 2019. . Document filed by Stephen Latalardo, Peter Loehle, James McNamara. (Robinson, Amy) (Entered: 04/10/2019)
153 ORDER denying 151 LETTER MOTION for Extension of Time to File JPTO and set a briefing schedule for a class certification motion. Denied. All issues in this case have been denied and plaintiffs have no further recourse. The Clerk shall enter final judgment closing the case. SO ORDERED. (Signed by Judge Lewis A. Kaplan on 4/22/2019) (jca) Transmission to Orders and Judgments Clerk for processing. (Entered: 04/22/2019)
154 CLERK'S JUDGMENT re: 153 Order on Motion for Extension of Time to File in favor of James McNamara, John Doe, Joseph Esposito, Peter Loehle, Raymond Kelly, Stephen Latalardo against Dayna Rozental, John Rivera, Jonathan Jetter, Phoebe Berg, Toshiro Kida. It is hereby ORDERED, ADJUDGED AND DECREED: That for the reasons stated in the Court's Memo Endorsed Order dated April 22, 2019, the letter motion for extension of time and set a briefing schedule for a class certification motion are denied. All issues in this case have been decided and plaintiffs have no further recourse; final judgment is hereby entered closing the case. (Signed by Clerk of Court Ruby Krajick on 4/22/2019) (Attachments: # 1 Right to Appeal)(km) (Entered: 04/22/2019)
155 BILL OF COSTS NOTICE OF TAXATION to recover costs against All Plaintiffs. Document filed by James McNamara, John Doe, Raymond Kelly, Stephen Latalardo, Joseph Esposito, Peter Loehle. The Clerk may tax costs 14 days after this filing. Objections to Bill of Costs due by 6/5/2019 (Attachments: # 1 Exhibit C [Bill of Costs])(Goykadosh, Brachah) (Entered: 05/22/2019)
156 DECLARATION of Brachah Goykadosh re: 155 Bill of Costs Notice of Taxation, . Document filed by John Doe, Joseph Esposito, Raymond Kelly, Stephen Latalardo, Peter Loehle, James McNamara. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit D, # 4 Exhibit E, # 5 Exhibit F)(Goykadosh, Brachah) (Entered: 05/22/2019)
157 CONSENT LETTER MOTION for Extension of Time to File Response/Reply to bill of costs addressed to Magistrate Judge Gabriel W. Gorenstein from David B. Rankin dated June 5, 2019. Document filed by Phoebe Berg, Jonathan Jetter, Toshiro Kida, John Rivera, Dayna Rozental.(Rankin, David) (Entered: 06/05/2019)
158 ORDER granting 157 CONSENT LETTER MOTION for Extension of Time to File Response/Reply to bill of costs addressed to Magistrate Judge Gabriel W. Gorenstein from David B. Rankin dated June 5, 2019. Document filed by Phoebe Berg, Jonathan Jetter, Toshiro Kida, John Rivera, Dayna Rozental. Granted. Any reply due by June 26, 2019. So ordered. (Replies due by 6/26/2019). (Signed by Magistrate Judge Gabriel W. Gorenstein on 6/5/2019) (rjm) (Entered: 06/06/2019)

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Set/Reset Bill of Costs Deadline/Hearing re: 155 Bill of Costs Notice of Taxation, filed by John Doe, James McNamara, Raymond Kelly, Stephen Latalardo, Peter Loehle, Joseph Esposito. Objections to Bill of Costs due by 6/19/2019 (rjm) (Entered: 06/06/2019)
Minute Entry Bill of Costs: Done on submission 6/6/2019, no objections filed. (dt) (Entered: 06/06/2019)
159 TAXATION OF COSTS: as to 155 Bill of Costs Notice of Taxation. Costs are taxed on June 6, 2019, in favor of New York City Police Commissioner Raymond Kelly, et al., against Phobe Berg, Toshiro Kido, John Rivera, Dayna Rozental, and Jonathan Jetter in the amount of $1,182.55. Done on submission, no objections filed.(dt) (Entered: 06/06/2019)