u u # . Case 1:11-cv-05533-BMC Document 1 Filed 11/14/11 Page 1 of 7 PageID #: 1

FILED

UNITED STATES DISTRICT COURT

IN CLERK'S OFFICE U.S. DISTRICT COURT E.D.N.V.

EASTERN DISTRICT OF NEW YORK -------------------------------------------------------------- )(

* * NOV I 4 2011

ERNEST STEVE BARRY and MICHAEL BURKHART,

BROOKLYN OFFICE 11 Civ.

Plaintiffs,

:CV11 - ~~33 "

-versus-

:

<tMPLMrU

JURY DEMANDED

THE CITY OF NEW YORK, THE NEW YORK

CITY TRANSIT AUTHORITY, and STEVEN DUTES, a member of the New York City Police

SUMMONS ISSUED

Department,

Defendants.

COGf\l~~l

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

PRELIMINARY STATEMENT I. This is a civil rights action to vindicate the rights of the plaintiffs and of the public to take
photographs in the New York City subway system without fear of arrest and to be in public without identification documents. Plaintiffs Steve Barry and Michael Burkhart are longtime railroad enthusiasts and photographers who in August 2010 traveled to New York City to photograph a vintage train sponsored by the New York City Transit Authority. While standing on an outdoor subway platform photographing other subway trains before the arrival of the vintage train, the two were detained by a New York City police officer and charged with unlawful photography. In addition, Mr. Barry, who had identified himself to the officer, was handcuffed and charged with failing to produce identification documents in violation of a Transit Authority rule.

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2. All charges against Mr. Barry and Mr. Burkhart were dismissed. Though they used to come to New York City regularly to photograph subway trains before the August 2010 incident, neither has returned to photograph since then because they fear further arrest.
3. The defendants' actions violated the United States Constitution and New York law, and the Transit Authority's regulation is unconstitutional to the extent it requires persons using the New York City transit system to carry identification. The plaintiffs seek declaratory relief, compensatory damages, and other appropriate relief.
FACTS 4. Plaintiff Emest Steve Barry, age fifty-four, is the editor of Railfan & Railroad Magazine, a
print magazine published monthly for train enthusiasts. He also manages the website http://www.railroadphotographer.coml.Mr. Barry is a United States citizen. 5. Plaintiff Michael Burkhart, age thirty-six, works in marketing in the Philadelphia area. He is a United States citizen. 6. Both Mr. Barry and Mr. Burkhart have been fascinated by trains, including subways, for as long as they can remember. One of Mr. Burkhart's train photographs was first published when he was only thirteen years old. 7. The New York Transit Museum scheduled a run of one of its vintage subway trains (the "Nostalgia Train") for August 21, 2010. Nostalgia Train excursions are popular among photographers. 8. Mr. Barry and Mr. Burkhart, who are friends and members of the National Railway Historical Society (with Mr. Burkhart serving as the president of the Wilmington, Delaware chapter), met in New York City on August 21,2010 to photograph the Nostalgia Train. 9. Neither Mr. Barry nor Mr. Burkhart carried or used any lighting equipment or tripods.
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10. At approximately 3:30 p.m., Mr. Barry and Mr. Burkhart were on the aboveground platform of the Broad Channel subway stop in Brooklyn, waiting for the Nostalgia Train to arrive. They were taking pictures of commonplace subway trains and looking forward to photographing the Nostalgia Train.
II. Defendant Steven Dutes, a uniformed New York City police officer, approached Mr. Barry and Mr. Burkhart and told them that they were not allowed to take photographs in the subway system.
12. Mr. Barry asked Officer Dutes to cite the statute or ordinance they were violating and asked to speak to Dutes's supervisor.
13. Officer Dutes ignored Mr. Barry's request and demanded identification from both men. 14. Mr. Burkhart gave Officer Dutes his driver's license. 15. Mr. Barry stated his full name and address, but did not produce any identification
documents. 16. Officer Dutes handcuffed Mr. Barry and searched his pockets. 17. Officer Dutes did not handcuff Mr. Burkhart. 18. Officer Dutes, with at least three other uniformed New York City police officers, detained
Mr. Barry and Mr. Burkhart in a waiting area in the subway station for approximately half an hour. Mr. Barry remained handcuffed during this time. 19. Mr. Barry was handcuffed solely for not producing identification documents to the police. 20. Officer Dutes issued a summons to Mr. Barry for violating Transit Rule 1050.6(d)(3), stating: "At T/P/O P.O did ask Deft for ID. Deft did refused [sic] to provide at the time of request." This notice is numbered T 103416730.

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.

21. The NYCTA's Transit Rule 1050.6(d)(3) states: "All persons on or in any facility or conveyance of the authority shall ... provide accurate, complete and true information or documents requested by New York City police officers or authority personnel acting within the scope of their employment and otherwise in accordance with law."
22. Officer Dutes did not issue any identification-related summons to Mr. Burkhart. 23. Officer Dutes also issued summonses to Mr. Barry and Mr. Burkhart for taking
"unauthorized photos" in violation of Transit Rule 1050.9(c). These notices are numbered T 103416720 and T 103416711 for Mr. Barry and Mr. Burkhart, respectively. 24. Transit Rule 1050.9(c) provides that "[p]hotography ... in any [NYCTA] facility or conveyance is permitted." 25. After issuing the three summonses, Officer Dutes released Mr. Barry from the handcuffs and allowed him and Mr. Burkhart to leave the waiting area. 26. Mr. Barry and Mr. Burkhart both were humiliated and distressed by their arrests. 27. After his arrest, Mr. Barry had visible marks on his wrists from the handcuffs and had strained a muscle in his arm. The pain from this muscle strain persisted for approximately two weeks. 28. On October I, 2010, Mr. Barry and Mr. Burkhart traveled to New York City to appear before the New York City's Transit Adjudication Bureau (TAB) to contest the notices of violation issued by Officer Dutes. 29. At the TAB hearings, all charges against Mr. Barry and Mr. Burkhart were dismissed. 30. Both Mr. Barry and Mr. Burkhart fear future arrest, detention, and harassment for taking pictures of New York subway trains. Prior to being arrested, Mr. Barry would visit to take pictures ofthe New York City subway trains approximately twice a year, and Mr. Burkhart
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would do so approximately once every two years. As a result of being arrested on August 21,2010, neither has returned to New York to take photographs. Mr. Barry is also apprehensive about encountering the police when taking pictures oftrains in other urban areas, an activity he enjoyed more, and more often, before his arrest. 31. Mr. Barry fears being arrested again for not carrying identification documents. Although prior to his arrest he preferred to leave his driver's license in his car before entering a city, his fear ofthe police is now greater than his fear of being robbed, and he carries his driver's license with him everywhere. 32. Other than on August 21, 2010, neither plaintiff has ever been arrested. 33. Each plaintiff filed a timely notice of claim. 34. At all times relevant to this complaint, Officer Dutes was acting under color oflaw.
CAUSES OF ACTION
35. Defendant Dutes violated the plaintiffs' rights under the First Amendment of the United States Constitution and under Article I, § 8 of the New York State Constitution.
36. Defendant Dutes violated the plaintiffs' rights under the Fourth Amendment of the United States Constitution and under Article I, § 12 of the New York State Constitution.
37. Defendant Dutes violated Steve Barry's rights under the Fourteenth Amendment ofthe United States Constitution and under Article I, § 6 ofthe New York State Constitution.
38. Defendants Dutes and the City of New York violated the plaintiffs' rights under the common law of the State of New York to be free from false arrest, assault, and battery.
39. Defendant NYCTA's regulation 21 NYCRR § 1050.6(d)(3) violates the Fourteenth Amendment of the United States Constitution and Article I, § 6 of the New York State Page 5 of7

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Constitution because it is vague and to the extent it requires individuals using the New York City transit system to carry identification documents. 40. The plaintiffs bring their federal claims under 42 U.S.C. § 1983.

41. The plaintiffs demand a jury.

JURY DEMAND

JURISDICTION, VENUE, AND DEFENDANTS

42. This Court has subject-matter jurisdiction under 28 U.S.C. §§ 1331 and 1343(a)(3)-(4) over the plaintiffs' federal claims.
43. This Court has supplemental jurisdiction under 28 U.S.C. § 1367(a) over the plaintiffs' state law claims.
44. Venue is proper pursuant to 28 U.S.c. § 1391(b)(2) in that all of the events giving rise to the claims occurred in the Eastern District of New York.
45. Defendant Steven Dutes is a New York City police officer. 46. Defendant City of New York is Officer Dutes's employer and is responsible for his tortious
conduct while acting within the scope of his employment. 47. Defendant New York City Transit Authority is a public benefit corporation established by
the laws ofthe State of New York. The NYCTA is responsible for writing and promulgating 21 NYCRR § 1050.

WHEREFORE, the plaintiffs respectfully request that the Court:
(1) Assume jurisdiction over this matter;
(2) Declare that the defendants violated the plaintiffs' rights under federal and state law and award compensatory damages for those violations;
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Case 1:11-cv-05533-BMC Document 1 Filed 11/14/11('-')Page 7 of 7 PageID #: 7

(3) Issue a declaratory judgment that 21 NYCRR § 1050.6(d)(3) is unconstitutional to extent it requires persons using the New York City transit system to carry identification documents;
(4) Award appropriate attorneys' fees and costs; and
(5) Grant any other relief the Court deems appropriate.

Respectfully submitted,

Dated: November 14,2011

CHRTsTOPR DUNN
ARTHUR EISENBERG New York Civil Liberties Union Foundation 125 Broad Street, 19th Floor
New York, NY 10004 (212) 607-3300 Counsel for Plaintiffs

On the Complaint:

ANDREW AVORNLaw Student New York University School of Law Civil Rights Clinic

TIMOTHY-TAYLOR HURLEYLaw Student New York University School of Law Civil Rights Clinic

ELEANOR SPOTTSWOODLaw Student New York University School of Law Civil Rights Clinic
* The plaintiffs and the New York Civil Liberties Union Foundation will be seeking leave of
court to permit these students to serve as attorneys in this matter pursuant to the Eastern District's Plan for Student Practice in Civil Actions

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 Case 1:11-cv-05533-CLP Document 25 Filed 05/18/12 Page 1 of 14 PageID #: 142

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -------------------------------------------------------------- x ERNEST STEVE BARRY and MICHAEL BURKHART,
Plaintiffs,
-versus-
THE CITY OF NEW YORK, THE NEW YORK CITY TRANSIT AUTHORITY, and STEVEN DUTES, a member of the New York City Police Department,
Defendants. -------------------------------------------------------------- x

JUDGMENT PURSUANT TO RULE 68
11 Civ. 5533 (BMC) ECF Case

WHEREAS, on November 14, 2011, plaintiffs Ernest Steve Barry and Michael Burkhart filed this action alleging violations of their civil rights; and
WHEREAS, on March 19,2012, pursuant to Fed. R. Civ. P. 68, defendants City of New York and Steven Dutes served on the plaintiffs an Offer of Judgment in favor of plaintiff Michael Burkhart (Exhibit A attached hereto); and
WHEREAS, on April 2, 2012, plaintiff Michael Burkhart accepted defendants' offer (Exhibit B attached hereto);
NOW, THEREFORE, IT IS HEREBY ORDERED THAT: 1. Defendants City ofNew York and Police Officer Steven Dutes shall pay plaintiff Michael Burkhart the total sum of Two Thousand Five Hundred and One Dollars ($2,501), pursuant to the Rule 68 Offer of Judgment.

1

Case 1:11-cv-05533-CLP Document 25 Filed 05/18/12 Page 2 of 14 PageID #: 143
2. Defendants City of New York and Police Officer Dutes shall also pay plaintiff Michael Burkhart's reasonable attorneys' fees, expenses and costs to the date of the offer.
3. This judgment shall be in full satisfaction of all federal and state law claims or rights that plaintiff Michael Burkhart may have to damages, or any other form of relief, arising out of the alleged acts or omissions of defendants City of New York and Police Officer Dutes, or any official, employee, or agent, either past or present, of the City of New York, or any agency thereof, in connection with the facts and circumstances that are the subject of this action.
4. The offer ofjudgment was made for the purposes specified in Rule 68 of the Federal Rules of Civil Procedure and is not to be construed as an admission of liability by any defendant, or an official, employee, or agent of the City of New York, or any agency thereof; nor is it an admission that plaintiff Michael Burkhart has suffered any damages.
5. Acceptance of the offer ofjudgment has acted to release and discharge defendants City of New York and Police Officer Dutes; their successors or assigns; and all past and present officials, employees, representatives and agents of the City of New York, or any agency thereof, from any and all claims that were or could have been alleged by Michael Burkhart in the above-referenced action. Acceptance of the offer of judgment has waived plaintiff Michael Burkhart's rights to any claim for interest on the amount of the judgment. Plaintiff Michael Burkhart has agreed that payment of $2,501 within ninety (90) days of the date of acceptance of the offer shall be a reasonable time for such payment.
2

Case 1:11-cv-05533-CLP Document 25 Filed 05/18/12 Page 3 of 14 PageID #: 144

Dated: _ _ S_- _,2012
7

SO ORDERED:
s/CLP
COGAN, U.S.D.I:
CH e-!l-'1L L. . ;:::,

fA $,.;1\..J

3

Case 1:11-cv-05533-CLP Document 25 Filed 05/18/12 Page 4 of 14 PageID #: 145
Exhibit A

Case 1:11-cv-05533-CLP Document 25 Filed 05/18/12 Page 5 of 14 PageID #: 146

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ----------------------------------------------------------------------- )( ERNEST STEVE BARRY and MICHAEL BURKHART,
Plaintiffs,
-against-
THE CITY OF NEW YORK, THE NEW YORK CITY TRANSIT AUTHORITY, and STEVEN DUTES, a member of the New York City Police Department,
Defendants.
----------------------------------------------------------------------- )(

RULE 68 OFFER OF JUDGMENT
11 CV 5533 (BMC)

Pursuant to Rule 68 of the Federal Rules of Civil Procedure, defendant City of New York hereby offers to allow plaintiff Michael Burkhart to take a judgment against it in this action for the total sum of Two Thousand Five Hundred and One Dollars ($2,501.00), plus reasonable attorneys' fees, e)(penses and costs to the date of this offer for plaintiffs federal claims.
This judgment shall be in full satisfaction of all federal and state law claims or rights that plaintiff may have to damages, or any other form of relief, arising out of the alleged acts or omissions of defendants City of New York and Police Officer Dutes, or any official, employee, or agent, either past or present, of the City of New York, or any agency thereof, in connection with the facts and circumstances that are the subject of this action.
This offer ofjudgment may only be accepted up to and including April 2, 2012. This offer of judgment is made for the purposes specified in Rule 68 of the Federal Rules of Civil Procedure and is not to be construed as an admission of liability by any

Case 1:11-cv-05533-CLP Document 25 Filed 05/18/12 Page 6 of 14 PageID #: 147
defendant, or any official, employee, or agent of the City of New York, or any agency thereof; nor is it an admission that plaintiff has suffered any damages.
Acceptance of this offer of judgment will act to release and discharge defendants City of New York and Police Officer Dutes; their successors or assigns; and all past and present officials, employees, representatives and agents of the City of New York, or any agency thereof, from any and all claims that were or could have been alleged by Michael Burkhart in the abovereferenced action.
Acceptance of this offer of judgment also will operate to waive plaintiff's rights to any claim for interest on the amount of the judgment.
Plaintiff agrees that payment of $2,501.00 within ninety (90) days of the date of acceptance of the offer shall be a reasonable time for such payment, unless plaintiff received medical treatment in connection with the underlying claims in this case for which Medicare has provided, or will provide payment in full or in part. If'plaintiff is a Medicare recipient who received medical treatment in connection with the claims in this case, the ninety (90) day period for payment shall start to run from the date plaintiff submits to Counsel for Defendants a final demand letter from Medicare.
By acceptance of this Rule 68 Offer of Judgment, plaintiff agrees to resolve any claim that Medicare may have for reimbursement of conditional payments it has made as secondary payer and a Medicare Set-Aside Trust shall be created, if required by 42 U.S.C. §1395y(b) and 42 C.F.R. §§411.22 through 411.26. Plaintiff further agrees to hold harmless defendants, regarding any past and/or future Medicare payments, presently known or unknown made in connection with this matter.
The judgment shall contain and recite the tenns and conditions set forth herein.
-2-

Case 1:11-cv-05533-CLP Document 25 Filed 05/18/12 Page 7 of 14 PageID #: 148

Dated: New York, New York March 19,2012

MICHAEL A. CARDOZO

Corporation Counsel of the City of New York

Attorney for Defendants City of New York and

Police Officer Steven Dutes

100 Church treet, Room 3-161

New Yor

York 100

(212) 78 -157

By:

TO: BYHAND Claudia Angelos, Esq. Ella Spottswood Timothy Hurley Andrew Avom New York University School of Law Furman Hall 245 Sullivan Street New York, NY 10012 Attorneys for Plaintiffs

Case 1:11-cv-05533-CLP Document 25 Filed 05/18/12 Page 8 of 14 PageID #: 149
Exhibit B

Case 1:11-cv-05533-CLP Document 25 Filed 05/18/12 Page 9 of 14 PageID #: 150

CIVIL RIGHTS CLINIC
WASHINGTON SQUARE LEGAL SERVICES, INC. 245 Sullivan Street, SIll Floor New York, New York 10012

(212) 998-6430 Fax (212) 995-4031

Claudia Angelos Supervising Attorney Direct line: (lIZ) 998-646Z Email: c1audla.angeloS@nyu.edu

ANDREW AVORN
TIMOTHY-TAYLOR HURLEY ELEANOR SPO"ITSWOOD Clinic Law Students

BY HAND

April 2, 2012

.

Johana V. Castro

Senior Counsel

New York City Law Department

Office of the Corporation Counsel

100 Church Street

New York, NY 10007

Re: Barry v. City ofNew York 11 Civ.

(BMC)

Dear Ms. Castro:

We enclose our acceptance ofyour Rule 68 Offers ofJudgment. As we have mentioned before, because our case against the NYCTA remains, we expect to depose the
as witness police officers and Officer Dutes next week planned.

CC by email: Richard Schoolman, Esq.

Sincerely, Andrew Tucker Avom

WASHINGTON SQUARE LEGAL SERVICES, INC., IS A NOT-FOR-PROFIT CORPORATION FORMED IN SUPPORT OF THE CLINICAL EDUCATION PROGRAMS OF THE NEW YORK UNIVERSITY SCHOOL OF LAW

Case 1:11-cv-05533-CLP Document 25 Filed 05/18/12 Page 10 of 14 PageID #: 151

UNITED STATES DISTRICT COURT DISTRICT OF NEW YORK
-------------------------------------------------------------- x
ERNEST STEVE BARRY and MICHAEL BURKHART,
Plaintiffs,
-versus-
THE CITY OF NEW YORK, THE NEW YORK CITY TRANSIT AUTHORITY, and STEVEN DUTES, a member of the New York City Police Department,

Acceptance of Rule 68 Offer
11 Civ. 5533 (BMC)
ECFCase

Defendants. -------------------------------------------------------------- x
Plaintiff Michael Burkhart hereby accepts in full the terms of the attached

Defendant City of New York's Rule 68 Offers of Judgment, dated March 19,2012 and

served on March 20, 2012, in the above-named action.

Respectfully submitted,
WASHINGTON SQUARE LEGAL SERVICES. by

Dated: April 2, 2012 New York. New York

Andrew Avom, law student Timothy-Taylor Hurley, law student Eleanor Spottswood. law student 245 Sullivan Street, 5th Floor New York. NY 10012 (212) 998-6430 Co-Counsel for Plaintiffs

Case 1:11-cv-05533-CLP Document 25 Filed 05/18/12 Page 11 of 14 PageID #: 152

UNITED STATES DISTRICT COURT EASTERN DISTRlCT OF NEW YORK ----------------------------------------------------------------------- x
ERNEST STEVE BARRY and MICHAEL BURKHART,
Plaintiffs,
-against-
THE CITY OF NEW YORK, THE NEW YORK CITY TRANSIT AUTHORITY, and STEVEN DUTES, a member of the New York City Police Department,

-.--------------------.;. ....

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

RULE 68 OFFER OF.JtrOGMENT
II CV 5533 (BMC)

Pursuant to Rule 68 of the Federal Rules of Civil Procedure, defendant City of New York hereby offers to allow plaintiff Michael Burkhart to take a judgment against it in this action for the total sum of Two Thousand Five Hundred and One Dollars ($2,501.00), plus reasonable attorneys' fees, expenses and costs to the date of this offer for plaintiff's federal claims.
This judgment shall be in full satisfaction of all federal and state law claims or rights that plaintiff may have to daniages, or any other fonn of relief, arising out of the alleged acts or omissions of defendants City of New York and Police Officer Dutes, or any official, employee, or agent, either past or present. of the City of New York. or any agency thereof, in connection with the facts and circumstances that are the subject of this action.
This offer ofjudgment may only be accepted up to and including April 2, 2012. This offer of judgment is made for the purposes specified in Rule 68 of the Federal Rules of Civil Procedure and is not to be construed as an admission of liability by any

Case 1:11-cv-05533-CLP Document 25 Filed 05/18/12 Page 12 of 14 PageID #: 153

defendant, or any official, employee, or agent of the City of New York, or any agency thereof;

nor is it an admission that plaintiff has suffered any damages.

Acceptance of tWs offer ofjudgment will act to release and discharge defendants

City of New York and Police Officer Dutes; their

or assigns; and all past and present

officials, employees, representatives and agents of the City ofNew York, or any agency thereof,

from any and all claims that were or could have been alleged by Michael Burkhart in the above-

referenced action.

Acceptance of tWs offer of judgment also will operate to waive plaintiff's rights

to any claim for interest on the amount of the judgment.

Plaintiff agrees that payment of $2,501.00 within ninety (90) days of the date of

acceptance of the offer shall be a reasonable for such payment, unless plaintiff received

medical treatment in connection with the underlying claims in this case for which Medicare has

provided, or will provide payment in full or iii part. If'plaintiff is a Medicare recipient who

received medical treatment in connection with the claims in this case, the ninety (90) day period

for payment shall start to run from the date plaintiff submits to Counsel for Defendants a final

demand letter from Medicare.

By acceptance of this Rule 68 Offer of Judgment, plaintiff agrees to resolve any

claim that Medicare may have for reimbursement of conditional payments it has made as

secondary payer and a Medicare Set-Aside Trust shall be created, jf required by 42 U.S.C.

§1395y(b) and 42 C.F.R. §§41 1.22 through 411.26. Plaintiff further agrees to hold harmless

defendants, regarding any past andlor future Medicare payments, presently known or unknown

made in connection with this matter. The judgment shall contain and recite the tenns and conditions set forth herein.

Case 1:11-cv-05533-CLP Document 25 Filed 05/18/12 Page 13 of 14 PageID #: 154

Dated: New York, NewYork March 19,2012

MICHAEL A. CARDOZO Corporation Counsel of the City of New York

Attorney for Defendants City of New York and

Police Officer Steven Dutes

100 Church' treel, Room 3-161

New Yot. ' , ' York 10Q')

(212) 78-157 '

'I

By:

.

'.

, , ' ,,' , ' ,.

"

.,:- '

.
;

,

,."...""""

TO: BYHANP Claudia Angelos, Esq. Ella Spottswood Timothy Hurley Andrew Avom New York University School 'of Law
Furman Hall 245 Sullivan Street New York, NY 10012 Attorneys for Plaintiffs

Case 1:11-cv-05533-CLP Document 25 Filed 05/18/12 Page 14 of 14 PageID #: 155
CERTIFICATE OF SERVICE I hereby certify that on April 2, 2012, I served the attached acceptances of the Defendant City of New York's Rule 68 Offers of Judgment for Plaintiffs Ernest Steve Barry and Michael Burkhart on the following counsel of record:
Johana V. Castro Senior Counsel New York City Law Department Office ofthe Corporation Counsel 100 Church Street New York, NY 10007
Andrew Tucker AVOID

Case 1:11-cv-05533-CLP Document 26 Filed 05/18/12 Page 1 of 14 PageID #: 156

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -------------------------------------------------------------- x ERNEST STEVE BARRY and MICHAEL BURKHART,
Plaintiffs,
-versus-
THE CITY OF NEW YORK, THE NEW YORK CITY TRANSIT AUTHORITY, and STEVEN DUTES, a member of the New York City Police Department,
Defendants. -------------------------------------------------------------- x

DOCKET
JUDGMENT PURSUANT TO RULE 68 11 Civ. 5533 (BMC) ECF Case

WHEREAS, on November 14,2011, plaintiffs Ernest Steve Barry and Michael Burkhart filed this action alleging violations of their civil rights; and
WHEREAS, on March 19,2012, pursuant to Fed. R. Civ. P. 68, defendants City of New York and Steven Dutes served on the plaintiffs an Offer of Judgment in favor of plaintiff Ernest Steve Barry (Exhibit A attached hereto); and
WHEREAS, on April 2, 2012, plaintiff Ernest Steve Barry accepted defendants' offer (Exhibit B attached hereto);
NOW, THEREFORE, IT IS HEREBY ORDERED THAT: 1. Defendants City of New York and Police Officer Steven Dutes shall pay plaintiff Ernest Steve Barry the total sum of Five Thousand and One Dollars ($5,001), pursuant to the Rule 68 Offer of Judgment.

1

Case 1:11-cv-05533-CLP Document 26 Filed 05/18/12 Page 2 of 14 PageID #: 157
2. Defendants City of New York and Police Officer Dutes shall also pay plaintiff Ernest Steve Barry's reasonable attorneys' fees, expenses and costs to the date of the offer.
3. This judgment shall be in full satisfaction of all federal and state law claims or rights that plaintiff Ernest Steve Barry may have to damages, or any other form of relief, arising out of the alleged acts or omissions of defendants City of New York and Police Officer Dutes, or any official, employee, or agent, either past or present, of the City of New York, or any agency thereof, in connection with the facts and circumstances that are the subject of this action.
4. The offer ofjudgment was made for the purposes specified in Rule 68 of the Federal Rules of Civil Procedure and is not to be construed as an admission of liability by any defendant, or an official, employee, or agent of the City of New York, or any agency thereof; nor is it an admission that plaintiff Ernest Steve Barry has suffered any damages.
5. Acceptance of the offer of judgment has acted to release and discharge defendants City of New York and Police Officer Dutes; their successors or assigns; and all past and present officials, employees, representatives and agents of the City of New York, or any agency thereof, from any and all claims that were or could have been alleged by Ernest Steve Barry in the above-referenced action. Acceptance of the offer of judgment has waived plaintiff Ernest Steve Barry's rights to any claim for interest on the amount of the judgment. Plaintiff Ernest Steve Barry has agreed that payment of $5,001 within ninety (90) days of the date of acceptance of the offer shall be a reasonable time for such payment.
2

Case 1:11-cv-05533-CLP Document 26 Filed 05/18/12 Page 3 of 14 PageID #: 158

Dated:
I

__:' 2012

SO ORDERED:
s/CLP

3

Case 1:11-cv-05533-CLP Document 26 Filed 05/18/12 Page 4 of 14 PageID #: 159
Exhibit A

Case 1:11-cv-05533-CLP Document 26 Filed 05/18/12 Page 5 of 14 PageID #: 160

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------------------- )( ERNEST STEVE BARRY and MICHAEL BURKHART,
Plaintiffs,
-against-
THE CITY OF NEW YORK, THE NEW YORK CITY TRANSIT AUTHORITY, and STEVEN DUTES, a member of the New York City Police Department,
Defendants.
----------------------------------------------------------------------- )(

RULE 68 OFFER OF JUDGMENT
11 CV 5533 (BMC)

Pursuant to Rule 68 of the Federal Rules of Civil Procedure, defendant City of New York hereby offers to allow plaintiff Ernest Steve Barry to take a judgment against it in this action for the total sum of Five Thousand and One Dol1ars ($5,001.00), plus reasonable attorneys' fees, e}(penses and costs to the date of this offer for plaintiff's federal claims.
This judgment shall be in full satisfaction of all federal and state law claims or rights that plaintiff may have to damages, or any other form of relief, arising out of the alleged acts or omissions of defendants City of New York and Police Officer Dutes, or any officia" employee, or agent, either past or present, of the City of New York, or any agency thereof, in connection with the facts and circumstances that are the subject of this action.
This offer ofjudgment may only be accepted up to and including April 2, 2012. This offer of judgment is made for the purposes specified in Rule 68 of the Federal Rules of Civil Procedure and is not to be construed as an admission of liability by any defendant, or any official, employee, or agent of the City of New York, or any agency thereof; nor is it an admission that plaintiff has suffered any damages.

Case 1:11-cv-05533-CLP Document 26 Filed 05/18/12 Page 6 of 14 PageID #: 161
Acceptance of this offer of judgment will act to release and discharge defendants City of New York and Police Officer Dutes; their successors or assigns; and all past and present officials, employees, representatives and agents of the City of New York, or any agency thereof, from any and all claims that were or could have been alleged by Ernest Steve Barry in the abovereferenced action.
Acceptance of this offer of judgment also will operate to waive plaintiff's rights to any claim for interest on the amount of the judgment.
Plaintiff agrees that payment of $5,001.00 within ninety (90) days of the date of acceptance of the offer shall be a reasonable time for such payment, unless plaintiff received medical treatment in connection with the underlying claims in this case for which Medicare has provided, or will provide payment in full or in part. If plaintiff is a Medicare recipient who received medical treatment in connection with the claims in this case, the ninety (90) day period for payment shall start to run from the date plaintiff submits to Counsel for Defendants a final demand letter from Medicare.
By acceptance of this Rule 68 Offer of Judgment, plaintiff agrees to resolve any claim that Medicare may have for reimbursement of conditional payments it has made as secondary payer and a Medicare Set-Aside Trust shall be created, if required by 42 U.S.C. §1395y(b) and 42 C.F.R. §§41 1.22 through 411.26. Plaintiff further agrees to hold harmless defendants, regarding any past andlor future Medicare payments, presently known or unknown made in connection with this matter.
The judgment shall contain and recite the terms and conditions set forth herein.
-2-

Case 1:11-cv-05533-CLP Document 26 Filed 05/18/12 Page 7 of 14 PageID #: 162

Dated: New York, New York March 19,2012

MICHAEL A. CARDOZO Corporation Counsel of the City of New York Attorney for Defendants City of New York and Police Officer Steven Dutes 100 Church Stree Room 3-161
j ' New York, Ne}Y' ork 10007 /"/
(212) 788-157.
By:

TO: BYHAND Claudia Angelos, Esq. Ella Spottswood Timothy Hurley Andrew Avom New York University School of Law Furman Hall 245 Sullivan Street New York, NY 10012 Attorneysfor Plaintiffs

-3-

Case 1:11-cv-05533-CLP Document 26 Filed 05/18/12 Page 8 of 14 PageID #: 163 Case 1:11-cv-05533-CLP Document 21 Filed 05/04112 Page 8 of 14 PagelD #: 132
Exhibit B

Case 1:11-cv-05533-CLP Document 26 Filed 05/18/12 Page 9 of 14 PageID #: 164

CIVIL RIGHTS CLINIC
WASHINGTON SQUARE LEGAL SERVICES, INC. 245 Sullivan Street, stb Floor New York, New York 10012

(212) 998-6430 Fax (212) 995-4031

Claudia Angelos Supervising Attorney Direct line: (212) 998"'462 Email: daudla.angeloS@nyu.edu

ANDREW AVORN TIMOTHY-TAYLOR HURLEY ELEANOR SPO'ITSWOOD Cllnie Law Students

BY HAND

April 2, 2012

.

Johana V. Castro

Senior Counsel

New York City Law Department

Office ofthe Corporation Counsel

100 Church Street

New York, NY 10007

Re: Barry v. City o/New York 11 Civ. S533 (BMC)
Dear Ms. Castro:
We enclose our acceptance of your Rule 68 Offers ofJudgment. As we have mentioned before, because our case against the NYCTA remains, we expect to depose the
as witness police officers and Officer Dutes next week planned.

CC by email: Richard Schoolman, Esq.

Sincerely, Andrew Tucker Avom
. .."
:c

WASHINGTON SQUARE LEGAL SERVICES, INC., IS A NOT-FOR-PROFIT CORPORATION FORMED IN SUPPORT OF THE CLINICAL EDUCATION PROGRAMS OF THE NEW YORK UNIVERSITY SCHOOL OF LAW

Case 1:11-cv-05533-CLP Document 26 Filed 05/18/12 Page 10 of 14 PageID #: 165

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------------- x
ERNEST STEVE BARRY and MICHAEL BURKHART,
Plaintiffs,

Acceptance of Rule 68 Offer
11 Civ. 5533 (BMC)

-versus-

ECF Case

THE CITY OF NEW YORK, THE NEW YORK CITY TRANSIT AUTHORITY, and STEVEN DUTES, a member of the New York City Police Department,

Defendants.
--------------------------------------------------------------x
PlaintiffEmest Steve Barry hereby accepts in full the terms of the attached

Defendant City ofNew York's Rule 68 Offers of Judgment, dated March 19,2012 and

served on March 20, 2012, in the above-named action.

Respectfully submitted,
WASHINGTON SQUARE LEGAL SERVICES. by

Dated: April 2, 2012 New York, New York

Andrew Avom, law student Timothy-Taylor Hurley. law student Eleanor Spottswood, law student 245 Sullivan Street, 5th Floor New York, NY 10012 (212) 998-6430 Co-Counsel for Plaintiffs

Case 1:11-cv-05533-CLP Document 26 Filed 05/18/12 Page 11 of 14 PageID #: 166

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

ERNEST STEVE BARRY and MICHAEL BURKHART, Plaintiffs,
-againstTHE CITY OF NEW YORK, THE NEW YORK CITY TRANSIT AUTHORITY, and STEVEN DUTES, a member of the New York City Police Department,
Defendants.
X

RULE 68 OFFER OF JUDGMENT
11 CV 5533 (BMC)

Pursuant to Rule 68 of the Federal Rules of Civil Procedure, defendant City of New York hereby offers to allow plaintiff Ernest Steve Barry to take a judgment against it in this action for the total sum of Five Thousand and One Dollars ($5,001.00), plus reasonable attorneys' fees, expenses and costs to the date of this offer for plaintiff's federal claims.
This judgment shall be in full satisfaction of all federal and state law claims or rights that plaintiff may have to damages, or any other fonn of relief, arising out of the alleged acts or omissions of defendants City of New York and Police Officer Dutes, or any official" employee, or agent, either past or present, of the City of New York, or any agency thereof, in connection with the facts and circumstances that are the subject of this action.
This offer ofjudgment may only be accepted up to and including April 2, 2012. This offer of judgment is made for the purposes specified in Rule 68 of the Federal Rules of Civil Procedure and is not to be construed as an admission of liability by any defendant, or any official, employee, or agent of the City of New York, or any agency thereof; nor is it an admission that plaintiffhas suffered any damages.

Case 1:11-cv-05533-CLP Document 26 Filed 05/18/12 Page 12 of 14 PageID #: 167
Acceptance of this offer ofjudgment will act to release and discharge defendants City of New York and Police Officer Dutes; their successors or assigns; and all past and present officials, employees, representatives and agents of the City of New York, or any agency thereof, from any and all claims that were or could have been alleged by Ernest Steve Barry in the abovereferenced action.
Acceptance of this offer of judgment also will operate to waive plaintiffs rights to any claim for interest on the amount of the judgment.
Plaintiff agrees that payment of $5,001.00 within ninety (90) days of the date of acceptance of the offer shall be a reasonable time for such payment, unless plaintiff received medical treatment in connection with the underlying cla:ims in this case for which Medicare has provided. or will pr.ovide payment in full or in part. If plaintiff is a Medicare recipient who received medical treatment in connection with the claims in this case, the ninety (90) day period for payment shall start to run from the date plaintiff submits to Counsel for Defendants a final demand letter from Medicare.
By acceptance of this Rule 68 Offer of Judgment, plaintiff agrees to resolve any claim that Medicare may have for reimbursement of conditional payments it has made as secondary payer and a Medicare Set-Aside Trust shall be created, if required by 42 U.S.C. §1395y(b) and 42 C.F.R. §§411.22 through 411.26. Plaintiff further agrees to hold hannless defendants, regarding any past and/or future Medicare payments, presently known or unknown made in connection with this matter.
The judgment shall contain and recite the terms and conditions set forth herein.
-2-

Case 1:11-cv-05533-CLP Document 26 Filed 05/18/12 Page 13 of 14 PageID #: 168

Dated: New York, New York March 19,2012

MICHAEL A. CARDOZO

Corporation Counsel of the City of New York

Attorney for Defendants City of New York and

Police Officer Steven Dutes

100 Church Streel Room 3-161

New York, Ne '-. ork 10007 /'7
(212) 788-151:·

___............. - . ..

By:

TO: BYHAND Claudia Angelos, Esq. Ella Spottswood Timothy Hurley Andrew Avom New York University School of Law FunnanHall 245 Sullivan Street New York, NY 10012 Attorneysfor Plaintiffs

-3-

Case 1:11-cv-05533-CLP Document 26 Filed 05/18/12 Page 14 of 14 PageID #: 169
CERTIFICATE OF SERVICE I hereby certify that on April 2, 2012, I served the attached acceptances of the Defendant City of New York's Rule 68 Offers of Judgment for Plaintiffs Ernest Steve Barry and Michael Burkhart on the following counsel of record:
Johana V. Castro Senior Counsel New York City Law Department Office of the Corporation Counsel 100 Church Street New York, NY 10007
Andrew Tucker Avorn

 
 Case 1:11-cv-05533-CLP Document 50 Filed 08/06/12 Page 1 of 4 PageID #: 508

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
--------------------------------------------------)(
ERNEST STEVE BARRY and MICHAEL BURKHART,
Plaintiffs, -against-
CITY OF NEW YORK, NEW YORK CITY TRANSIT AUTHORITY, and STEVEN DUTES, 3 member of the New York City Police Department,
Defendants,
--------------------------------------------------)(

ORDER II CV 5533 (CLP)

On November 14, 2011, plaintiffs Ernest Steve Barry ("Barry") and Michael Burkhart ("'Burkhart") commenced a civil rights action against the City of New York, the New York City Transit Authority ("Transit Authority"), and Steven Dutes, a member of the New York City Police Department {"Officer Dutes"),l Plaintiffs claim that their constitutional rights were violated when Officer Dutes demanded identification from them while they were photographing a vintage New York City subway traio. The officer subsequently arrested Mr. Barry when he offered his name but did not produce an identification document. Plaintiffs raise both facial and as applied challenges to the Transit Authority rule on identification ("the 10 Rule") that Officer Dutes relied upon in approaching Bany; plaintiffs claim that the 10 Rule is unconstirntionally vague and violates the fundamental right to freedom of movement without identification papers,

'Plaintiffs' claims against the City of New York and Officer Dutes have since be<:n resolved through plaintiff's acceptance of a Rule 68 Offer of Judgment; therefore, the Transit Authority is the only remaining defendant. (~Docket Entry #48)_

Case 1:11-cv-05533-CLP Document 50 Filed 08/06/12 Page 2 of 4 PageID #: 509
(PI.'s Mem. l at I). Although there is no dispute that Barry declined to provide identification when asked by
the officer, the parties dispute the location where Mr. Barry was standing when he was approached by Officer Dutes. Mr. Barry contends that he was standing on the subway station platfunn, while the Transit Authority contends that Mr. Barry was standing in an unauthorized
area. (Transit Authority Let. Jl at 1-2). Mr. Barry's location may be relevant in detennining whether Officer Dutes had a proper purpose when he approached Mr. Barry. (MJ
On June 27, 2012, this Court held a status conference with the parties. At the conference, the parties expressed their desire to attempt to resolve the remaining issues in the case through cross motions for summary judgment. The Court granted the parties leave to file the motions and set a schedule for filings. However, the Court instructed the parties to limit their motions to issues that did not involve the unresolved factual question of where Mr. Barry was standing when Officer Dutes approached him and demanded identification.
On July 23, 2012, defendant Transit Authority filed a motion to dismiss the case, and on the same day, plaintiff filed a cross-motion for summary judgment. Plaintiff's motion includes an as applied challenge to the ID Rule. By letter motion dated July 24, 2012, defendant Transit Authority moves to strike plaintiff's motion to the extent that it seeks judgment on the as applied challenge to the ID Rule. Defendant contends that, based 00 its understanding of the Court's
lCitations to "Pl.'s Mem." refer to PlaintiffEmest Steve Barry's Memorandum of Law in Support of Motion for Summary Judgment, filed by plaintiff on July 23, 2012.
'Citations to "Transit Authority LeI. [" refer to the letter filed by defendant Transit Authority on June 15,2012.
2

Case 1:11-cv-05533-CLP Document 50 Filed 08/06/12 Page 3 of 4 PageID #: 510
instructions during the June 27,2012 status conference, plaintiff was instructed to limit his motion to issues relating to thejada! challenge to the ID Rule. (Transit Authority Let. 1l4 ). Plaintiff Barry argues that his as applied challenge to the ID Rule was encompassed within the Court's instructions, because the motion as drafted does not place in issue the question of where Mr. Barry was standing, and therefore is not dependent on a resolution of the parties' factual dispute. (Pl.'s Let.' at 1-2).
!laving reviewed both parties' letters and motions, this Court finds that striking plaintiffs motion, insofar as it addresses the as applied challenge to the ID Rule, is not warranted, because the motion appears to raise a new argument not addressed at the conference, and resolution of this new argument does not seem to require a detennination oflocation. Accordingly, defendant's motion to strike that portion of plaintiffs motion for swnmary judgment raising the as applied challenge is hereby denied.
By letter dated August 2, 2012, defendant requested an extension of the brietlng schedule previously established and an adjournment of oral argwnent. The Court hereby grants both requests, The parties must file their oppositions to each other's motions by Septem~r 10, 2012, and they must file replies by September 24, 2012. The oral argument previously scheduled for 11 :00 a,m, on September 13,2012 is rescheduled for II :00 a.m. on Octo~r 23, 2012.
'Citations to '"Transit Authority Let. II'" refer to the letter filed by defendant Transit Authority on July 24, 2012.
'Citations to '"Pl.'s Let." reter to the letter filed by plaintiff on July 24, 2012. 3

Case 1:11-cv-05533-CLP Document 50 Filed 08/06/12 Page 4 of 4 PageID #: 511

CONCLUSION For the reasons stated above, this Court hereby denies defendant's motion to strike. The Court also grants an extension of the briefing schedule and adjournment of oral argument. The Clerk is directed to send copies oflhis Order 10 the parties either electronically through the Ele\:tronic Case filing (ECF) system or by mail.

SO ORDERED.
Dated: Brooklyn, New York August 6. 2012

/s/ CHERYL POLLAK
Cheryl Ltt:0llak United S les Magistrate Judge Eastern District of New York

4

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ----------------------------------------------------)( ERNEST STEVE BARRY and MICHAEL BURKHART,
Plaintiffs,

MEMORANDUM AND ORDER

- against-

11 CV 5533 (CLP)

THE CITY OF NEW YORK, et aI.,

Defendants. -----------------------------------------------------)(
On November 14,2011, plaintiffs Ernest Steve Barry ("Barry" or "plaintiff') and Michael

Burkhart ("Burkhart") commenced this civil rights action, pursuant to 42 U.S.C. § 1983, against

the City ofNew York, the New York City Transit Authority ("TA" or "defendant"), and Officer

Steven Dutes, a member of the New York City Police Department, alleging false arrest, assault,

and battery, in violation of the plaintiffs' rights under the First, Fourth, and Fourteenth

Amendments of the United States Constitution, and Article I, sections 6,8, and 12 of the New

York State Constitution. In addition to compensatory damages, attorneys' fees and costs,

plaintiff Barry seeks a declaratory judgment that the TA's "ID Rule," 21 N.Y.C.R.R. §

1050.6(d)(3), is unconstitutional because it is vague and because it requires people using the New

York City transit system to carry identification documents.

By Notice of Motion dated July 23,2012, plaintiff Barry moved for summary judgment

against defendant TA. By Notice of Motion dated July 23,2012, defendant TA cross moved,

pursuant to Federal Rule of Civil Procedure 12(b)(I), 12(b)(6), and 12(c), to dismiss the

Complaint for lack of standing and for failure to state a claim upon which relief could be

1

granted. I For the reasons stated below, the Court grants plaintiffs motion for summary judgment and denies defendant's motion to dismiss.2
FACTUAL BACKGROUND
Plaintiff Barry is a longtime train enthusiast and editor of the Railfan & Railroad Magazine. (PI.'s 56.1 Stmne ~ 5; Barry DecI.4~ 2; Def.'s 56.1 Resp.5 ~ 5). On August 21, 2010,
Barry and Burkhart were in New York to photograph the Nostalgia Train, a historic subway train operated by the Transit museum. (PI.'s 56.1 Stmnt ~ 6; Def.'s 56.1 Resp. ~ 6; Barry Dep.6 at 33-
35). Plaintiff and Mr. Burkhart spent the morning of August 21 photographing various subway trains, including the Nostalgia Train, and in the aft~rnoon, they went to the Broad Channel
IOn May 18, 2012, plaintiffs entered into a Stipulation of Settlement with the City of New York and Officer Dutes, resolving plaintiffs' claims against those defendants. The settlement also resolved all of Mr. Burkhart's claims. (See Declaration of Carl J. Copertino, dated July 20,2012 ("Copertino Decl. I") ~ 11). Thus, the instant motions relate only to defendant TA and to plaintiff Barry.
20n May 8, 2012, the parties consented to have the case assigned to the undersigned for all purposes, including entry ofjudgment.
3Citations to "PI.'s 56.1 Stmnt" refer to Plaintiffs Local Civil Rule 56.1 Statement of Undisputed Facts, dated July 23,2012.
4Citations to "Barry Dec1." refer to the Declaration of Ernest Steve Barry, dated July 20, 2012 and attached as Ex. F to the Declaration of Mariko Hirose in Support of Plaintiff Ernest Steve Barry's Motion for Summary Judgment ("Hirose Dec1."), dated July 23,2012.
5Citations to "Def.'s 56.1 Resp." refer to Defendant's Statement in Response to Plaintiff's Undisputed Statement of Facts Pursuant to Local Civil Rule 56.1, dated September 10,2012.
6Citations to "Barry Dep." refer to pages in the deposition of plaintiff Barry taken March 20,2012 and attached to the Hirose Decl. as plaintiffs Ex. G and to the Declaration of Carl J. Copertino, dated September 10,2012 ("Copertino Decl. II") as defendant's Ex. D.
2

subway stop where they took photographs while waiting for the Nostalgia Train to arrive. (Pl.'s 56.1 Stmnt ~~ 7-8; Def.'s 56.1 Resp. ~~ 7-8; Barry Dep. at 40,42).
On August 21,2010, Officers Steven Dutes, Nigel Balkaran, Joseph Brennan, and Lyndon Blakely were officers of the New York City Police Department ("NYPD"), responsible for enforcing the TA's rules and regulations. (Pl.'s 56.1 Stmnt ~ 4; Def.'s 56.1 Resp. ~ 4; Dutes Dep. at 14, 28; Balkaran Dep. at 18,38; Brennan Dep. at 12,37; Blakely Dep. at 22).7 While Barry and Burkhart were waiting for the Nostalgia Train, Officers Dutes and Balkaran approached Barry and Burkhart, and, according to plaintiff Barry, the officers demanded that the plaintiffs produce identification. (PI.'s 56.1 Stmnt ~~ 9, 10).
Defendant admits that the officers approached Barry and Burkhart because a train crew member informed the officers that there were two men on the tracks taking photographs. (Def.'s 56.1 Resp. ~ 9). Defendant claims that as Officer Dutes approached the plaintiff and Mr. Burkhart, he saw them running up the steps from the tracks and putting their equipment away. (ld.; Dutes Dep. at 86). According to defendant, there was a sign at the location indicating that no one is allowed on the steps or on the tracks. (Def.' s 56.1 Resp. ~ 9). Defendant contends that Officer Dutes told the plaintiffs that they were not allowed "down there" and that photography was not allowed in the subway system. (ld. ~ 10; Barry Dep. at 46). Plaintiff Barry then asked the officer to cite the specific ordinance that prohibited photography and asked him to call his
7Citations to "Dutes Dep." refer to the Deposition of Steven Dutes, dated April 12, 2012; "Balkaran Dep." refers to the Deposition of Nigel Balkaran, dated April 10, 2012; "Brennan Dep." refers to the Deposition of Joseph Brennan, dated April 10, 2012; and "Blakely Dep." refers to the Deposition of Lyndon Blakely, dated April 10, 2012. These depositions are attached to the Hirose Decl. as plaintiffs Exs. B, C, D, and E and to the Copertino Dec!. II as defendant's Exs. I, F, G, and H, respectively.
3

supervisor. (Def.'s 56.1 Resp. ~ 9; Barry Dep. at 46-47). The officer then infonned plaintiff that no supervisor was necessary and he asked plaintiff for identification. (Def.' s 56.1 Resp. ~ 9; Barry Dep. at 47).
Plaintiff claims that in response to Officer Dutes' demand for identification, Burkhart gave the officer his Pennsylvania driver's license, and Barry verbally identified himself by giving the officer his full name. (PI.'s 56.1 Stmnt ~~ 10-12). Defendant contends that the officer did not "demand" identification and claims that although Barry verbally identified himself, he did so only after the officer requested identification from Barry three times. (Def.'s 56.1 Resp. ~~ 1012). Defendant also claims that Barry "refused" to provide identification and tried to walk away after being asked to stop. (Def.'s 56.1 Resp. ~~ 11-12). Defendant claims that Burkhart's testimony supports defendant's claim that Barry did not initially comply with the officer's request for identification. Citing Burkhart's testimony, defendant .contends that it was only after the officer put his hand on Barry to stop him from leaving that Barry gave the officer his name. (Id. ~ 12; Burkhart Dep.8 at 42). The officer testified that Barry said at least twice, "I don't have to give you 1D." (Id.)
Barry claims that he did not give the officer an identification document, explaining that he did not have one with him at the time. (PI.' s 56.1 Stmnt ~ 13; Barry Dep. at 90; Dutes Dep. at 37). According to Barry, he believed that he did not have his driver's license with him at the time because "he frequently travels without a license when he is on the subway system for an entire day of taking photographs." (Barry Dep. at 48). Plaintiff claims that after Barry gave the
8Citations to "Burkhart Dep." refer to the Deposition of Michael Burkhart, dated March 20,2012 and attached to the Copertino Decl. II as defendant's Ex. E.
4

officer his full name but did not produce an identification document, the officer handcuffed Barry, searched for his wallet, found the wallet in Barry's back pocket, and retrieved Barry's driver's license which was in his wallet. (PI.'s 56.1 Stmnt ~~ 15, 16; Dutes Dep. at 42).
Defendant contends that plaintiff Barry simply told Officer Dutes that he did not have ID and that he did not have to give Officer Dutes ID, rather than "explain[ing] that he did not have an identification document with him." (Def.'s 56.1 Resp. ~ 13). Defendant further contends that the officer only handcuffed Mr. Barry after Barry "assumed a 'fighting stance' and 'started getting very loud,' stating 'I can take photos anywhere I want' and 'I don't have to give you ID.''' (Id. ~ 15). Defendant asserts that Barry admitted that he was "irritated" because he had been told before that he could not take pictures.9 (Id.; Barry Dep. at 52). The officer also denied that he searched Mr. Barry for his wallet. (Def.'s 56.1 Resp. ~ 16). Instead, defendant claims that, after Officer Dutes had handcuffed Mr. Barry, Officer Dutes frisked Mr. Barry to find the wallet where plaintiff said it was located. (Id.) The officer claims that he asked for Barry's identification because he felt that "giving...his name was not good enough at the time, the way he was acting" (id. ~ 17; PI.'s 56.1 Stmnt ~ 17), and the officer also wanted to run a warrants check and record his information on the TA summons. (Def.'s 56.1 Resp. ~ 17).
Plaintiff claims that he was detained in handcuffs until the officer finished running the warrants check and preparing the notices of violation. (PI.' s 56.1 Stmnt ~ 18). According to defendant, less than 5 minutes after placing Barry in handcuffs, an officer escorted Barry to a waiting area upstairs, where Barry sat on a bench while Officer Dutes completed the paperwork,
9It is undisputed that the TA does not prohibit photography within the New York City Transit System. (PI. 's 56.1 Stmnt ~ 25; Def. 's 56.1 Resp. ~ 25).
5

which took approximately 10 to 15 minutes. (Def.'s 56.1 Stmnt ~ 18).
Barry and Burkhart were each given a Notice of Violation ("NOV") for "unauthorized
photography" (id. ~ 21; PI.'s 56.1 Stmnt ~ 21), and Mr. Barry was given a NOV for failure to
produce identification under the ID Rule. (PI.' s 56.1 Stmnt ~ 19; Def.'s 56.1 Resp. ~ 19). The
ID Rule provides in relevant part as follows:
All persons on or in any facility or conveyance of the authority shall: provide accurate, complete and true information or documents requested by New York City police officers or authority personnel acting within the scope of their employment and otherwise in accordance with law.
21 N.Y.C.R.R. § 1050.6(d)(3).
Plaintiff claims that the officer gave him the NOV because the officer believed that Mr.
Barry had not complied with the officer's request for identification. (PI.' s 56.1 Stmnt ~ 20).
Although defendant appears to concede that the officer gave Barry the violation because he
refused to comply with the request for identification, defendant cites Officer Dutes' testimony as
further explanation. (Def.'s 56.1 Stmnt ~ 20). Specifically, according to Officer Dutes: "[b]y
walking away, putting his hands behind his back, the fighting stance, I have to ask him for ID, he
was just like, I don't have ID, you know, so that's what I meant when I said he refused to
comply." (ld.; Dutes Dep. at 51).10
Plaintiff alleges that Mr. Barry was directed to appear before the Transit Adjudication
IODefendants argue that Mr. Barry lied to Officer Dutes when he claimed not to have identification with him and that it is lying about not having an identification document in one's possession - rather than not having identification itself - that is a violation of the ID Rule. (Defendant Transit Authority'S Memorandum of Law in Support of its Motion to Dismiss the Complaint, dated July 23,2012 ("Def.'s Mem.") at 4). However, there is nothing in the record to indicate that Mr. Barry's alleged dishonesty, rather than his failure to produce identification, was the reason that Officer Dutes handcuffed Mr. Barry and issued him an NOV.
6

Bureau ("TAB") on October 1,2010, requiring him to travel to New York City and miss a day of work. (PI. 's 56.1 Stmnt ~~ 22,23). The TA denies any responsibility for his lost wages, and notes that Mr. Barry could have contested the NOV in writing. (Def.'s 56.1 Resp. ~ 23; Def.'s
The TAB dismissed the NOV issued to Barry under the ID Rule based on the officer's failure to state a reason for the request for identification and it also dismissed the second Notice of Violation issued for the photography, noting that "[i]t is not illegal ...to take photographs within the New York City Transit System." (PI.'s 56.1 Stmnt ~~ 24,25; Pl.'s Ex. J; Def.'s 56.1 Resp. ~~ 24, 25). Defendant cites the Declaration of Debra Siedman Dewan, a Senior Hearing Officer for the TAB, who represents that "'no person on or in any facility or conveyance of NYCTA is required to carry identification documents. Consequently, if a NOV merely charges a respondent with being unable to produce identification (that is, an identification document), the NOV must be dismissed for failing to state a prima facie case. '" (Def. 's 56.1 Resp. ~ 24 (quoting Dewan Decl. 12 ~ 5)).
Plaintiff lives in New Jersey, approximately two hours away from New York City, and he claims that he would like to travel to the City more often to photograph trains. (PI.'s 56.1 Stmnt ~~ 26, 28). He contends that since the incident on August 21, 2010, he has been reluctant to travel to New York to photograph trains, and has only done so once at the end of January 2012. (Id. ~~ 27,28). Plaintiff travels to the City every few months for other purposes, and although he
"Citations to "Def. 's Ex. B" refer to the Notice of Violation. 12Citations to "Dewan DecI." refer to the Declaration of Debra Siedman Dewan, dated July 20,2012 and attached to the Copertino Decl. II as defendant's Ex. C.
7

now he carries his driver's license whenever he uses the Transit system (id. "29,30), he claims that he wants to be able to leave his license in the car. (Id.' 28).
The TA challenges the accuracy of Barry's claim that the incident has impeded his ability to photograph trains, noting that Barry testified that after being stopped in San Diego for taking photographs of the streetcar system, he was not deterred. (Def.'s 56.1 Resp. '27). According to defendant, when Barry was approached by Officer Dutes, he stated: "'okay, here we go again.'" (Id. (citing Barry Dep. at 53)). Defendant further denies that Barry suffered any actual injury from the incident and it denies that Barry is restricted in any way from either traveling to New York City or leaving his license in the car. (Id." 27,28).
In the last ten years, 6,542 summons have been issued to people who fail to provide identification under the ID Rule. (PI.' s 56.1 Stmnt, 31; PI.'sEx. K13). Plaintiff asserts that the TA had no written policies, procedures or directives in effect as of August 21, 2010 that would describe when a NYPD officer may require a person to produce identification documents or ask a person to identify themselves orally. (Id." 32,33).
The TA denies this claim and states that the TAB has Senior Hearing Officers who sit on the appeals of TAB Notices of Decision and who provide legal advice to hearing officers in their day-to-day conduct of hearings. (Def.'s 56.l Resp. , 32). According to defendant, these Senior Hearing Officers are familiar with the Rules of Conduct, 21 N.Y.C.R.R. § 1050, and with the TAB interpretation of these Rules. (Dewan Deci. , 3). Defendant claims that every hearing officer is instructed that "no person on or in any facility or conveyance ofNYCTA is required to
13Citations to "PI.'s Ex. K" refer to the Transit Adjudication Bureau: 1050-6D3 Cases from 2002 to Present, By Year.
8

carry identification documents." ilil ~ 5; Def.'s 56.1 Resp. ~ 32). The TA claims that in order
for a violation based on the failure to provide identification to be sustained, there must be facts
that establish that the police officer had a lawful basis to request identification and "the
respondent refused to comply, verbally gave false information, or provided false documents."14
(Dewan Decl. ~ 8; Def.'s 56.1 Resp. ~ 32). According to the TA, '''Hearing officers are
instructed that if a respondent credibly testifies that he or she verbally provided all the
information to the police officer on request but did not have any documentation to verify it, the
NOV must be dismissed for the reason that no person is required to carry identification.",15
(Dewan Decl. ~ 7; Def.'s 56.1 Resp. ~ 32).
Defendant also disputes plaintiffs claim that the officers are trained that the ID Rule
leaves it up to the discretion of the officer to decide what documents the officer can demand
(Pl.' s 56.1 Stmnt ~ 36), and instead claims that officers are trained to ask for driver's license,
passport, immigration card, New York State identification cards, and to beware of certain
14The conduct for which Officer Dutes issued an NOV to Mr. Barry does not appear to fit into any of these categories. First, although defendant claims that Mr. Barry provided his name "only after Officer Dutes requested identification three times" (De£ 's 56.1 Resp. ~ 12), it is undisputed that plaintiff eventually complied with the officer's request for identification. Second, as discussed supra n.l 0, the record does not show that the NOV was based on an allegation that Mr. Barry verbally gave false information. Finally, the TA has not alleged that Mr. Barry provided false documents. Thus, although defendant argues that the TAB's interpretation of the ID Rule guides the enforcement of the ID Rule, it is obvious from the testimony of the officers involved in this case, and from the NOV issued to Mr. Barry itself, that the officers did not understand this limiting interpretation. (See also discussion infra II.B.2). Further, considering the lack of written clarification or public guidelines, the TAB's interpretation of the ID Rule also fails to provide notice to the public as to what conduct is prohibited. (See id.)
15This after-the-fact limitation on the ID Rule does not appear to be memorialized in any written directive or other materials provided to the officers assigned to enforce the ID Rule.
9

common types of false identifications. (Def.'s 56.1 Resp. ~ 36). Plaintiff, however, notes that the four officers who were deposed responded in different ways when asked to interpret the ID Rule, and that three of them did not understand the phrase in the ID Rule that reads: "otherwise in accordance with the law." (PI. 's 56.1 Stmnt ~~ 38-53).
Plaintiff moves for summary judgment, claiming that, on the undisputed facts, the TA's ID Rule is unconstitutionally vague and burdens the freedom of movement without identification documents. (PI.'s SJ Mem.16 at 8). The TA cross-moves to dismiss the plaintiffs Complaint on the grounds that, because Barry lacks standing to seek a declaratory judgment under 28 U.S.C. § 2201, the Court lacks jurisdiction to entertain his claim and the Complaint is subject to dismissal under Fed. R. Civ. P. 12(b)(I) and (6). In the alternative, defendant argues that even if there was jurisdiction to consider the claims, the Court should exercise its discretion and decline to grant the requested declaratory relief.
DISCUSSION 1. Defendant's Motion to Dismiss
Although the parties have filed cross motions, the Court first considers defendant's motion to dismiss because it raises a question of subject matter jurisdiction, without which the Court may not proceed to consider the merits of plaintiff s claim. Defendant argues that plaintiff lacks standing to seek a declaratory judgment pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201. (Def.'s Mem. at 1-2).
16Citations to "PI.' s SJ Mem." refer to Plaintiff Ernest Steve Barry's Memorandum of Law in Support of Motion for Summary Judgment, dated July 23,2012.
10

A. Legal Standard In a motion to dismiss for lack of subject matter jurisdiction, the party invoking federal
jurisdiction has the burden of proving the Court's jurisdiction by a preponderance of the evidence. Luckett v. Bure, 290 F.3d 483, 497 (2d Cir. 2002) (citing Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)). Moreover "the court must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of plaintiff." Natural Res. Def. Council v. Johnson, 461 F.3d 164, 171 (2d Cir. 2006) (citing Sweet v. Sheahan, 235 F.3d 80,83 (2d Cir. 2000)).
Both parties rely on documents outside of the pleadings in stating their positions on the motion to dismiss. Federal Rule of Civil Procedure 12(d) provides that "[i]f, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. However, the Court is not required to convert the motion for judgment on the pleadings to a motion for summary judgment in this case, "because the moving defendants move against these claims on the basis of lack of subject matter jurisdiction and the Court can therefore look beyond the pleadings even without conversion." Goodwin v. Solil Mgmt. LLC, No. 10 CV 5546, 2012 WL 1883473, *4 (S.D.N.Y. May 22,2012) (citing Building & Const. Trades Council of Buffalo. New York & Vicinity v. Downtown Dev.. Inc., 448 F.3d 138, 150 (2d Cir. 2006)); see also Luckett v. Bure, 290 F.3d at 496-97.
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B. Case or Controversy Where no "case" or "controversy" exists between litigating parties, courts lack subject
matter jurisdiction and may not adjudicate the case. Marcavage v. City of New York, 689 F.3d 98, 103 (2d Cir. 2012) (stating that "Article III limits the subject matter jurisdiction of federal courts to actual 'cases' or 'controversies"'). The Declaratory Judgment Act (the "Act") provides that, "[i]n a case of actual controversy within its jurisdiction...any court of the United States.. .may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought." 28 U.S.C. § 2201(a). In the context of the Act, the phrase "case of actual controversy...refers to the type of 'Cases' and 'Controversies' that are justiciable under Article III." Medlmmune. Inc. v. Genentech. Inc., 549 U.S. 118, 128 (2007) (citing Aetna Life Ins. Co. v. Haworth, 300 U.S. 227,240 (1937)). In order for a court to exercise jurisdiction, the facts alleged in a case must "show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." Id. at 127 (quoting Maryland Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270,273 (1941) (holding that declaratory relief was available to an insurance company that alleged it was not liable to defend or indemnify an insured)).
Defendant argues that this Court lacks jurisdiction over plaintiff's claims because no "live dispute" currently exists. (Def.'s Mem. at 6). Defendant claims that the parties agree about how the ID Rule should be interpreted, and that, therefore, "there is no controversy." (Id. at 7). According to defendant, "the TA's longstanding interpretation of the ID Rule is that that rule does not require any customer to carry identification in the transit system... , Thus, on the precise interpretive question to which Mr. Barry would like an answer. ..there is no controversy
12

for this Court to decide and the case must be dismissed." (Id. (citing GTE Sylvania. Inc. v. Consumers Union of the United States. Inc., 445 U.S. 375, 383 (1980))). Defendant characterizes plaintiff's stake in this case as "merely an 'intellectual or academic curiosity' in the outcome." (Def.'s Mem. at 8-9).
In response, plaintiff claims that, "[a] lthough the [TA] insists that it has never interpreted the ID Rule to require transit users to carry identification documents, the issue is not its litigation interpretation of the ID Rule but the enforcement." (PI.' s Mem. 17 at 10). Plaintiff contends that, in practice, the ID Rule requires transit users to carry identification "because without such documents they can be handcuffed, detained, searched, and issued a notice of violation." (Id.) Barry contends that, since the parties presumably disagree about "whether such a de facto requirement is unconstitutional, an actual controversy exists." (Id. at 13).
The parties clearly disagree about the obligations created by the ID Rule and about whether the ID Rule is constitutional. The TA contends that the ID Rule is constitutional and seeks to uphold the ID Rule whereas Mr. Barry seeks to have the Court invalidate the ID Rule. The parties certainly do not "desire precisely the same result." GTE Sylvania. Inc. v. Consumers Union of the United States. Inc., 445 U.S. at 383 (citing Moore v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 47, 48 (1971) (finding no "case or controversy" where both parties to the suit had argued that the statute was constitutional and urged that a desegregation order be set aside)).
Finally, the present controversy is of sufficient immediacy and reality to justify the Court's exercise ofjurisdiction. A plaintiff need not expose himself to liability before bringing
17Citations to "PI.'s Mem." refer to Plaintiff Emest Steve Barry's Memorandum of Law in Opposition to Motion to Dismiss the Complaint, dated September 10,2012.
13

suit to challenge the basis of threatened action by the government. In other words, "[t]he plaintiffs own action (or inaction) in failing to violate the law eliminates the imminent threat of prosecution, but nonetheless does not eliminate Article III jurisdiction." Medlmmune. Inc. v. Genentech. Inc., 549 U.S. at 128-29. '''[T]he declaratory judgment procedure is an alternative to pursuit of the arguably illegal activity....' The dilemma posed by that coercion - putting the challenger to the choice between abandoning his rights or risking prosecution - is' a dilemma that it was the very purpose of the Declaratory Judgment Act to ameliorate.'" Id. at 129 (quoting Steffel v. Thompson, 415 U.S. 452, 459 (1974) and Abbott Laboratories v. Gardner. 387 U.S. 136, 152 (1967)).
Accordingly, the Court finds that there exists an actual controversy between the parties sufficient to establish jurisdiction.
C. Standing The plaintiff has the burden of establishing that he has standing to pursue his claims. See
Marcavage v. City ofNew York, 689 F.3d at 103 (citing Raines v. Byrd, 521 U.S. 811 (1997)); see also Lujan v. Defenders of Wildlife, 504 U.S. 555,561 (1992). In order to seek damages or "retrospective" relief, a plaintiff must show: 1) that he "suffered an injury in fact that is concrete and not conjectural or hypothetical;" 2) that "the injury is fairly traceable to the actions of the defendant;" and 3) that "the injury will be redressed by a favorable decision." Marcavage v. City of New York, 689 F.3d at 103 (citing Lujan v. Defenders, 504 U.S. at 560-61) (finding that plaintiffs had standing to seek damages where they claimed they had been arrested for protesting during the 2004 Republican National Convention ("RNC") in an area where demonstrating was
14

prohibited). Where a plaintiff seeks equitable or "prospective" relief, he must show an additional element: "a sufficient likelihood that he will again be wronged in a similar way." City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983). "That is, a plaintiff must demonstrate a 'certainly impending' future injury." Marcavage v. City ofNew York, 689 F.3d at 103 (citing Whitmore v. Arkansas, 495 U.S. 149, 158 (1990)) (finding that where plaintiffs were arrested for protesting at the RNC, plaintiffs did not have standing to seek equitable relief because no future national convention was scheduled to be held in New York and plaintiffs had not shown that similar policies would be enacted even if one were to be held).
Defendant claims that plaintiff has failed to demonstrate that his injury is "fairly traceable to the actions of the [TA]."18 (Def.'s Mem. at 10). According to defendant, "the TA did not question Mr. Barry at the Broad Channel subway station; the TA did not detain him, frisk him, handcuff him, or issue him any NOV. Former defendant Dutes (employed by former defendant City of New York) did those things." (Id.) The TA argues that all the TA is alleged to have done is: "(i) to have the ID Rule as one of its rules of conduct (a rule whose mere existence per se is not alleged to have caused any damage to Mr. Barry for which compensatory damages would be appropriate), and (ii) to dismiss (essentially immediately) a Notice of Violation of the ID Rule that the Police had given to Mr. Barry." (Id.)
Defendant also claims that plaintiff has failed to demonstrate a certainly impending future
18The section of defendant's memorandum of law in which this argument appears is titled "No Compensatory Damages are Awardable to Mr. Barry" and is specifically focused on whether or not compensatory damages should be available in this case. (Def. 's Mem. at 10). However, since one element of standing requires Mr. Barry to establish a causal connection between the conduct of the TA and Mr. Barry's injuries, the Court considers defendant's argument as part of its challenge to Mr. Barry's standing to bring this lawsuit.
15

Injury. (Id. at 8). According to the TA, "[b]y the time this action was commenced,...Mr. Barry's... dispute with...the.. .ID Rule...had long ended, and there.. .is no likely chance of repetition." (Id. at 2). The TA contends that Barry's "dispute...may be said to have begun on August 21,2010, when NYPD Officer Dutes...gave Mr. Barry...[an] NOV assert[ing] a violation of the ID Rule" (id.), but it ended once the NOV was dismissed by the TAB for failing
to "state a reason for [the police officer's] request [for identification]." ilil at 4-5). Defendant
claims that Mr. Barry "has not shown or even alleged any likelihood that his rights will be violated by the TA in the future...through the existence of the TA's ID Rule." (Id.) According to defendant's characterization of Mr. Barry's pleadings, the Complaint does not allege that Mr. Barry has had "any problem involving the enforcement of any TA rule of conduct since 2010," but instead "merely alleges that Mr. Barry has 'not returned to New York to take photographs;' ...' [is] apprehensive about encountering the police when taking pictures of trains in other urban areas;' and now 'carries his driver's license with him everywhere.'" (Id. at 5 (emphasis in the original)).
Plaintiff contends that his injury is fairly traceable to the TA "as the entity that wrote and promulgated the unconstitutional policy that caused damage to Mr. Barry.... [E]ntities can be held liable for harm caused by the enforcement of [their] unconstitutional policies." (Pl. 's Mem. at 1). Plaintiff further claims that he has alleged a certainly impending future injury sufficient to establish jurisdiction. (Id. at 13-15). Although Mr. Barry's August 21, 2010 encounter with Officer Dutes "is long over[,]...Mr. Barry's declaratory judgment claim arises not from his past encounter with Officer Dutes but from the fact that Mr. Barry is subject to the de facto requirement to carry identification documents every time he uses the [TA] system," or run the
16

risk of arrest. (Pl.'s Mem. at 14). Plaintiff claims that he lives only two hours away from New York City and that he has "credible plans to use the New York City [TA] system again in the future on a consistent basis and [a] credible desire to take photography trips to the [TA] system without carrying identification documents." (Id.; Barry Decl. ~ 3). Specifically, Mr. Barry contends that he travels into New York City "every few months and use[s] the [TA] subway" and that he intends to continue to do so. (Barry Decl. ~ 11). Mr. Barry further states that he now carries his driver's license when he will be using the TA system, but that he "would like to travel to New York City more often on trips to photograph the trains, and .. .leave [his] driver's license behind in the car...." (Id. ~~ 10-11).
The Court finds that plaintiff Barry has satisfied his burden to establish standing to pursue both monetary damages and equitable relief because he has shown by a preponderance of the evidence that: 1) he suffered an injury in fact that is concrete and not conjectural or hypothetical; 2) the injury is fairly traceable to the actions of the defendant; 3) the injury will be redressed by a favorable decision; and 4) there is a sufficient likelihood that he will again be wronged in a similar way.
First, there is no genuine dispute that the ID Rule has been enforced against Mr. Barry in the past. (Compl. ~~ 18-20). Although the NOV was dismissed, Mr. Barry was issued a NOV under the ID Rule and he had to contest the NOV to avoid being subject to civil penalties.
Second, the alleged injury is fairly traceable to the TA as the body "responsible for writing and promulgating" the ID Rule. (Compl. ~ 47). It is well established that a claim that "[a] municipal policy or ordinance is itself unconstitutional is always sufficient to establish the necessary causal connection between the municipality and the constitutional deprivation, because
17

an employee's act of enforcing an unconstitutional municipal policy may be considered the act of the municipality itself." Amnesty Am. v. Town ofW. Hartford, 361 F.3d 113, 125 (2d Cir. 2004) (citing Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978». Although the TA is not a municipality and the NYPD officers are not employees of the TA, NYPD officers are expressly authorized to enforce the ID Rule. N.Y. Compo Codes R. & Regs. Tit. 21, § 1050.12 (empowering "[a]ny New York City police officer...to issue a notice of violation of any of [the TA rules of Conduct]). The TA may not distance itself from its own rule by implying that the NYPD officers explicitly tasked with enforcing the ID Rule are "an unknown third-party." (Def.'s Mem. at 11).
Third, a decision in Mr. Barry's favor would clearly redress his injury and prevent future injury. Where the plaintiff is "himself an object of the action...at issue[,]...there is ordinarily little question...that a judgment preventing or requiring the action will redress it." Lujan v. Defenders of Wildlife, 504 U.S. at 561-62. Here, if the Court were to find that the ID Rule is unconstitutional, Mr. Barry would no longer face the threat of future enforcement of the ID Rule or be subject to the obligations it creates.
Finally, by introducing plausible and uncontroverted evidence that he intends to continue to use the TA system, thereby potentially subjecting himself to the allegedly unconstitutional ID Rule (Barry Decl. ~~ 10-11), plaintiff has demonstrated a sufficient likelihood of future injury to seek a declaratory judgment. Although '''some day' intentions - without any description of concrete plans - do not support a finding of 'actual or imminent' injury, Lujan v. Defenders of Wildlife, 504 U.S. at 563, plaintiffs sworn affidavit avers that he has continued to travel to New York City since the incident in 2010, and he uses the TA system every few months. Defendant
18

does not contest that Mr. Barry has continued to use the TA system, but only that he is unlikely to be prosecuted under the ID Rule in the future. There is no requirement, however, that plaintiff violate the law again for the Court to exercise jurisdiction over his claims. See MedImmune. Inc. v. Genentech. Inc., 549 U.S. at 129. "In short, [p]laintiffhas established that [he] wishes to exercise [his] purported [constitutional right] ..., that [his] attempts to do so have been frustrated in the past, and that [his] attempts will continue to be frustrated in the future absent judicial relief." New York Civil Liberties Union v. New York City Transit Auth., 675 F. Supp. 2d 411, 427 (S.D.N.Y. 2009), affd, 684 F.3d 286 (2d Cir. 2012).
D. Discretion under the Declaratory Judgment Act Defendant takes the position that, even if the Court finds that Mr. Barry has standing in
this case, "the Court may nevertheless exercise its 'substantial discretion' under the Declaratory Judgment Act to, and should, dismiss the prayer for declaratory judgment, essentially for prudential reasons." (Def.'s Mem. at 9 (citing Wilton v. Seven Falls Co., 515 U.S. 277, 282, 286 (1995); Nordlinger v. Hahn, 505 U.S. 1, 12-13 (1992); Dow Jones Co. v. Harrods, 237 F. Supp. 2d 394, 431 (S.D.N. Y. 2002), affd, 346 F.3d 357 (2d Cir. 2003))). Defendant claims that, in the "highly unlikely" situation that plaintiffs dispute were to reoccur, "it would presumably do so under a new set of facts and in a new context." (Id.) Defendant further contends that "even if [Barry's claim were] somehow theoretically justiciable today[, it] is as a practical matter unripe, and for prudential reasons...this Court should not entertain it." (Id. at 9-10).
In response, plaintiff argues that the TA "misunderstands the basis of [Barry's] declaratory judgment claim, which is based on the ID Rule's current impact on Mr. Barry
19

whenever he uses the [TA] system." (Pl.'s Mem. at 15). According to plaintiff, the "current and ongoing impact" of the ID Rule makes the dispute ripe for adjudication. (ld.)
"The Declaratory Judgment Act provides that a court 'may declare the rights and other legal relations of any interested party,' 28 U.S.C. § 2201(a), not that it must do so. This text has long been understood 'to confer on federal courts unique and substantial discretion in deciding whether to declare the rights of litigants.'" Medlmmune, Inc. v. Genentech, Inc., 549 U.S. at 136 (emphasis in the original) (citing Wilton v. Seven Falls Co., 515 U.S. at 286). The Court finds that awaiting further prosecution of Mr. Barry under the ID Rule would not assist the Court in adjudicating Mr. Barry's claims of a constitutional violation. Thus, the Court declines to exercise its discretion to dismiss Barry's prayer for declaratory judgment.
Accordingly, the Court finds that plaintiff Barry has standing to pursue both prospective and retrospective relief, and the Court proceeds to address the merits of the plaintiffs summary judgment motion.
II. Motion for Summary Judgment A. Legal Standard
It is well-settled that a party moving for summary jUdgment has the burden of establishing that no genuine issue of material fact is in dispute and that the moving party is entitled to judgment as a matter oflaw. See Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242,256 (1986); Thompson v. Giivoje, 896 F.2d 716, 720 (2d Cir. 1990). Since summary judgment is an extreme remedy, cutting off the rights of the non-moving party to present a case to the jury, see Egelston v. State Univ. ColI. at Geneseo, 535 F.2d 752, 754 (2d Cir. 1976);
20

Gibralter v. City of New York, 612 F. Supp. 125, 133-34 (E.D.N.Y. 1985) (stating that "[s]ummary judgment is a drastic remedy and should be applied sparingly"), the Court should not grant summary judgment unless "it is quite clear what the truth is [and] that no genuine issue remains for tria1." Auletta v. Tully, 576 F. Supp. 191, 195 (N.D.N.Y. 1983) (internal quotation marks and citations omitted), affd, 732 F.2d 142 (2d Cir. 1984). In addition, "'the inferences to be drawn from the underlying facts ... must be viewed in the light most favorable to the party opposing the motion.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see also Richardson v. New York State Dep't ofCorr. Serv., 180 F.3d 426,436 (2d Cir. 1999) (stating that "[w]hen considering a motion for summary judgment the court must draw all factual inferences and resolve all ambiguities in favor of the nonmoving party"), abrogated on other grounds by Kessler v. Westchester County Dept. of Soc. Servs., 461 F.3d 199 (2d Cir. 2006).
Once the moving party discharges its burden of proof under Rule 56(c), the party opposing summary judgment "has the burden of coming forward with 'specific facts showing that there is a genuine issue for tria1.'" Phillips v. Kidder, Peabody & Co., 782 F. Supp. 854, 858 (S.D.N.Y. 1991) (quoting Fed. R. Civ. P. 56(e)). Rule 56(e) "provides that a party opposing a properly supported motion for summary judgment may not rest upon mere allegation or denials ' of his pleading." Anderson v. Liberty Lobby, Inc., 477 U.S. at 248. Indeed, "the mere existence of some alleged factual dispute between the parties" alone will not defeat a properly supported motion for summary judgment. Id. at 247-48 (emphasis in original). Rather, enough evidence must favor the non-moving party's case such that a jury could return a verdict in its favor. Id. at 248 (internal citation omitted).
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B. Void-for-Vagueness Challenge Plaintiff argues that summary judgment is appropriate because, on its face, the TA's ID
Rule is unconstitutionally vague. (Pl.'s SJ Mem. at 9-15). The ID Rule provides, in relevant part, that:
All persons on or in any facility or conveyance of the authority shall: provide accurate, complete and true information or documents requested by New York City police officers or authority personnel acting within the scope of their employment and otherwise in accordance with law. 21 N.Y.C.R.R. § 1050.6(d)(3). 1. Legal Standard '''As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.'" United States v. Morrison, 686 F.3d 94, 103 (2d Cir. 2012) (quoting Kolender v. Lawson, 461 U.S. 352,357 (1983)), cert. denied, 133 S. Ct. 955 (2013). A court may invalidate a criminal law if it fails to fulfill either of these requirements, City of Chicago v. Morales, 527 U.S. 41, 56 (1999), but the more important aspect ofthe vagueness doctrine is "the requirement that a legislature establish minimal guidelines to govern law enforcement." Kolender v. Lawson, 461 U.S. at 358 (quoting Smith v. Goguen, 415 U.S. 566,574 (1974)). In Kolender v. Lawson, 461 U.S. 352, the Supreme Court struck down a California statute that required persons who loiter or wander on the streets to provide "credible and reliable" identification and to account for their presence when stopped by an officer pursuant to the reasonable suspicion standards ofTeny v. Ohio, 392 U.S. 1 (1968). Under the statute, an
22

individual who failed to provide "credible and reliable" identification could be arrested.
Kolender v. Lawson, 461 U.S. at 356. In examining the California statute at issue in Kolender, the Supreme Court concluded that the statute as drafted and as construed by the state COurtS19
"contains no standard for determining what a suspect has to do in order to satisfy the requirement
to provide a 'credible and reliable' identification." Id. Instead, the Court found that the statute
"vests virtually complete discretion in the hands of the police" and therefore had the "'potential
for arbitrarily suppressing First Amendment liberties....'" Id. (citing Shuttlesworth v. City of
Birmingham, 382 U.S. 87,91 (1965)).
In City of Chicago v. Morales, the Supreme Court invalidated a loitering ordinance,
which required a police officer, on observing a person whom he reasonably believed to be a
criminal street gang member loitering in any public place with one or more other persons, to
order all such persons to disperse; the ordinance made failure to obey such an order a criminal
offense. 527 U.S. at 65. In finding the ordinance unconstitutionally vague, the Court held that
the ordinance "afford[ed] too much discretion to the police and too little notice to citizens who
wish to use the public streets." Id. at 64. Specifically, the Court found that "the vagueness that
dooms this ordinance is not the product of uncertainty about the normal meaning of 'loitering,'
but rather about what loitering is covered by the ordinance and what is not." Id. at 57. The lack
l'Noting that a federal court evaluating a facial challenge to a state law should "consider any limiting construction that a state court or enforcement agency has proffered," id. at 355 (quoting Village of Hoffman Estates v. Flipside. Hoffman Estates, 455 U.S. 489, 494 (1982)), the Kolender Court cited the fact that the California Court of Appeals had construed the statute at issue as requiring "identification 'carrying reasonable assurance that the identification is authentic and providing means for later getting in touch with the person who has identified himself.'" Id. at 356 (quoting People v. Solomon, 33 Cal. App. 3d 429, 108 Cal. Rptr. 867 (1973))). Even with that limiting construction, the Supreme Court found the statute unconstitutionally vague.
23

of guidelines to govern enforcement served as an independent basis for the Court in Morales to invalidate the ordinance; with respect to this rationale, the Supreme Court held that the ordinance "necessarily entrust[ed] lawmaking to the moment-to-moment judgment of the policeman on his beat," because police officers had "absolute discretion to decide what activities constitute loitering." Id. at 60-61.
By contrast, the Supreme Court recently upheld Nevada's "stop and identify" statute as constitutional. The statute, which provided that any person detained by a peace officer was required to identify himself, had been interpreted by the Nevada Supreme Court to require only that a suspect disclose his name, and not a driver's license or any other document. Hiibel v. Sixth Judicial Dist. Court of Nevada. Humboldt County, 542 U.S. 177, 185 (2004). Thus, even though the petitioner in Hiibel did not allege that the statute at issue was unconstitutionally vague, the Supreme Court explicitly noted that the Nevada statute was "narrower and more precise" than the law at issue in Kolender. Id. at 184.
Plaintiff contends that the TA's ID Rule is not meaningfully distinguishable from the law invalidated in Kolender. (Pl.'s SJ Mem. at 9). According to plaintiff, like the law at issue in Kolender, the TA's Rule here: 1) has criminal applications; 2) fails to provide explicit standards of enforcement, encouraging arbitrary enforcement; and 3) reaches a substantial amount of constitutionally protected conduct. (Id. at 10).
With respect to the ID Rule's criminal applications, plaintiff argues that a violation of the ID Rule may subject a person to criminal prosecution resulting in a fine or imprisonment or both. (Id. at 14). According to plaintiff, the fact that a violation of the ID Rule can also lead to civil penalties is immaterial, because "a law with civil and criminal applications must 'possess a
24

degree of certainty required for criminal laws.'" (Id. at 14-15 (citing H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 255 (1989) (Scalia, J., concurring))).
Plaintiff also argues that the ID Rule fails to provide explicit standards of enforcement, encouraging arbitrary enforcement. Plaintiff contends that the ID Rule does not define what "accurate, complete and true information or documents" an NYPD officer may demand from a Transit user and what response adequately complies with a demand for identification. (Id. at 8). Nor are there any limiting guidelines of the ID Rule to help guide enforcement. (Id. at n.6). Instead, according to plaintiff, NYPD officers are told during training that the ID Rule "leaves 'up to the officer's discretion' the identification information and documents that they can demand. '" (Id. at 11). Plaintiff contends that NYPD officers may, under the language of the ID Rule, demand a wide range of information and documents and may place a person under arrest if the officer feels that any of the requested identification is not "accurate, complete and true." (Id. at 11-12). In short, plaintiff argues that the ID Rule fails to provide even minimal guidelines for enforcement and vests virtually unlimited discretion in NYPD officers. (Id. at 11-12).
Third, plaintiff argues that the ID Rule reaches a substantial amount of constitutionally protected conduct. Plaintiff compares the ID Rule at issue here with the law in Kolender, claiming that the two laws have "the same 'potential for arbitrarily suppressing First Amendment liberties,' by allowing the police officer to decide who will be punished for violating the [ID Rule] and who will not." (Id. at 13 (citing Kolender v. Lawson, 461 U.S. at 358)). According to plaintiff, the ID Rule also "burdens the constitutional right to freedom of movement" to the same extent as the law in Kolender because it permits officers to demand identification information and documents from people lingering or walking in a public space where they have the right to
25

linger and walk. ad. at 14). While defendant concedes that the ID Rule "may theoretically be enforced either through
the criminal court or, as here, via a civil administrative proceeding," defendant TA contends that the overwhelming majority of infractions of TA rules are enforced through civil adjudication. (Def.'s SJ Mem.20 at 2). Defendant also disputes plaintiffs claims that the ID Rule vests unlimited enforcement discretion in NYPD officers, arguing that the ID Rule's requirement that the individuals who issue the NOV must be "acting within the scope of their employment and otherwise in accordance with law" limits enforcement discretion. (Id. at 7). Defendant claims that enforcement discretion is further limited because TAB Senior Hearing Officers require ID Rule NOVs "to state a lawful basis for the request for LD. information." (Id.) Moreover, defendant claims that the ID Rule is generally only enforced "in conjunction with some other [TA Rule] infraction." (Id.) Defendant notes that Mr. Barry was handcuffed and detained "due to his own criminal conduct of being in an unauthorized area," not due to his violation of the ID Rule. (Id. at 8-9). Defendant also argues that the ID Rule is distinguishable from the law at issue in Kolender. According to defendant, Kolender was a First Amendment case, while the instant case is not, because "Kolender was interpreting a statute that had a constitutionally infirm loitering component." (Id. at 5).
2°Citations to "Def.'s SJ Mem." refer to Defendant Transit Authority's Memorandum of Law in Opposition to Plaintiff Emest Barry's Motion for Summary Judgment, dated September 10,2012.
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2. Analysis The ID Rule undisputably defines a criminal offense. The TA promulgates "Rules of Conduct" (the "Rules"), which are set forth in New York's Official Compilation of Codes, Rules, and Regulations. See N.Y. Compo Codes R. & Regs. Tit. 21, § 1050 et seq. Officers of the Transit Bureau of the NYPD are authorized to enforce the Rules, but "[a]ny New York City police officer...shall be empowered to issue a notice of violation of any of [the rules of Conduct"]. Id. § 1050.12. Persons committing violations of the Rules, which were designed to promote safety and protect passengers and TA facilities, id. § 1050.1(b), may be prosecuted through summonses returnable to New York Criminal Court or NOVs returnable to hearings before the TAB. Id. § 1050.10; N.Y. Pub. Auth. L. § 1204(5-a). See N.Y. Civil Liberties Union V. N.Y.C. Transit Auth., 675 F. Supp. 2d at 414-15. If convicted of a violation of the ID Rule pursuant to a criminal prosecution in Criminal Court, a person faces potential penalties which include a fine of not more than $25 or a term of imprisonment for not more than 10 days, or both. N.Y. Pub. Auth. L. § 1204(5-a)(a). Individuals processed through the TAB face potential civil penalties of no more than $100 per violation. Id. § 1204(5-a)(b). Defendant's contention that the ID Rule is usually enforced through civil proceedings is unpersuasive and does not save it from an attack based on vagueness. A law with criminal applications "must, even in its civil applications, possess the degree of certainty required for criminal laws." H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. at 255 (citing Federal Commc'ns Comm'n V. American Broad. Co., 347 U.S. 284,296, (1954)). There cannot be one construction for civil enforcement of the ID Rule and another for its criminal enforcement. See Federal Commc'ns Comm'n V. American Broad. Co., 347 U.S. at 296.
27

Defendant's argument that ID Rule NOVs must state a lawful basis for the request for
identification is also unavailing. The Court in Kolender assumed that any stop made pursuant to
the law at issue was legally justified and nonetheless held that the law was unconstitutionally
vague. The legality of an initial stop does not immunize the ID Rule from scrutiny under a voidfor-vagueness claim.21 Similarly, defendant's claim that ID Rule NOVs are generally issued in
conjunction with other infractions does little to save the ID Rule from a vagueness challenge. If
in fact ID Rule NOVs are issued only when another TA Rule is violated, this would serve to
reduce the frequency with which ID Rule NOVs are issued, but it does not provide notice as to
what conduct is prohibited by the ID Rule, nor does it provide guidance to those officers tasked
with enforcing the ID Rule so as to prevent arbitrary and discriminatory enforcement.
Next, the Court finds that the ID Rule does not provide "sufficient definiteness that
ordinary people can understand what conduct is prohibited and in a manner that does not
encourage arbitrary and discriminatory enforcement." United States v. Morrison, 686 F.3d at
103. The ID Rule provides that "[a]ll persons on or in any facility or conveyance of the authority
shall: provide accurate, complete and true information or documents requested by New York
City police officers or authority personnel acting within the scope of their employment and
21Throughout much ofthis litigation, plaintiff has claimed that he was standing on the platform, rather than on the steps leading down to the train tracks, when Officer Dutes approached him. (See Docket # 32). For the purposes of the instant motions, plaintiff does not expressly concede or dispute this factual issue, but instead contends that it is immaterial to the question of whether the ID Rule is unconstitutional. (Plaintiff Emest Steve Barry's Reply Memorandum of Law in Support of Motion for Summary Judgment, filed September 24,2012 at 3-5). The Court finds that, even assuming, as in Kolender, that Mr. Barry was initially detained lawfully because he was observed in an "unauthorized area" (Def.'s S.J. Mem. at 8-9), the ID Rule remains unconstitutionally vague in its failure to defme what conduct is prohibited. (See discussion infra at 27-28).
28

otherwise in accordance with law." 21 N.Y.C.R.R. § 1050.6(d)(3). Although defendant claims that TAB hearing officers are instructed about how to enforce the ID Rule (Def.'s 56.1 Resp. ~~ 32-33), there is no dispute that the TA has not promulgated any public guidelines or written clarification of the ID Rule. (Tr. at 41). Further, whereas the law at issue in Kolender had been interpreted by the California Court of Appeals, here defendant has not proffered any written decisions of the TAB, and the Court has not uncovered any relevant case law interpreting or further defining the parameters of the ID Rule. There is no publically available or authoritative guidance as to what identification documentation or information may be requested by police officers pursuant to the ID Rule. Indeed, the ID Rule does not even limit the information or documents that may be requested by an officer to "identification" information or documents. Theoretically, the ID Rule as written would authorize an officer to ask someone for his bank records or demand that a person reveal his or her age or weight. As such, the ID Rule is less precise than the law found to be unconstitutionally vague in Kolender. Even drawing all inferences in the light most favorable to defendant, the ID Rule does not provide sufficient notice as to what conduct is prohibited, because it does not specify with any precision what is meant by "information or documents" that are "accurate, complete and true."
As an independent basis for finding that the ID Rule is unconstitutionally vague, the language of the ID Rule encourages arbitrary and discriminatory enforcement. Indeed, as plaintiff notes, the four officers who witnessed the incident with Barry gave conflicting testimony as to their understanding of the ID Rule's language. Officer Dutes testified that the ID Rule authorizes him to demand a verbal statement of name or age and allows him to demand production of a driver's license, passport, immigration card or other identification. (Dutes Dep.
29

at 71, 73-74). Officer Balkaran stated that he was authorized by the ID Rule to demand "'just regular ID,'" which included a demand for "photo identification." (Balkaran Dep. at 74-75). Officer Joseph Brennan stated that the ID Rule leaves it to the "officer's discretion" as to what identification and documentation can be demanded (Brennan Dep. at 43), and Officer Lyndon Blakely testified that the ID Rule permits him to demand information '''that [the officer] could readily identify as being true' or 'official' identification documents such as a driver's license or passport." (Blakely Dep. at 61).
Further, when asked the meaning of the phrase in the ID Rule "otherwise in accordance with law," Officers Dutes, Balkaran and Brennan all testified that they did not understand what the phrase meant. (Dutes Dep. at 77; Balkaran Dep. at 76; Brennan Dep. at 41). This testimony undermines defendant's contention that the ID Rule's requirement that officers issuing an NOV must act "within the scope of their employment and otherwise in accordance with the law" is not vague and somehow limits enforcement discretion. Even if this language were not vague, the ID Rule's requirement that officers act "within the scope of their employment and otherwise in accordance with the law" does not in any way modify or clarify the type of information or documents that can be requested under the ID Rule.
Based on the language of the ID Rule and the testimony of the NYPD Officers who served as witnesses in this case, the Court finds that the ID Rule suffers from the same lack of explicit standards as the law at issue in Kolender. This lack of standards vests unlimited discretion in the hands of the officers, leaving it up to the individual officer to determine what documents or information they can demand. Indeed, the ID Rule provides no guidance to the officers as to what constitutes "accurate, complete and true" information and documents.
30

Finally, on the basis of the Supreme Court's holding in Kolender, this Court finds that the ID Rule reaches a substantial amount of constitutionally protected conduct. There is no meaningful distinction between the conduct prohibited by the law at issue in Kolender (failing to provide "credible and reliable" identification) and the conduct prohibited by the ID Rule (failing to provide "accurate, complete and true information or documents"). Defendant's claim that the law at issue in Kolender is distinguishable because it implicated the First Amendment due to a "constitutionally infirm loitering component" is unavailing. (Def. 's SJ Mem. at 5). The Court in Kolender assumed that any stop made pursuant to the law at issue was legally justified, but it held that the statute at issue violated the Due Process Clause of the Fourteen Amendment "by failing to clarify what is contemplated by the requirement that a suspect provide a "credible and reliable" identification. Kolender v. Lawson, 461 U.S. 352. Indeed, the Court's analysis contains hardly any mention of the loitering component of the law at issue. Although plaintiff concedes that plaintiffs Complaint does not specifically allege that the ID Rule violates the First Amendment (Tr. at 30), implicit in plaintiffs argument is the same concern for arbitrary suppression of First Amendment rights that concerned the Supreme Court in Kolender.
In sum, the Court finds that the ID Rule is a criminal law that reaches a substantial amount of constitutionally protected conduct and vests almost unlimited discretion in the NYPD officers charged with enforcement of the ID Rule. Accordingly, the Court finds that the ID Rule is unconstitutionally vague on its face. 22
22Plaintiff seeks a declaratory judgment that the ID Rule is unconstitutional to the extent that it requires TA system users to carry identification. Having found that the ID Rule is voidfor-vagueness on its face, the Court does not need to reach the question of whether the ID Rule is also unconstitutional on this independent basis.
31

3. Availability ofa Facial Challenge Defendant argues that the Court may not entertain a facial challenge to the ID Rule, but instead must assess the law only as applied. (Def.'s SJ Mem. at 5-7). According to defendant, plaintiff s vagueness challenge should fail because plaintiff has not shown that the ID Rule is "impermissibly vague in all of its applications." (Id. at 7 (citing United States v. Rybicki, 354 F.3d 124 (2d Cir. 2003), cert. denied, 543 U.S. 809 (2004))). The Supreme Court has not developed a clear test as to when courts should entertain facial challenges. "There are few if any general, trans-substantive rules governing facial challenges; the availability of facial challenges varies on a doctrine-by-doctrine basis, in which different underlying constitutional values are protected in different ways by different kinds of substantive tests." Richard H. Fallon, Jr., As-Applied and Facial Challenges and Third-Party Standing, 113 Harv. L. Rev. 1321, 1327 (2000). As a general rule, vagueness challenges outside of the First Amendment context are viewed as applied. See United States v. Farhane, 634 F.3d 127, 138 (2d Cir.) (citing Chapman v. United States, 500 U.S. 453, 467 (1991)), cert. denied, Sabir v. United States, 132 S. Ct. 833 (2011). At least some facial vagueness challenges, however, may be brought outside the First Amendment context. See Farrell v. Burke, 449 F.3d 470, n.11 (2d Cir. 2006) (noting that the court in United States v. Rybicki, 354 F.3d 124, assessed the facial validity ofthe statute at issue even though no First Amendment Rights were implicated). "Among those cases in which consideration of facial challenges outside the First Amendment context is said to be possible, there is disagreement as to the nature of such review." United States v. Rybicki, 354 F.3d at 131 (citing United States v. Salerno, 481 U.S. 739 (1987), and City of Chicago v. Morales, 527 U.S.
32

41) (noting that the Supreme Court had not spoken clearly as to whether a facial challenge outside the First Amendment context requires a showing that a statute was impermissibly vague in all applications, or merely that the statute was 'permeated' with vagueness).
Defendant contends that, under the Second Circuit's holding in United States v. Rybicki, 354 F.3d 124, a facial challenge to a governmental rule or law may not be entertained unless the rule infringes on a First Amendment right. (Def.'s SJ Mem. at 5). If a statute or rule does not implicate First Amendment rights, then it may only be assessed for vagueness "as applied." United States v. Nadi, 996 F.2d 548, 550 (2d Cir.), cert. denied, 510 U.S. 933 (1993). Defendant argues that, here, the alleged constitutional challenge arises from the right to travel, which defendant contends is not a First Amendment right; "the right to travel. .. seems to arise from somewhere in or around the Constitution (or the common law), but not from the First Amendment." (Def.'s SJ Mem. at 5 (citing Attorney Gen. of N.Y. v. Soto-Lopez, 476 U.S. 898, 902 (1986)).
Plaintiff contends that a challenge to the constitutionality of the ID Rule on its face is appropriate for the same reason that the Supreme Court entertained a facial challenge to the law at issue in Kolender v. Lawson - that is, the law at issue reaches a "'substantial amount of constitutionally protected conduct.'" (Pl.'s SJ Mem. at 13 (quoting Kolender v. Lawson, 461 U.S. at 352 n.S (quoting Village of Hoffman Estates v. Flipside. Hoffman Estates, 455 U.S. at 494))).
Since the availability of facial challenges varies on a doctrine-by-doctrine basis, see Fallon, As-Applied and Facial Challenges, supra, at 1327, the Supreme Court's willingness to entertain a facial challenge in Kolender is particularly relevant. The ID Rule requires that people
33

using the TA system provide "accurate, complete and true information or documents" to NYPD
officers upon request, and the failure to comply may be met with criminal prosecution. (N.Y.
Pub. Auth. L. § 1204(5-a)(a)). The law at issue in Kolender similarly required people to provide
"credible and reliable" identification upon request or face criminal sanctions. Kolender v.
Lawson, 461 U.S. at 353. Although there is no indication that the law at issue in Kolender was
alleged to violate the First Amendment, the Supreme Court indicated that First Amendment
liberties were implicated by the statute at issue. Id. at 358. As discussed above, the Court finds
implicit in plaintiffs argument the same concern for arbitrary suppression of First Amendment
rights that concerned the Supreme Court in Kolender. Accordingly, the Court finds that the ID
Rule reaches constitutionally protected conduct and implicates First Amendment liberties to the
same extent as the law found to be unconstitutionally vague in Kolender v. Lawson, and that, therefore, the Court may entertain a facial challenge to the ID Rule.23
Having found that a facial challenge to the ID Rule is appropriate, the Court need not
23Defendant also argues that, to the extent that Rybicki left open the possibility that the Second Circuit would consider a facial challenge to a statute that did not infringe upon First Amendment rights, the offending law must not only violate some other constitutional right but the law must be a criminal law that does not contain a mens rea requirement. (Def.' s SJ Mem. at 6 (citing United States v. Rybicki, 354 F.3d at 131)). Defendant argues that, to the extent that plaintiff alleges a violation of the right to travel, the alleged infringement must prevent travel "by any means;" thus, an infringement of plaintiffs right to travel on the subway system is not a constitutional violation because he is free to travel on foot or by bicycle, car, or Greyhound bus. (Id. at 6 (citing Miller v. Reed, 176 F.3d 1202, 1204-06 (9th Cir. 1999) (stating that governmental "burdens on a single mode of transportation do not implicate the right to interstate travel"))). Defendant contends that the same analysis should apply to an alleged infringement of the right to travel intra-state. (Id. at 6 (citing Selvan v. N.Y. Thruway Auth., 584 F.3d 82, 100 (2d Cir. 2009)). Thus, even if Barry is prevented from traveling on the subway system, defendant argues that there are other modes of transportation available and no facial challenge to the ID Rule should be considered. (Id. at 7). Having found that a facial challenge to the ID Rule is appropriate because the ID Rule implicates First Amendment Rights to the same extent as the law at issue in Kolender, the Court does not address this prong of defendant's argument.
34

address defendant's contention that the particular application of the ID Rule to plaintiffs case was valid. However, the Court notes that the ID Rule is unconstitutionally vague as applied to the specific facts of this case. First, the ID Rule did not provide Mr. Barry with fair notice of what conduct was prohibited. It is undisputed that Mr. Barry verbally identified himself, although defendant claims that Mr. Barry did so "only after Officer Dutes requested identification three times." (PI.' s 56.1 Stmnt ~ 12; Def.' s 56.1 Resp. ~ 12). Officer Dutes testified in this case that he asked for further identification from Mr. Barry because he felt that "giving...his name was not good enough at the time, the way he was acting." (PI.'s 56.1 Stmnt ~ 17; Def.' s 56.1 Resp. ~ 17). The ID Rule did not provide Mr. Barry with fair notice about whether identification beyond a verbal statement of his name could be demanded. Nor could he know whether supplemental verbal responses could have satisfied the ID Rule. Additionally, the ID Rule did not provide Officer Dutes with sufficient guidelines for enforcing the ID Rule against Mr. Barry. While Officer Dutes found that Mr. Barry's verbal identification was "not good enough at the time," other officers could have reasonably found that a verbal statement was sufficient to satisfy the ID Rule's requirement that the identification be "accurate, complete and true." In short, the Court finds that the ID Rule is unconstitutionally vague, both facially and as applied.
35

CONCLUSION For the reasons stated herein, the Court holds that the ID Rule is unconstitutionally vague on its face and as applied. Accordingly, defendant's motion to dismiss is denied, summary judgment is granted in favor of plaintiff Barry, and the Court issues a Declaration that the ID Rule, as currently written, is unconstitutional.

SO ORDERED. Dated: Brooklyn, New York
March 21,2013

/s/ Cheryl L. Pollak
agistrate Judge Eastern District ofNew York

36

 
 Case 1:11-cv-05533-CLP Document 75 Filed 05/09/13 Page 1 of 3 PageID #: 849 Case 1:11-cv-05533-CLP Document 74 Filed 05107/13 Page 1 of 3 PagelD #: 846

UNITED STATES DISTRICT COURT
E-A-S-T-ER-N--D-IS-TR-I-C-T-O-F-N-EW--Y-O-R-K-------x
ERNEST STEVE BARRY and MICHAEL BURKHART,
. Plaintiffs,

No. 11 CV 5533 (CLP)

-against-

STIPULATION AND ORDER OF SE'ITLEMENT

THE CITY OF NEW YORK, et aI., Defendants.
-----------------------------------_.._--------------x
WHEREAS, plaintiffs commenced this action by filing a Complaint on or about November 14, 2011, alleging, inler alia, that the Defendant New York City Transit Authority ("Transit Authority'"}'s "ID Rule" (21 N.Y.C.R.R. § 1050.6(d)(3), first sentence) is unconstitutional; and
WHEREAS, in May 2012, Plaintiff Emest Steve Barry and the Transit Authority consented to have the remainder of the case referred to a magistrate judge for all proceedings including the entry ofjudgment; and
WHEREAS, on March 21,2013, Magistrate Judge Cheryl L. Pollak entered an order denying the Transit Authority's motion to dismiss, granting Mr. Barry's motion for summary judgment, and issuing a declaration that the ID Rule, as currently written, is unconstitutional; and
WHEREAS, on April 17, 2013, the Court clarified and ordered that its March 21, 2013 Order did not address or in any way affect the second sentence of21 N.Y.C.R.R. § l050.6(dX3); and
WHEREAS, on April 22, 2013, the Transit Authority. filed a notice of appeal from the March 21, 2013 declaratory judgment; and
1459728

Case 1:11-cv-05533-CLP Document 75 Filed 05/09/13 Page 2 of 3 PageID #: 850 Case 1:11-cv-05533-CLP Document 74 Filed 05/07/13 Page 2 of 3 PagelD #: 847
WHEREAS, the parties'wish to settle the remainder of the case; NOW, TIlEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and between the undersigned attorneys for Mr. Barry and the Transit Authority, as follows: 1. The Transit Authority shall pay reasonable attorneys' fees, expenses, and costs of FOURTEEN THOUSAND AND FIVE HUNDRED DOLLARS ($14,500.00) to the New York Civil Liberties Union Foundation within 45 days in complete settlement of all matters between the parties. In accordance with federal law, the payments specified above shall be reported on Internal Revenue Se~ice form 1099. The parties agree that any and all tax liabilities on the payments will be the sole responsibility of New York Civil Liberties Union. 2. The Transit Authority shall withdraw its appeal of the Court's March 21, 2013 order and waive any right to appeal in this case. 3. Upon the Plaintiff's counsel's receipt oftbe payment in accordance with paragraph 1 and the withdrawal of the appeal in accordance with paragraph 2, Mr. Barry shall release and discharge the Transit Authority and affiliated companies, subsidiaries, officers, employees, agents, representatives, and successors and assigns, and all persons acting with or on behalf of them, from all claims, liabilities, obligations, promises. agreements, actions, or causes of action, other costs or expenses, of any nature whatsoever related to or arising out of the facts and circumstances that are the subject ofthis action, and the Transit Authority shall file a Stipulation ofDismissal with the Court that the parties have signed. 4. This stipulation and order shall not be construed as an admission of liability by the Transit Authority, or an admission by the Transit Authority that Mr. Barry suffered any damages.
1459728

Case 1:11-cv-05533-CLP Document 75 Filed 05/09/13 Page 3 of 3 PageID #: 851 Case 1:11-cv-05533-CLP Document 74 Filed 05/07/13 Page 3 of 3 PagelD #: 848

Dated: New York, New York May 6, 2013
~~J
Mariko Hirose Christopher Dunn New York Civil Liberties Union 125 Broad Street, 19th Floor New York, New York 10004 Tel. (212) 607-3322 Attorneys for Plaintiff Ernest Steve Barry
SO ORDERED: /1 .
Magistrate (ige Cheryl L. Pollak
Dated: _~5-f1--=~_·__-,. 2013
7

,fifi~
IF . ves
Richard Schoolman Office ofthe General Counsel New York City Transit Authority 130 Livingston Street, 12th Floor Brooklyn, New York 11201 (718) 694-4667 Attorneysfor Defondant N~w York City Transit Authority

1459728

 
 Case: 1:11-cv-05533-CLP As of: 05/22/2013 03:32 PM EDT 1 of 9
U.S. District Court Eastern District of New York (Brooklyn) CIVIL DOCKET FOR CASE #: 1:11−cv−05533−CLP

CLOSED

Barry et al v. City of New York et al Assigned to: Magistrate Judge Cheryl L. Pollak Cause: 42:1983 Civil Rights Act
Plaintiff Ernest Steve Barry

Date Filed: 11/14/2011 Date Terminated: 05/09/2013 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Arthur Eisenberg New York Civil Liberties Union Foundation 125 Broad Street, 17th Floor New York, NY 10004 212−344−3005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Claudia Angelos New York University School of Law Furman Hall 245 Sullivan Street New York, NY 10012 212−998−6462 Fax: 212−996−4031 Email: claudia.angelos@nyu.edu ATTORNEY TO BE NOTICED

Mariko Hirose New York Civil Liberties Union 125 Broad Street, 19th Floor New York, NY 10004 (212) 607−3322 Fax: (212) 607−3318 Email: mhirose@nyclu.org ATTORNEY TO BE NOTICED

Plaintiff Michael Burkhart

represented by Arthur Eisenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher T Dunn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Claudia Angelos

Case: 1:11-cv-05533-CLP As of: 05/22/2013 03:32 PM EDT 2 of 9
(See above for address) ATTORNEY TO BE NOTICED
Mariko Hirose (See above for address) ATTORNEY TO BE NOTICED

V. Defendant City of New York
Defendant New York City Transit Authority

represented by Johana Castro NYC Law Department Special Federal Litigation Division 100 Church Street New York, NY 10007 212−788−1573 Fax: 212−788−9776 Email: jcastro@law.nyc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Liza J Sohn New York City Law Department 100 Church Street Special Federal Litigation, Room 3−183 New York, NY 10007 (212)788−0715 Fax: 212−788−9776 Email: lsohn@law.nyc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Carl Joseph Copertino Department of Law New York City Transit Authority 130 Livingston Street, 12th Floor Brooklyn, NY 11201 718−694−4866 Fax: 718−694−4020 Email: copertino@verizon.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paige Ann Evans MTA New York City Transit Authority 130 Livingston Street Brooklyn, NY 11201 718−694−5719 Fax: 718−694−4020 Email: paige.graves@nyct.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Schoolman New York Transit Authority Law Dept. 130 Livingston Street, 12th floor Brooklyn, NY 11201 (718)694−4667 Fax: 718−694−5727 Email: Richard.Schoolman@nyct.com LEAD ATTORNEY

Case: 1:11-cv-05533-CLP As of: 05/22/2013 03:32 PM EDT 3 of 9

ATTORNEY TO BE NOTICED

Defendant
Steven Dutes a member of the New York City Police Department

represented by Johana Castro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Liza J Sohn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 11/14/2011 11/14/2011 11/14/2011 11/16/2011
11/30/2011 11/30/2011 11/30/2011 11/30/2011 12/06/2011 12/07/2011 12/08/2011 12/08/2011 12/12/2011 12/12/2011
12/20/2011

# Docket Text
1 COMPLAINT against All Defendants Disclosure Statement on Civil Cover Sheet completed −no,, filed by Michael Burkhart, Ernest Steve Barry. (Attachments: # 1 Civil Cover Sheet) (Bowens, Priscilla) (Entered: 11/15/2011)
FILING FEE: $ 350, receipt number 4653036339 (Bowens, Priscilla) (Entered: 11/15/2011)
Summons Issued as to All Defendants. (Bowens, Priscilla) (Entered: 11/15/2011)
2 SCHEDULING ORDER: Initial Status Conference is set for 12/28/2011 at 10:00 AM in Chambers 704S. SEE ATTACHED MANDATORY REQUIREMENTS FOR CONFERENCE. Ordered by Judge Brian M. Cogan on 11/16/2011. (Weisberg, Peggy) (Main Document 2 replaced on 11/17/2011) (Clarke, Melonie). (Entered: 11/16/2011)
3 SUMMONS Returned Executed by Michael Burkhart, Ernest Steve Barry. City of New York served on 11/16/2011, answer due 12/7/2011. (Angelos, Claudia) (Entered: 11/30/2011)
4 SUMMONS Returned Executed by Michael Burkhart, Ernest Steve Barry. Steven Dutes served on 11/16/2011, answer due 12/7/2011. (Angelos, Claudia) (Entered: 11/30/2011)
5 SUMMONS Returned Executed by Michael Burkhart, Ernest Steve Barry. New York City Transit Authority served on 11/17/2011, answer due 12/8/2011. (Angelos, Claudia) (Entered: 11/30/2011)
6 NOTICE of Appearance by Johana Castro on behalf of City of New York (aty to be noticed) (Castro, Johana) (Entered: 11/30/2011)
7 NOTICE of Appearance by Claudia Angelos on behalf of Ernest Steve Barry, Michael Burkhart (aty to be noticed) (Angelos, Claudia) (Entered: 12/06/2011)
8 ANSWER to 1 Complaint by City of New York, Steven Dutes. (Castro, Johana) (Entered: 12/07/2011)
9 ANSWER to 1 Complaint by New York City Transit Authority. (Schoolman, Richard) (Entered: 12/08/2011)
10 AMENDED ANSWER to 1 Complaint by New York City Transit Authority. (Schoolman, Richard) (Entered: 12/08/2011)
11 Letter Requesting Adjournment by Ernest Steve Barry, Michael Burkhart (Angelos, Claudia) (Entered: 12/12/2011)
ORDER granting 11 Letter Requesting Adjournment. Initial Status Conference adjourned to 1/17/2012 at 4:30 pm in Chambers 704S. Parties are reminded to comply with the mandatory requirements for the conference set forth at 2 . Ordered by Judge Brian M. Cogan on 12/12/2011. (Weisberg, Peggy) (Entered: 12/12/2011)
12 CASE MANAGEMENT STATEMENT Joint Proposed Case Management Plan (Angelos, Claudia) (Entered: 12/20/2011)

Case: 1:11-cv-05533-CLP As of: 05/22/2013 03:32 PM EDT 4 of 9

01/12/2012 01/18/2012 01/19/2012 01/19/2012 04/05/2012 04/18/2012
05/01/2012 05/01/2012
05/02/2012 05/02/2012
05/04/2012 05/04/2012 05/04/2012 05/04/2012

13 Letter Initial Joint Summary of Claims and Defenses by Ernest Steve Barry, Michael Burkhart, City of New York, Steven Dutes, New York City Transit Authority (Angelos, Claudia) (Entered: 01/12/2012)
MINUTE ENTRY for Initial Status Conference held before Judge Brian M. Cogan on 1/17/12. All parties present. Fact discovery must be completed by 4/16/12. See revised Civil Case Management Plan, which will be docketed separately, for details. (Weisberg, Peggy) (Entered: 01/18/2012)
14 Civil Case Management Plan is hereby adopeted. Ordered by Judge Brian M. Cogan on 1/17/2012. (Siegfried, Evan) (Entered: 01/19/2012)
15 ORDER. Law Student Intern Appearances are hereby granted. Ordered by Judge Brian M. Cogan on 1/17/2012. (Siegfried, Evan) (Main Document 15 replaced on 1/19/2012) (Siegfried, Evan). (Entered: 01/19/2012)
16 NOTICE of Appearance by Carl Joseph Copertino on behalf of New York City Transit Authority (aty to be noticed) (Copertino, Carl) (Entered: 04/05/2012)
SCHEDULING ORDER: Discovery in this matter having concluded, the parties are required to file a Joint Pretrial Order using the form posted on the Court's website by 5/9/2012. The parties are to simultaneously deliver to Chambers a set of those exhibits to which objection has been made, and those portions of deposition testimony that a party intends to offer and to which the adversary objects, both as reflected in the Joint Pretrial Order, so that the Court can rule on the objections at the Conference to the extent practicable. Final Pretrial Conference is set for 5/23/12 at 4:30 P.M. in Courtroom 8D South. Ordered by Judge Brian M. Cogan on 4/18/2012. (Weisberg, Peggy) (Entered: 04/18/2012)
17 Letter MOTION to Adjourn Conference Application to Advance Date of Scheduled Conference and to Adjourn Date for Submission of Pre−Trial Order by New York City Transit Authority. (Copertino, Carl) (Entered: 05/01/2012)
ORDER granting 17 Motion to Adjourn Conference. Pretrial Conference will be held on 5/11/12 at 2:30 pm in Courtroom 8D South; Joint Pretrial Order due by 5/7/12. The parties are to simultaneously deliver to Chambers a set of those exhibits to which objection has been made, and those portions of deposition testimony that a party intends to offer and to which the adversary objects, both as reflected in the Joint Pretrial Order, so that the Court can rule on the objections at the Conference to the extent practicable. Ordered by Judge Brian M. Cogan on 5/1/2012. (Weisberg, Peggy) (Entered: 05/01/2012)
18 Letter MOTION to Stay Pending Settlement Negotiations by Ernest Steve Barry. (Dunn, Christopher) (Entered: 05/02/2012)
ORDER denying 18 Motion to Stay. The parties appear to be suffering from some misconceptions. First, discovery is closed. See dkt 14 . No extension was requested during discovery and no grounds have been offered for a post−closure reinstitution of discovery. Second, the case is going to trial in short order. Third, this Court does not generally stay proceedings for settlement discussions, and sees no reason to here. The parties have had six months to settle this case, and can do it tomorrow if they want to. Fourth, the Court accelerated the final PTC because the TA asked it to. If the parties want to go back to the original schedule with the final PTC on 5/23, they should so advise the Court; otherwise, the current schedule stands. Ordered by Judge Brian M. Cogan on 5/2/2012. (Cogan, Brian) (Entered: 05/02/2012)
19 Joint MOTION to Adjourn Conference by Ernest Steve Barry. (Dunn, Christopher) (Entered: 05/04/2012)
20 NOTICE of Acceptance with Offer of Judgment by Michael Burkhart (Dunn, Christopher) (Entered: 05/04/2012)
21 NOTICE of Acceptance with Offer of Judgment by Ernest Steve Barry (Dunn, Christopher) (Entered: 05/04/2012)
ORDER granting 19 Motion to Adjourn Conference. Pretrial Conference reset to 5/23/12 at 4:30 pm in Courtroom 8D South; Joint Pretrial Order due 5/9/12. Parties

Case: 1:11-cv-05533-CLP As of: 05/22/2013 03:32 PM EDT 5 of 9

05/07/2012 05/07/2012 05/08/2012
05/08/2012 05/15/2012
05/18/2012
05/18/2012
05/29/2012 05/31/2012 05/31/2012 06/01/2012 06/01/2012 06/15/2012 06/15/2012 06/18/2012 06/19/2012

are reminded to simultaneously deliver to Chambers a set of those exhibits to which objection has been made, and those portions of deposition testimony that a party intends to offer and to which the adversary objects, both as reflected in the Joint Pretrial Order, so that the Court can rule on the objections at the Conference to the extent practicable. Ordered by Judge Brian M. Cogan on 5/4/2012. (Weisberg, Peggy) (Entered: 05/04/2012)
22 STIPULATION Consent to Magistrate Judge Trial by New York City Transit Authority (Copertino, Carl) (Entered: 05/07/2012)
Case reassigned to Magistrate Judge Cheryl L. Pollak pursuant to Consent to Magistrate Judge Trial 22 . Judge Brian M. Cogan no longer assigned to case. (Gapinski, Michele) (Entered: 05/07/2012)
23 CONSENT to Jurisdiction by US Magistrate Judge by Ernest Steve Barry, Michael Burkhart, City of New York, Steven Dutes, New York City Transit Authority. Case reassigned to Magistrate Magistrate Judge Cheryl L. Pollak (Siegfried, Evan) (Entered: 05/08/2012)
ELECTRONIC SCHEDULING ORDER: A telephone conference is scheduled for 5/15/12 @ 2:30 PM before MJ Pollak. So Ordered by Magistrate Judge Cheryl L. Pollak on 5/8/2012. (Caggiano, Diana) (Entered: 05/08/2012)
24 MINUTE ENTRY for Telephone \ Status Conference proceeding held before MJ Pollak on 5/15/2012. Plaintiffs to send 30(b)(6) notice; deposition(s) to be completed in 45 days. Plaintiff to send letter regarding Barry's position (platform or road bed) Telephone conference to motion schedule 7/11/12 @ 11:00 AM. (Caggiano, Diana) (Entered: 05/15/2012)
25 JUDGMENT: Defendants City of New York and Police Officer Steven Dutes shall pay plaintiff Michael Burkhart the total sum of $2,501.00, pursuant to the Rule 68 Offer of Judgment. Ordered by Magistrate Judge Cheryl L. Pollak on 5/15/2012. (Brucella, Michelle) (Entered: 05/18/2012)
26 JUDGMENT: Defendants City of New York and Police Officer Steven Dutes shall pay plaintiff Ernest Steve Barry the total sum of $5,001.00 pursuant to the Rule 68 Offer of Judgment. Ordered by Magistrate Judge Cheryl L. Pollak on 5/15/2012. (Brucella, Michelle) (Entered: 05/18/2012)
27 NOTICE of Appearance by Mariko Hirose on behalf of All Plaintiffs (aty to be noticed) (Hirose, Mariko) (Entered: 05/29/2012)
28 STIPULATION re 25 Judgment, 26 Judgment, by Ernest Steve Barry, Michael Burkhart (Hirose, Mariko) (Entered: 05/31/2012)
29 Letter MOTION to Vacate 25 Judgment, 26 Judgment, by City of New York, Steven Dutes. (Castro, Johana) (Entered: 05/31/2012)
30 STIPULATION AND ORDER re 28 So Ordered by Magistrate Judge Cheryl L. Pollak on 5/31/2012. (Caggiano, Diana) (Entered: 06/01/2012)
31 RESPONSE to Motion re 29 Letter MOTION to Vacate 25 Judgment, 26 Judgment, filed by All Plaintiffs. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3) (Hirose, Mariko) (Entered: 06/01/2012)
32 Letter MOTION for pre motion conference by Ernest Steve Barry. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Hirose, Mariko) (Entered: 06/15/2012)
33 Letter MOTION to Expedite Conference to Resolve Dispute over Coverage of Plaintiff's Factual Concession Needed for Summary Judgment Motions by New York City Transit Authority. (Copertino, Carl) (Entered: 06/15/2012)
34 Letter in response to the June 15, 2012 letter (docket entry no. 32) from plaintiffs attorney Mariko Hirose. by New York City Transit Authority (Copertino, Carl) (Entered: 06/18/2012)
35 RESPONSE to Motion re 33 Letter MOTION to Expedite Conference to Resolve Dispute over Coverage of Plaintiff's Factual Concession Needed for Summary Judgment Motions , REPLY to Response to Motion re 32 Letter MOTION for pre

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06/19/2012 06/22/2012 06/22/2012 06/25/2012 06/27/2012
07/02/2012 07/23/2012 07/23/2012 07/23/2012 07/23/2012
07/23/2012
07/24/2012 07/24/2012

motion conference filed by Ernest Steve Barry. (Hirose, Mariko) (Entered: 06/19/2012)
ELECTRONIC SCHEDULING ORDER: The parties are hereby Ordered to appear for a conference on 6/27/12 @ 12:00 p.m. As a reminder, any request for an adjournment must be filed with the Court via ECF at least 48 hours in advance. So Ordered by Magistrate Judge Cheryl L. Pollak on 6/19/2012. (Gordon, Mike) (Entered: 06/19/2012)
36 NOTICE of Appearance by Paige Ann Evans on behalf of New York City Transit Authority (aty to be noticed) (Evans, Paige) (Entered: 06/22/2012)
37 Letter Hon. Cheryl L. Pollak, M.J. re: The time scheduled creates a conflict by New York City Transit Authority (Copertino, Carl) (Entered: 06/22/2012)
38 ENDORSED LETTER − RESCHEDULING ORDER: re 37 Request granted. Conference adjourned to 6/27/12 @ 9:30 AM. So Ordered by Magistrate Judge Cheryl L. Pollak on 6/25/2012. (Caggiano, Diana) (Entered: 06/25/2012)
39 MINUTE ENTRY for Status Conference proceeding helf before MJ Pollak on 6/27/12 re: 29 granted − parties to meet and confer. 32 Denied without prejudice to renew if forthcoming standing facial challenge motions are unsuccessful. 33 granted − conference held 6/27/12. City defendant and plaintiff to meet and confer regarding settlement papers and attorneys fees and present revised judgment. Transit Authority and plaintiff to file cross−motions: Motions due 7/23/12. Responses due 8/13/12. Replies 8/24/12. Oral argument 9/13/12 @ 11:00 AM. (Caggiano, Diana) (Entered: 06/27/2012)
ELECTRONIC SCHEDULING ORDER: re 24 Status Conference, Telephone Conference. Given the briefing schedule set by the Court in the 6/27/12 conference, the telephone conference previously scheduled for 7/11/12 is unnecessary and adjourned sine die. So Ordered by Magistrate Judge Cheryl L. Pollak on 7/2/2012. (Gordon, Mike) (Entered: 07/02/2012)
40 MOTION to Dismiss by New York City Transit Authority. (Schoolman, Richard) (Entered: 07/23/2012)
41 MEMORANDUM in Support re 40 MOTION to Dismiss filed by New York City Transit Authority. (Schoolman, Richard) (Entered: 07/23/2012)
42 DECLARATION re 41 Memorandum in Support, 40 MOTION to Dismiss of Debra Siedman Dewan by New York City Transit Authority (Schoolman, Richard) (Entered: 07/23/2012)
43 DECLARATION re 42 Declaration, 41 Memorandum in Support, 40 MOTION to Dismiss by New York City Transit Authority (Attachments: # 1 Exhibit A: Complaint dated 11−14−11, # 2 Exhibit B: Transit Adjudication Bureau Violation No, 103416730, # 3 Exhibit C: Notice of Decision &Order, # 4 Exhibit D: pages 47,48,90,91 of E. Barry Transcript, # 5 Exhibit E; pages 33−38,41,42,45,47,51,86−91 of Seven Dutes Transcript, # 6 Exhibit F: two photos) (Schoolman, Richard) (Entered: 07/23/2012)
44 MOTION for Summary Judgment by Ernest Steve Barry. Responses due by 8/13/2012 (Attachments: # 1 Memorandum in Support, # 2 Rule 56.1 Statement, # 3 Declaration, # 4 Exhibit A, # 5 Exhibit B, # 6 Exhibit C, # 7 Exhibit D, # 8 Exhibit E, # 9 Exhibit F, # 10 Exhibit G, # 11 Exhibit H, # 12 Exhibit I, # 13 Exhibit J, # 14 Exhibit K, # 15 Exhibit L, # 16 Exhibit M, # 17 Exhibit N, # 18 Exhibit O, # 19 Exhibit P, # 20 Exhibit Q, # 21 Exhibit R, # 22 Exhibit S, # 23 Certificate of Service) (Hirose, Mariko) (Entered: 07/23/2012)
45 MOTION to Strike 44 MOTION for Summary Judgment Application to Strike Plaintiffs July 23, 2012 Summary Judgment Motion to the Extent It Argues the As Applied Unconstitutionality of 21 NYCRR § 1050.6(d)(3) by New York City Transit Authority. (Copertino, Carl) (Entered: 07/24/2012)
46 RESPONSE in Opposition re 45 MOTION to Strike 44 MOTION for Summary Judgment Application to Strike Plaintiffs July 23, 2012 Summary Judgment Motion to the Extent It Argues the As Applied Unconstitutionality of 21 NYCRR §

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07/31/2012 08/01/2012
08/06/2012 08/06/2012
09/10/2012 09/10/2012 09/10/2012 09/10/2012 09/10/2012 09/24/2012 09/24/2012 09/26/2012 09/26/2012 09/28/2012 09/28/2012 11/08/2012

1050.6(d)(3) filed by Ernest Steve Barry. (Hirose, Mariko) (Entered: 07/24/2012)
47 STIPULATION of Judgment Under Rule 68 by Ernest Steve Barry, Michael Burkhart, City of New York, Steven Dutes (Hirose, Mariko) (Entered: 07/31/2012)
48 STIPULATION AND ORDER OF JUDGMENT UNDER RULE 68: Defendant City of New York shall pay plaintiff Ernest Steve Barry the total sum of $5,001.00, and plaintiff Michael Burkhart the total sum of $2,501.00. Defendant City of New York shall also pay reasonable attorneys' fees, expenses and costs of $11,000.00 to the New York Civil Liberties Union Foundation. Ordered by Magistrate Judge Cheryl L. Pollak on 7/31/2012. (Brucella, Michelle) (Entered: 08/01/2012)
49 MOTION for Extension of Time to File Response/Reply by New York City Transit Authority. (Schoolman, Richard) (Entered: 08/06/2012)
50 ORDER re: 44 denying 45 grants 49 Defendant's motion to strike that portion of plaintiff's motion for summary judgment raising the as applied challenge is hereby denied. By letter dated 8/2/12, defendant requested an extension of the briefing schedule previously established and an adjournment of oral argument. The Court hereby grants both requests. The parties must file their oppositions to each other's motions by 9/10/12, and they must file replies by 9/24/12. The oral argument previously scheduled for 11:00 a.m. on 9/13/12 is rescheduled for 11:00 a.m. on 10/23/12. So Ordered by Magistrate Judge Cheryl L. Pollak on 8/6/2012. (Caggiano, Diana) (Entered: 08/06/2012)
51 MEMORANDUM in Opposition re 40 MOTION to Dismiss filed by Ernest Steve Barry. (Hirose, Mariko) (Entered: 09/10/2012)
52 AFFIDAVIT/DECLARATION in Opposition re 40 MOTION to Dismiss filed by Ernest Steve Barry. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Certificate of Service) (Hirose, Mariko) (Entered: 09/10/2012)
53 RULE 56.1 STATEMENT Defendant's statement in response to Plaintiff's undisputed statement of facts pursuant to local rule 56.1 filed by New York City Transit Authority. (Copertino, Carl) (Entered: 09/10/2012)
54 DECLARATION of Carl J. Copertino by New York City Transit Authority (Copertino, Carl) (Entered: 09/10/2012)
55 MEMORANDUM in Opposition to Plaintiff's Ernest Barry's Motion for Summary Judgment filed by New York City Transit Authority. (Copertino, Carl) (Entered: 09/10/2012)
56 REPLY to Response to Motion re 44 MOTION for Summary Judgment filed by Ernest Steve Barry. (Attachments: # 1 Rule 56.1 Statement Reply, # 2 Certificate of Service) (Hirose, Mariko) (Entered: 09/24/2012)
57 REPLY in Support re 40 MOTION to Dismiss filed by New York City Transit Authority. (Copertino, Carl) (Entered: 09/24/2012)
58 Letter MOTION to Adjourn Conference "Request for Re−Scheduling of Oral Argument" by New York City Transit Authority. (Schoolman, Richard) (Entered: 09/26/2012)
59 ENDORSED LETTER ORDER granting 58 Motion to Adjourn Conference. Hearing adjourned to 10/25/12 @ 2:30 PM. So Ordered by Magistrate Judge Cheryl L. Pollak on 9/26/2012. (Caggiano, Diana) (Entered: 09/26/2012)
60 Letter to Hon. Pollak re: Further Request for Re−Scheduling of Oral Argument by New York City Transit Authority (Schoolman, Richard) (Entered: 09/28/2012)
61 ENDORSED LETTER − RESCHEDULING ORDER: re 60 Request granted. Oral argument rescheduled to 11/8/12 @ 10:00 AM. So Ordered by Magistrate Judge Cheryl L. Pollak on 9/28/2012. (Caggiano, Diana) (Entered: 09/28/2012)
62 MINUTE ENTRY for Motion Hearing proceeding re 40 44 proceeding held before MJ Pollak on 11/8/2012. Argument held on motion for summary judgment and motion to dismiss. Decision reserved. (Caggiano, Diana) (Entered: 11/08/2012)

Case: 1:11-cv-05533-CLP As of: 05/22/2013 03:32 PM EDT 8 of 9

01/11/2013
03/21/2013
03/25/2013 03/28/2013 04/01/2013 04/03/2013 04/10/2013 04/15/2013
04/15/2013 04/15/2013 04/17/2013
04/22/2013 04/22/2013 04/22/2013

63 TRANSCRIPT of Proceedings held on 11/8/12, before Judge Pollak. Court Reporter/Transcriber TYPEWRITE WORD PROCESSING SERVICE, Telephone number 718−966−1401. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 2/1/2013. Redacted Transcript Deadline set for 2/11/2013. Release of Transcript Restriction set for 4/11/2013. (Hong, Loan) (Entered: 01/11/2013)
64 ORDER denying 40 Motion to Dismiss; granting 44 Motion for Summary Judgment. For the reasons stated herein, the Court holds that the ID Rule is unconstitutionally vague on its face and as applied. Accordingly, defendant's motion to dismiss is denied, summary judgment is granted in favor of plaintiff Barry, and the Court issues a Declaration that the ID Rule, as currently written, is unconstitutional. So Ordered by Magistrate Judge Cheryl L. Pollak on 3/21/2013. (Klein, Jennifer) (Entered: 03/21/2013)
ELECTRONIC SCHEDULING ORDER: A status conference has been scheduled for 4/11/13 at 3:00 p.m. So Ordered by Magistrate Judge Cheryl L. Pollak on 3/25/2013. (Klein, Jennifer) (Entered: 03/25/2013)
65 NOTICE of Appearance by Liza J Sohn on behalf of City of New York, Steven Dutes (aty to be noticed) (Sohn, Liza) (Entered: 03/28/2013)
66 Letter MOTION to Adjourn Conference by Ernest Steve Barry. (Hirose, Mariko) (Entered: 04/01/2013)
ELECTRONIC ORDER withdrawing 66 Motion to Adjourn Conference. Conference will proceed at the original scheduled date and time (4/11/13 @ 3:00 PM). So Ordered by Magistrate Judge Cheryl L. Pollak on 4/3/2013. (Caggiano, Diana) (Entered: 04/03/2013)
ELECTRONIC RESCHEDULING ORDER: The status conference previously scheduled for 4/11/13 before MJ Pollak has been rescheduled to 4/15/13 @ 10:00 AM. So Ordered by Magistrate Judge Cheryl L. Pollak on 4/10/2013. (Caggiano, Diana) (Entered: 04/10/2013)
67 MINUTE ENTRY for Status Conference proceeding held before MJ Pollak on 4/15/2013. Parties given 45 days to discuss possible resolultion. Defendant's to send letter regarding remaining sentence of ID Rule relating to fare cards; plaintiff to respond. Next conference set for 6/6/13 @ 11:30 AM. (Caggiano, Diana) (Entered: 04/15/2013)
68 Letter to Hon. Cheryl L. Pollak, MJ re: Clarification of Memorandum and Order by New York City Transit Authority (Schoolman, Richard) (Entered: 04/15/2013)
69 Letter Response re: Clarification of Memorandum and Order by Ernest Steve Barry (Hirose, Mariko) (Entered: 04/15/2013)
70 CLARIFICATION ORDER re 68 Letter filed by New York City Transit Authority, 69 Letter filed by Ernest Steve Barry. The Court hereby clarifies that its March 21, 2013 Order did not address or in any way affect the second sentence of 21 N.Y.C.R.R. Section 1050.6(d)(3), and this section of the TA's Rules remains extant. So Ordered by Magistrate Judge Cheryl L. Pollak on 4/17/2013. (Klein, Jennifer) (Entered: 04/17/2013)
71 NOTICE OF APPEAL as to 64 Order on Motion to Dismiss, Order on Motion for Summary Judgment,, by New York City Transit Authority. No fee paid. Attorney notified of filing fee. Service done electronically. (Schoolman, Richard) Modified on 4/22/2013 (McGee, Mary Ann). (Entered: 04/22/2013)
APPEAL FILING FEE DUE re 71 Notice of Appeal, Please either come to the clerks office or mail the filing fee in the amount of $455.00. (McGee, Mary Ann) (Entered: 04/22/2013)
NOTICE of Consent to jurisdiction of Magistrate Judge re 71 Notice of Appeal. See documents #22 and #23. (McGee, Mary Ann) (Entered: 04/22/2013)

Case: 1:11-cv-05533-CLP As of: 05/22/2013 03:32 PM EDT 9 of 9

04/22/2013
04/24/2013 04/25/2013 05/07/2013 05/09/2013
05/09/2013

Electronic Index to Record on Appeal sent to US Court of Appeals. 71 Notice of Appeal, Documents are available via Pacer. For docket entries without a hyperlink or for documents under seal, contact the court and we'll arrange for the document(s) to be made available to you. (McGee, Mary Ann) (Entered: 04/22/2013)
72 STIPULATION Concerning Timing of Plaintiff's Motion for Attorneys' Fees and Costs by Ernest Steve Barry (Hirose, Mariko) (Entered: 04/24/2013)
73 STIPULATION AND ORDER re 72 So Ordered by Magistrate Judge Cheryl L. Pollak on 4/24/2013. (Caggiano, Diana) (Entered: 04/25/2013)
74 STIPULATION and Order of Settlement by New York City Transit Authority (Schoolman, Richard) (Entered: 05/07/2013)
75 STIPULATION AND ORDER OF SETTLEMENT: The Transit Authority shall pay reasonable attorneys' fees, expenses, and costs of FOURTEEN THOUSAND AND FIVE HUNDRED DOLLARS ($14,500.00) to the New York Civil Liberties Union Foundation within 45 days in complete settlement of all matters between the parties. Ordered by Magistrate Judge Cheryl L. Pollak on 5/8/2013. (Brucella, Michelle) (Entered: 05/09/2013)
76 MANDATE of USCA as to 71 Notice of Appeal, filed by New York City Transit Authority. The parties in the above−referenced case have filed a stipulation withdrawing this appeal pursuant to FRAP 42. The stipulation is hereby "So Ordered". Mandate issued: 5/9/13 (McGee, Mary Ann) (Entered: 05/09/2013)