Garcia v. Bloomberg

865 F. Supp. 2d 478, 2012 U.S. Dist. LEXIS 79296, 2012 WL 2045756
CourtDistrict Court, S.D. New York
DecidedJune 7, 2012
DocketNo. 11 Civ. 6957 (JSR)
StatusPublished
Cited by11 cases

This text of 865 F. Supp. 2d 478 (Garcia v. Bloomberg) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Garcia v. Bloomberg, 865 F. Supp. 2d 478, 2012 U.S. Dist. LEXIS 79296, 2012 WL 2045756 (S.D.N.Y. 2012).

Opinion

[482]*482 OPINION AND ORDER

JED S. RAKOFF, District Judge.

What a huge debt this nation owes to its “troublemakers.” From Thomas Paine to Martin Luther King, Jr., they have forced us to focus on problems we would prefer to downplay or ignore. Yet it is often only with hindsight that we can distinguish those troublemakers who brought us to our senses from those who were simply ... troublemakers. Prudence, and respect for the constitutional rights to free speech and free association, therefore dictate that the legal system cut all nonviolent protesters a fair amount of slack.

These observations are prompted by the instant lawsuit, in which a putative class of some 700 or so “Occupy Wall Street” protesters contend they were unlawfully arrested while crossing the Brooklyn Bridge on October 1, 2011. More narrowly, the pending motion to dismiss the suit raises the issue of whether a reasonable observer would conclude that the police who arrested the protesters had led the protesters to believe that they could lawfully march on the Brooklyn Bridge’s vehicular roadway.

By way of background, this suit was originally filed on October 4, 2011 by certain of the named plaintiffs, purportedly on behalf of the class of all protesters who were arrested, alleging that the arrests violated the protesters’ rights under the First, Fourth, and Fourteenth Amendments. Subsequently, on November 30, 2011, plaintiffs amended their complaint to add additional plaintiffs and claims, but the Court concluded that this First Amended Complaint contained improper material and needed to be revised. Accordingly, on December 12, 2011, the plaintiffs filed a Second Amended Complaint (“SAC”), which is the operative instrument here. On December 23, 2011, the defendants moved to dismiss the Second Amended Complaint. The parties submitted extensive written briefs, and the Court heard oral argument on January 19, 2011. Having now fully considered the matter, the Court grants defendants’ motion in part and denies it in part, for the reasons stated below. Specifically, the Court dismisses plaintiffs’ “Monell ” claims against the City, Mayor Bloomberg, and Commissioner Kelly, but denies the motion to dismiss plaintiffs’ claims against the officers who arrested them.

The Second Amended Complaint alleges that, on October 1, 2011, thousands of demonstrators marched from Zuceotti Park in downtown Manhattan to the Brooklyn Bridge in order to show support for the Occupy Wall Street movement. SAC ¶ 65. The New York Police Department (“NYPD”), Mayor Bloomberg, and Commissioner Kelly allegedly knew that the protesters planned to march and conferred about how to respond. Id. ¶¶ 63-64. The NYPD accompanied the marchers and prepared its personnel and equipment to ensure that the crowd remained under control. Id. ¶¶ 67-68. The SAC alleges, based on “information and belief,” that Commissioner Kelly monitored the march and communicated with subordinates while it proceeded. Id. ¶¶ 70-71.

The NYPD allegedly guided the marchers toward the Brooklyn Bridge. Id. ¶¶ 74-79. Although in the process the police allegedly permitted, and even directed, marchers to violate traffic regulations, id. ¶ 81, this caused no problems because the police had also blocked vehicular traffic in order to accommodate the march, id. ¶ 82. The marchers, in turn, allegedly relied on police officers’ commands in order to determine how they could legally proceed. Id. ¶¶ 83-85. When the marchers reached the Brooklyn Bridge, they slowed down because only a few marchers could enter the bridge’s pedestrian walkway' at the [483]*483same time. Id. ¶ 88. Police officers initially blocked the eastbound vehicular roadway, preventing marchers from proceeding onto that portion of the bridge. Id. ¶ 90. Subsequently, however, the police officers who had blocked the entrance to the bridge’s vehicular roadway turned and, followed by a large number of marchers, walked onto that portion of the bridge. Id. ¶ 104. After approximately 700 of the marchers had entered the bridge’s vehicular roadway, the police restricted the marchers’ ability to move forward or backward and arrested them. Id. ¶ 129-130, 134.

The plaintiffs assert, in effect, that they attempted at all times to follow the NYPD’s instructions and that they had every reason to believe the police were permitting them to enter the bridge’s vehicular roadway. The police, by contrast, assert that they expressly warned the marchers that entering the bridge’s vehicular roadway would lead to their arrest. In assessing these competing contentions, the Court, at the parties’ behest, has examined two videos of the events. Broder v. Cablevision Sys. Corp., 418 F.3d 187, 196 (2d Cir.2005).1

Plaintiffs’ video, apparently filmed by a protester, shows a uniformed police officer speaking into a “bull horn” approximately fifteen feet from the camera, at the Manhattan entrance to the Brooklyn Bridge. SAC Ex. F. Many protesters chant and clap. Id. A whistle blows in the background. Id. A viewer who listens closely can understand some of the officer’s words over the protester’s persistent chants, but not enough to perceive the officer’s meaning. Id. Once the officer finishes speaking, he turns his back to the protesters and returns to the line of officers blocking access to the vehicular roadway. Id. After a few moments, the line of officers turns and proceeds onto the vehicular roadway, followed, at a distance of at least ten feet, by hundreds of protesters. Id.

The defendants’ video, filmed by the NYPD’s Technical Assistance Response Unit (“TARU”), SAC ¶ 113, is shot from behind the officer speaking into the bull horn. Decl. of Arthur G. Larkin dated December 23, 2011 (“Larkin Deck”) Ex. A.2 In the TARU video, the viewer can clearly hear the officer tell protesters, “Ladies and gentlemen you are obstructing vehicular traffic. If you refuse to move you are subject to arrest.” Id. The officer later says, “I am ordering you to leave this roadway now. If you do so voluntarily, no charges will be placed against you.” Id. It appears that some of the protesters near the bull horn can hear these warnings, and one at the front asks the officer what offense the officers intend to charge. Id. Others standing farther away, however, appear not to hear the officer or even notice that he has addressed them. Id. After the officer has finished delivering his warnings and rejoined his colleagues blocking the entry to [484]*484the vehicular roadway, the demonstrators closest to the camera lock arms. Id. The officers, followed almost simultaneously by the demonstrators, move in the direction of the bridge’s vehicular roadway. Id. Photographers run into the space between them to photograph the demonstrators. Id. Both the demonstrators and the police officers remain calm and restrained. Id. Other than the initial warnings given by the officer with the bull horn, the officers and demonstrators do not appear to communicate. Id.

The SAC alleges that, though the NYPD possesses sound equipment capable of projecting a message over several blocks, id. ¶ 103, it did not deploy that technology in this situation, and the great majority of marchers thus could not hear the directives that the officer with the bull horn gave shortly before officers ceased blocking the vehicular roadway. Id. ¶¶ 98-103.

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Bluebook (online)
865 F. Supp. 2d 478, 2012 U.S. Dist. LEXIS 79296, 2012 WL 2045756, Counsel Stack Legal Research, https://law.counselstack.com/opinion/garcia-v-bloomberg-nysd-2012.