Filed Date: Oct. 4, 2011
Closed Date: 2017
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On October 4, 2011, members of the Occupy Wall Street movement filed this lawsuit in the United States District Court for the Southern District of New York against the City of New York, under 42 U.S.C. § 1983. The plaintiffs' lawsuit stems from a demonstration and march crossing the Brooklyn Bridge that took place on October 1, 2011. The plaintiffs alleged that during that demonstration, the New York Police Department "engaged in a mass false arrest of approximately 700 persons who participated in, or were in proximity to," the demonstration and that "[t]he NYPD, as a matter of policy and practice, engages in unconstitutional tactics to disturb, disrupt, penalize, infringe upon and criminalize constitutionally protected speech and assembly." They claimed that this conduct violated the plaintiffs' rights guaranteed by the First and Fourth Amendments of the United States Constitution. The plaintiffs, represented by Partnership for Civil Justice and Southern Legal Counsel, sought class certification, damages, and injunctive and declaratory relief. The plaintiffs also sought entry of an order declaring the arrests in question to be null and void, and authorizing each individual class member to deny that such an arrest ever occurred in response to any inquiry, such as an employment application.
On December 12, 2011, the plaintiffs filed a Second Amended Complaint. This added several named plaintiffs to the litigation as well as additional claims, namely claims alleging violation of the Due Process Clause of the Fourteenth Amendment and N.Y. General Municipal
Law § 50-e. Second Am. Compl 1, 39. The Second Amended Complaint also amended the remedies sought, adding a paragraph requesting:
Entry of a declaratory judgment that N.Y. City Adm. Code § 10-110(c) parading without a permit code provision is unconstitutional, facially or as applied to the extent it is applied as a strict liability offense, and entry of a permanent injunction prohibiting enforcement as a strict liability offense (i.e., enforcement in the absence of fair notice or warnings/orders to those subject to potential arrest);
This was added in response to the defendants' motion to dismiss the original complaint. In their motion to dismiss, the defendants argued that the Fourth Amendment claims should be dismissed because N.Y. City Adm. Code § 10-110(c) had provided the arresting officers with probable cause for the arrests. New York City Adm. Code § 10-110(c) provides that a "procession, parade or race shall be permitted upon any street or in any public place only after a written permit therefor has been obtained from the police commissioner."
On December 23, 2011, the defendants filed a motion to dismiss the plaintiffs' Second Amended Complaint. The defendants advanced two main arguments, namely (1) that the officers were entitled to qualified immunity because probable cause existed for the arrests, and (2) that the plaintiffs' claims for damages against the City and its officials should be dismissed because the rights at issue were not clearly established. On the qualified immunity point, the defendants argued that probable cause existed for the arrests because the plaintiffs participated in a "parade" without a permit in violation of N.Y. City Administrative Code, § 10-110, and that the video proof on which the plaintiffs relied in their complaint demonstrated that the marchers violated Penal Law § 240.20(5) by "obstruct[ing] vehicular ... traffic" on the roadway of the Brooklyn Bridge.
On June 7, 2012, the District Court (Judge Jed S. Rakoff) granted the defendants' motion to dismiss the Second Amended Complaint in part and denied it in part. Specifically, the Court denied the motion to dismiss plaintiffs' claims against the officers who arrested them, but dismissed the claims for damages against the City, Mayor Bloomberg, and Police Commissioner Kelly.
In denying the motion to dismiss the claims against the arresting officers, the Court explained that the defense of qualified immunity at this stage hinged on whether it would "be clear to reasonable police officers, in the situation the defendant officers confronted, that they lacked probable cause to believe (i) that the plaintiff demonstrators had committed a crime and (ii) that the plaintiff demonstrators had received fair warning?" Garcia v. Bloomberg, 865 F. Supp. 2d 478, 487 (S.D.N.Y. 2012). The Court found that there were two criminal statutes that the plaintiffs apparently violated. However, the Court found that the Second Amended Complaint adequately alleged that the plaintiffs failed to receive fair warning, and thus concluded that the defense of qualified immunity did not defeat the claims at this stage of the litigation.
As to the claims for damages against the City, Mayor Bloomberg, and Police Commissioner Kelly, the Court found that the plaintiffs had failed to adequately allege such claims. The plaintiffs had advanced three arguments for these claims. First, they argued that the existence of "Disorder Control Guidelines," the arrests of protesters in 2003 and 2004, and arrests that occurred a week before the incident in this case, all supported the conclusion that the City has a policy of conducting mass false arrests in order to discourage protesting. Second, the plaintiffs argued that Mayor Bloomberg and Commissioner Kelly either ratified or directly participated in the alleged constitutional violations by failing to act or investigate the incidents. Finally, the plaintiffs argued that Mayor Bloomberg and Commissioner Kelly faced liability based on their failure to train the arresting officers. The Court rejected each of these three arguments, finding the facts cited in support of them too attenuated or implausible to support actionable claims, and thus dismissed those claims. Id.at 491-94.
On June 28, 2012, the officer defendants appealed the District Court's denial of their motion to dismiss the complaint against them on qualified immunity grounds. The defendants argued that the District Court had erred in concluding that the complaint, and the other materials that could properly be considered on a motion to dismiss for failure to state a claim, did not establish that the defendants had probable cause to arrest the plaintiffs for disorderly conduct.
The Second Circuit disagreed. On August 21, 2014, a divided Second Circuit (Judges Guido Calabresi and Gerard E. Lynch, with Judge Lynch writing the opinion) affirmed the District Court's ruling. The Second Circuit found that:
Taking plaintiffs' allegations as true, as we must, we believe that they have adequately alleged actionable conduct. Plaintiffs have alleged that the police directed the demonstrators' activity along the route of their march, at times specifically condoning, or even directing, behavior that on its face would violate traffic laws. When the bottleneck at the pedestrian walkway of the Bridge led the demonstrators to pool into the roadway, the police did not immediately direct them out of the street, and when they did undertake to issue such a warning to clear the roadway, they did so in a way that no reasonable officer who observed the warning could have believed was audible beyond the first rank of the protesters at the front of the crowd. According to plaintiffs' account, the police then retreated back onto the Bridge in a way that would reasonably have been understood, and was understood, by the bulk of the demonstrators to be a continuation of the earlier practice of allowing the march to proceed in violation of normal traffic rules.We emphasize that the procedural posture of this case presents a formidable challenge to defendants' position. They urge us to find that qualified immunity is established for all defendants based on plaintiffs' version of events (plus a few inconclusive photos and videos). The evidence, once a full record is developed, may contradict plaintiffs' allegations, or establish that some or all of the defendants were not aware of the facts that plaintiffs allege would have alerted them to the supposed implicit permission. We express no view on whether some or all of the defendants may be entitled to qualified immunity at a later stage of the case. But to reverse the district court's denial of qualified immunity on a motion to dismiss, we would have to say that on the basis of plaintiffs' account of events, no officer who participated in or directed the arrests could have thought that plaintiffs were invited onto the roadway and then arrested without fair warning of the revocation of this invitation. Since we cannot do so on this limited record, we affirm the judgment of the district court.
Garcia v. Does, No. 12-2634-cv, 2014 WL 4099270, at *9 (2d Cir. Aug. 21, 2014) (footnotes and citation omitted).
Judge Debra Ann Livingston dissented. She wrote that the majority had turned the qualified immunity standard upside down, and would have found that the officers were entitled to qualified immunity. Id. at *13.
On December 17, 2014, the Second Circuit entered an order granting the defendants' petition for rehearing en banc and withdrawing its opinion of August 21, 2014 was. On the petition for rehearing, the Second Circuit then concluded that the defendants were entitled to qualified immunity. On February 24, 2015, the Second Circuit reversed the judgment of the district court, and remanded with instructions to dismiss the complaint. The court found that:
In this case, the facts alleged in the Complaint, and those depicted in the videos, do not bear out plaintiffs’ legal conclusion that the officers’ actions constituted “an actual and apparent grant of permission” to the demonstrators to utilize the roadway. Still less do those facts plausibly describe a situation in which reasonable officers would have clearly understood that their actions were interpreted by the demonstrators as a grant of permission, such that arresting the demonstrators would violate clearly established law. Accordingly, dismissal of the Complaint is required.
Garcia v. Does, 779 F.3d 84, 97 (2d Cir. 2015).
The Second Circuit's remanded the case to the district court. On April 28, 2015, the plaintiffs requested leave to filed a third amended complaint. The third amended complaint would contain new allegations, most relating to a police chief who was the ranking officer on the scene. These included allegations that the chief admitted he erred in not using police resources like scooters or mesh to block protestors from accessing the roadway. Other new allegations in the third amended complaint would concern the command and decision-making structures of the NYPD, again focusing primarily on the chief on the scene.
In a September 10, 2015 order, Judge Rakoff denied the plaintiffs' motion for leave to amend. He found that none of the additional allegations would contradict the Second Circuit's findings, stating that the new material had no bearing on its finding that the police had probable cause to arrest the marches, and that the further similar allegations of limited permission earlier in the march or implied permission on the roadway would still not be enough to defeat qualified immunity. Judge Rakoff, finding the proposed amendments to the complaint futile, denied leave to amend, and directed the clerk of court to enter a final judgment dismissing the complaint with prejudice and close the case. 2015 WL 54441222. Per Judge Rakoff's order, the district court closed the case on September 15, 2015.
The plaintiffs appealed the decision denying their request to amend their complaint to the Second Circuit on October 2, 2015. On October 13, 2016, the Second Circuit (Circuit Judges Gerard E. Lynch, Christopher F. Droney, and Chief District Judge Christina Reiss of the District of Vermont, sitting by designation) issued a summary order affirming the district court's decision. It found that:
The proposed Third Amended Complaint does not alter our conclusions in Garcia III. Rather, it only asserts that Esposito had better knowledge of the state of mind of the demonstrators than the other individual officers had, namely that Plaintiffs lacked the intent to violate the law. But the state of mind of the demonstrators—whether they thought that they were participating in a sanctioned, First–Amendment–protected roadway march or whether they were intentionally or recklessly blocking traffic—is irrelevant to the question of probable cause . . . Absent the allegation of specific facts to support a direct communication from police to marchers that the marchers were permitted to occupy the road, the Third Amended Complaint fails to change our prior conclusion that the defendants had probable cause to arrest Plaintiffs for violating N.Y. Penal Law § 240.20(5).
Garcia v. Bloomberg, 662 Fed. App'x 50, 53-54 (2d Cir. 2016).
The plaintiffs petitioned for a writ of certiorari, but the United States Supreme Court denied certiorari review on June 19, 2017. 136 S.Ct. 2266 (Mem). The case is now closed after the dismissal of the plaintiffs' complaint.
Summary Authors
Greg in den Berken (9/20/2014)
Sarah McDonald (8/13/2018)
For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/4349650/parties/garcia-v-bloomberg/
Abt, Uriel Benjamin (New York)
Adams, Daniel Lloyd (New York)
Alibey, Fayola Naila (New York)
Anakhu, Joy Tolulope (New York)
Anci, Joseph (New York)
Abt, Uriel Benjamin (New York)
Adams, Daniel Lloyd (New York)
Alibey, Fayola Naila (New York)
Anakhu, Joy Tolulope (New York)
Andersen, Jane Elizabeth (New York)
Aribakan, Suzanne Emily (New York)
Arko, Christopher G. (New York)
Auletta, Steven Joseph (New York)
Bahrenburg, Richard (New York)
Balog, Aliza Jordana (New York)
Barker, Kami Zumbach (New York)
Barnett, Camille Danielle (New York)
Beath, Patrick Neil (New York)
Becker, Jonathan Starr (New York)
Bergman, Zachary Russell (New York)
Birnbaum, Brooke Allyson (New York)
Bloom, Aaron Michael (New York)
Booth, Amatullah Khaliha (New York)
Bouriat, Christopher Saleh (New York)
Braun, Daniel Michael (New York)
Breslow, Stephanie Marie (New York)
Brocker, Peter William (New York)
Brooks, Jeffrey Charles (New York)
Bruzzese, Sheryl Ann (New York)
Byrns, Katherine Abigail (New York)
Calhoun, Martha Anne (New York)
Calistro, Phyllis Gail (New York)
Campbell-Priveterre, Joyce D. (New York)
Canfield, Donna Anne (New York)
Carpenter, Megan Burrows (New York)
Castro, Johana Vanessa (New York)
Cavalieri, Meghan Ann (New York)
Ceballo, Brian Paul (New York)
Chen, Caroline Ling-Yu (New York)
Ciappetta, Nicholas Robert (New York)
Cohen, Jessica Talia (New York)
Comfrey, Kathleen Marie (New York)
Cooke, Brenda Elaine (New York)
Daitz, Elizabeth M. (New York)
D'Andrea, Theresa Jeanine (New York)
Davis, Nicholas Shea (New York)
Dawkins, Julinda A. (New York)
DeCastro, Maria Fernanda (New York)
DePaul, Philip Rudolph (New York)
Depoian, Carolyn Kay (New York)
Dervin, James Monroe (New York)
Desmond, James Finbar (New York)
DiSenso, Anthony M. (New York)
Dole-Merson, Vivian (New York)
Dollin, Elizabeth Wizeman (New York)
Dougherty, Jeffrey Anthony (New York)
Eichenholtz, Seth D. (New York)
Eichenholtz, Eric Jay (New York)
Elfenbein, Randall Marc (New York)
Englert, Eviana Linnea (New York)
Fabian, Shawn David (New York)
Faddis, Hannah Victoria (New York)
Fain, Courtney Patrice (New York)
Farrar, Brian Jeremy (New York)
Farrell, Odile Maun (New York)
Fett, Baree Nichole (New York)
Fitzgibbon, Kaitlin E. (New York)
Fogarty, Peter John (New York)
Francolla, Brian Christopher (New York)
Frank, Philip Sebastian (New York)
Fretel, Anna Nguyen (New York)
Friedman, Bryce Leigh (New York)
Frommer, Hillary Ann (New York)
Fudim, Elissa Paulette (New York)
Garman, Ashley Rebecca (New York)
Gertzer, Michael Keith (New York)
Gomez-Sanchez, Daniel Sergio (New York)
Grey, William Andrew (New York)
Gutierrez, Michael C (New York)
Gutmann, Joseph Aaron (New York)
Haber, Erica Michelle (New York)
Haberman, Paul Stuart (New York)
Haider, Bilal Husain (New York)
Halbardier, Suzanne M. (New York)
Hanlon, Craig Andrew (New York)
Harvis, Gabriel Paul (New York)
Heer, Christopher Lee (New York)
Heim, Douglas William (New York)
Horton, James Fredrick (New York)
Jacobs, Elissa Beth (New York)
Johnson, Paul Hasan (New York)
Joyce, Kimberly Marie (New York)
Kitzinger, Stephen Edward (New York)
Kogel-Smucker, Sarah A. (New York)
Krasnow, Elizabeth Norris (New York)
Kruk, Carolyn Elizabeth (New York)
Larkin, Arthur G. III (New York)
Lebeaux, Edward Walter (New York)
Lemonedes, James M. (New York)
Lichterman, Ariel Shaun (New York)
Lipkin, Andrew Gary (New York)
Low-Beer, John Rudolf (New York)
Lucas, Andrew Joseph (New York)
MacFarlane, Katherine Alice (New York)
Mahon, Pamela Lynam (New York)
Manningham, Nicholas Daniel (New York)
Marutollo, Joseph Anthony (New York)
Mbabazi, Deborah L. (New York)
McLaren, Joanne Maureen (New York)
Meltzer, Hilary Michele (New York)
Mettham, Suzanna Publicker (New York)
Mindrutiu, Linda Margareta (New York)
Minko, Anthony James (New York)
Minnah-Donkoh, Kuuku Angate (New York)
Mitchell, Alison Sue (New York)
Modafferi, Matthew J. (New York)
Moston, Rachel Kane (New York)
Mouton, Gregory Paul (New York)
Murray, Diana Marsh (New York)
Muschenheim, Mark W. (New York)
Myerberg, Andrew Thomas (New York)
Naughton, Kathleen Erin (New York)
Neufeld, Sheryl Rebecca (New York)
Nimick, Virginia Jackson (New York)
Noble, Alexander Macrae (New York)
O'Flynn, Mary Theresa (New York)
Okereke, Amy Nkemka (New York)
Owen, Andrew Galway (New York)
Passeser, Daniel Louis (New York)
Patrick, Bradford Collins (New York)
Pollack, David Michael (New York)
Priveterre, Joyce Diane (New York)
Profeta, Lawrence John (New York)
Pullio, Robyn Nicole (New York)
Rauchberg, Andrew James (New York)
Reddy, Prathyusha Bandi (New York)
Renaghan, Sean Robert (New York)
Richards, Camiel S. (New York)
Richardson, Lisa Marie (New York)
Rivera, Suzette Corinne (New York)
Rodriguez, Wilda J. (New York)
Rosencrantz, Caryn A. (New York)
Rosenkilde, Kiran Hans (New York)
Rosenthal, Gary Philip (New York)
Rubin, Jennifer Lindsay (New York)
Saavedra, Daniel G. (New York)
Sadok, Melanie Vogel (New York)
Saint-Fort, Dominique F. (New York)
Sampale, Suvarna S. (New York)
Santiago, Leticia Joy (New York)
Savino, Kimberly Marie (New York)
Scharfstein, Susan P. (New York)
Schowengerdt, John S (New York)
Schuman, Jennifer Helen (New York)
Seacord, Christopher Aaron (New York)
Seligman, Rachel Amy (New York)
Shaffer, Ryan Glenn (New York)
Shammas, Cheryl Leah (New York)
Shtelmakher, Milena (New York)
Siaw, Stephanie Ahyemah (New York)
Siddiqi, Omar Javed (New York)
Silver, Cecilia Ann (New York)
Silverberg, Steven Mark (New York)
Silvermintz, Robyn Leigh (New York)
Singleton, Gerald E. (New York)
Siskind, Shira Rachel (New York)
Sitaras, Basil Constantine (New York)
Smith, Jordan Michael (New York)
Smith, Qiana Charmaine (New York)
Smith, Katherine Elizabeth (New York)
Smith-Williams, Qiana Charmaine (New York)
Speight, Melanie Mary (New York)
Sprovieri, Kathryn M (New York)
Stackhouse, Noreen M. (New York)
Stearman, Gary Kenneth (New York)
Stockman, Benjamin E. (New York)
Stodola, Damion Kenneth (New York)
Stolorow, Adam Michael (New York)
Tann, Sabrina Melissa (New York)
Telfort, Pernell Michael (New York)
Thadani, Kavin Suresh (New York)
Villanueva, Paul Michael (New York)
Wasylik, Katheryn MT (New York)
Weber, Steven Douglas (New York)
Weiler, Fred Michael (New York)
Weingarten, Richard Keith (New York)
Weir, Matthew Charles (New York)
Welch, Alicia Hayley (New York)
Wells, Elizabeth A. (New York)
Wenzel, Andrew Patrick (New York)
Winslow, Lamar Devaughn (New York)
Wolf, Joshua Matthew (New York)
Zgodny, Vicki Becker (New York)
See docket on RECAP: https://www.courtlistener.com/docket/4349650/garcia-v-bloomberg/
Last updated Dec. 18, 2024, 3:43 a.m.
Docket sheet not available via the Clearinghouse.State / Territory: New York
Case Type(s):
Special Collection(s):
Key Dates
Filing Date: Oct. 4, 2011
Closing Date: 2017
Case Ongoing: No
Plaintiffs
Plaintiff Description:
Plaintiffs are several Occupy Wall Street protesters who claim that they were arrested while crossing the Brooklyn Bridge on October 1, 2011, during an Occupy Wall Street protest. They are suing the City of New York on behalf of themselves and all others similarly situated, contending that these arrests were unlawful.
Plaintiff Type(s):
Public Interest Lawyer: Yes
Filed Pro Se: No
Class Action Sought: Yes
Class Action Outcome: Denied
Defendants
City of New York (City of New York, New York), City
Defendant Type(s):
Case Details
Causes of Action:
Declaratory Judgment Act, 28 U.S.C. § 2201
Constitutional Clause(s):
Unreasonable search and seizure
Available Documents:
Outcome
Prevailing Party: Defendant
Nature of Relief:
Source of Relief:
Issues
General/Misc.:
Jails, Prisons, Detention Centers, and Other Institutions:
Over/Unlawful Detention (facilities)
Policing: