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Case Name Berg v. Kelly PN-NY-0031
Docket / Court 1:12-cv-3391 ( S.D.N.Y. )
State/Territory New York
Case Type(s) Policing
Special Collection Occupy
Case Summary
On Apr. 30, 2012, five 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 and individual New York City Police Department officers. The plaintiffs, represented by private counsel, ... read more >
On Apr. 30, 2012, five 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 and individual New York City Police Department officers. The plaintiffs, represented by private counsel, sought class certification, as well as injunctive and declaratory relief under 42 U.S.C. § 1983, alleging that officers of the NYPD violated their rights under the First, Fourth, and Fourteenth Amendments of the United States Constitution, as well as their rights under the Constitution of the State of New York. Specifically, the plaintiffs alleged that they were unlawfully detained by NYPD officers during an Occupy Wall Street demonstration held in New York City on Nov. 8, 2011.

The plaintiffs' claims arose from the NYPD's usage of barricades during the demonstration, when protesters gathered in Bryant Park. Their plan was to march toward a fundraising event attended by President Obama at the Sheraton Hotel and protest outside of the hotel. The plaintiffs alleged that they were illegally confined in a closed pen formed by police-erected barricades for nearly two hours. The plaintiffs alleged that they repeatedly asked to leave the enclosure, but the officers refused and threatened to arrest anyone who tried to leave, while tourists and journalists were permitted to leave the barricaded area. The plaintiffs were never arrested nor charged with any violation, misdemeanor, or crime.

The plaintiffs alleged that this conduct amounted to false arrest, and violated their First Amendment rights to freedom of speech, association, and assembly, as well as their Fourth Amendment right to be free from unreasonable seizures. The plaintiffs also alleged that the defendants subjected them to selective enforcement in violation of the Equal Protection Clause of the Fourteenth Amendment. Furthermore, the plaintiffs claimed that the other NYPD officers had an affirmative duty to assess the constitutionality of their actions, and that their failure to intervene amounted to a separate and distinct violation of plaintiffs' constitutional rights.

The plaintiffs argued that the NYPD's conduct violated a Stipulation of Settlement and Order in another Southern District of New York case, Stauber v. City of New York, 1:03-cv-9163. That settlement amended Section 213-11, 21(h)(3) of the New York Police Department Patrol Guide to state the following:
Barrier configuration for demonstrations should not unreasonably restrict access to and participation in the event. For example, attendees should be permitted to leave a barricaded area at any time. In addition, if crowd conditions and other circumstances permit, participants should be permitted to leave and return to the same area. Sufficient openings in the barricades should be maintained for purpose of permitted attendees to leave expeditiously and return to the event as described in this paragraph.

In their complaint, the plaintiffs asked the court to issue an order compelling the NYPD to comply with this section.

On Mar. 6, 2013, the defendants filed a motion to dismiss for (1) failure to state a claim and (2) failure to fulfill conditions precedent to filing suit. The defendants argued that the barricades amounted to a reasonable time, place, manner restriction under the First Amendment, and that the need to ensure the President's security rendered the plaintiffs' Fourth Amendment claim non-actionable. The defendants also pointed to New York General Municipal Law § 50-i(1), which sets forth certain procedures for suing the City. The defendants claimed that plaintiffs' had failed to comply with § 50-i(1), and that their claims were therefore barred.

On Nov. 21, 2013, District Judge Thomas P. Griesa for the United States District Court for the Southern District of New York denied the defendants' motion for judgment on the pleadings. Judge Griesa acknowledged that although it was "a close question as to whether [the complaint] states a valid cause of action for violation of constitutional rights . . . [t]he court believes that it is not appropriate at this stage to rule on the merits of the case." Berg v. Kelly, 12-cv-03391 TPG, 2013 WL 6153253, at *2 (S.D.N.Y. Nov. 22, 2013). However, the court noted that "a summary judgment motion, or cross-summary judgment motions, may be appropriate in order to avoid a drawn-out litigation with full discovery and trial." Id.

On Dec. 18, 2015, the plaintiffs filed an amended complaint. On Jan. 21, 2016, the defendants moved for summary judgment on all claims.

On Aug. 10, 2016, the district court granted in part and denied in part the defendants' motion for summary judgment. The court denied the defendants' summary judgment motion with respect to the Fourth Amendment false-arrest claim, the First Amendment retaliation claim, the Fourteenth Amendment selective-enforcement claim, and the failure-to-intervene claim, finding that genuine issues of material fact existed. The court also found that the defendants had failed to show that they were entitled to qualified immunity. The court granted the motion to dismiss with respect to the plaintiffs' § 1983 claims against the Commissioner of the NYPD and the Chief of Department of the NYPD, finding that they failed for lack of sufficient involvement in the alleged constitutional violations, as neither defendant was at the scene was at the scene of the protest. The court also dismissed the state constitutional claims, because as the plaintiffs had alternate remedies available under a federal statute such as § 1983, their state constitutional tort claims were "redundant and precluded" under Biswas v. City of New York, 973 F. Supp. 2d 504, 522 (S.D.N.Y. 2013).

On Sept. 9, 2016, the defendants appealed to the U.S. Court of Appeals for the Second Circuit, from the district court's opinion dated Aug. 10, 2016. The case was assigned Docket No. 16-3146. On Nov. 18, 2016, several of the plaintiffs-appellees moved to dismiss the appeal for lack of jurisdiction, but the Sixth Circuit denied the motion on Jan. 11, 2017. A Second Circuit panel of Judges Reena Raggi, Susan Carney, and Peter Hall ruled on the appeal on July 25, 2018 (897 F.3d 99). They noted that the officers did have a special need that could exempt them from the Fourth Amendment's probable cause requirement--the need to protect the President--but found that the ensuing detention procedure did not balance the competing interests of protecting the President, since the protesters were not allowed to leave at all while non-protesters successfully left the area in small groups without incident. However, they overturned the District Court's analysis that the officers were not entitled to qualified immunity because there was a question of material fact as to the mental state of the officers erecting the barricades. They stated that qualified immunity is analyzed through the lens of a reasonable officer, not the mental state of the officer at issue, and found that a reasonable officer protecting the President could think that this detention strategy did not violate any Constitutional rights. With this grant of qualified immunity, all the Constitutional complaints were invalidated, and the Second Circuit recommended that the District Court dismiss the case with prejudice.

District Court Judge Lewis A. Kaplan, assigned to the case since 2018, took up the Second Circuit's recommendation and declined to reargue the case on April 22, 2019. The decision to decline to reargue was based on a November 30, 2018 recommendation from Magistrate Judge Gabriel Gorenstein (343 F.Supp.3d 419). In the same order, he noted that all claims were now dismissed, and ordered the plaintiffs to pay attorney's fees. The case is closed.

Greg in den Berken - 07/21/2014
Elizabeth Greiter - 03/20/2018
Ellen Aldin - 05/29/2020

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Issues and Causes of Action
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Constitutional Clause
Due Process
Equal Protection
Freedom of speech/association
Unreasonable search and seizure
False arrest
Over/Unlawful Detention
Search policies
Plaintiff Type
Private Plaintiff
Causes of Action 42 U.S.C. § 1983
State law
Defendant(s) City of New York
Plaintiff Description Plaintiffs are five members of the Occupy Wall Street movement who were allegedly detained by the New York Police Department during a demonstration on Nov. 30, 2011.
Class action status sought Yes
Class action status outcome Pending
Filed Pro Se No
Prevailing Party Defendant
Public Int. Lawyer No
Nature of Relief None
Source of Relief None
Filed 04/30/2012
Case Closing Year 2019
Case Ongoing No
Case Listing PN-NY-0037 : Stauber v. City of New York (S.D.N.Y.)
Additional Resources
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Court Docket(s)
PN-NY-0031-9000.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
General Documents
Class Action Complaint [ECF# 1]
PN-NY-0031-0001.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
Opinion [Denying Motion to Dismiss] [ECF# 62] (2013 WL 6153253)
PN-NY-0031-0002.pdf | WESTLAW | Detail
Source: PACER [Public Access to Court Electronic Records]
Class Action Amended Complaint [ECF# 86]
PN-NY-0031-0003.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
Opinion [ECF# 116] (2016 WL 4257525)
PN-NY-0031-0004.pdf | WESTLAW | Detail
Source: PACER [Public Access to Court Electronic Records]
U.S. Court of Appeals
Opinion [Ct. of App. ECF# 134] (897 F.3d 99)
PN-NY-0031-0005.pdf | WESTLAW| LEXIS | Detail
Source: PACER [Public Access to Court Electronic Records]
Report and Recommendation [ECF# 144] (343 F.Supp.3d 419)
PN-NY-0031-0006.pdf | WESTLAW| LEXIS | Detail
Source: PACER [Public Access to Court Electronic Records]
show all people docs
Judges Gorenstein, Gabriel W. (S.D.N.Y.) [Magistrate] show/hide docs
PN-NY-0031-0006 | PN-NY-0031-9000
Griesa, Thomas Poole (S.D.N.Y.) show/hide docs
PN-NY-0031-0002 | PN-NY-0031-0004
Hall, Peter W. (Second Circuit) show/hide docs
Kaplan, Lewis A. (S.D.N.Y.) show/hide docs
Plaintiff's Lawyers Borchetta, Jennifer Rolnick (New York) show/hide docs
PN-NY-0031-0001 | PN-NY-0031-9000
Moore, Jonathan C. (New York) show/hide docs
PN-NY-0031-0001 | PN-NY-0031-9000
Moskovitz, Joshua Samuel (New York) show/hide docs
Rankin, David Bruce (New York) show/hide docs
PN-NY-0031-0001 | PN-NY-0031-0003 | PN-NY-0031-9000
Defendant's Lawyers Anakhu, Joy Tolulope (New York) show/hide docs
Goykadosh, Brachah (New York) show/hide docs
Lucas, Andrew Joseph (New York) show/hide docs
Robinson, Amy (New York) show/hide docs
Weiss, Dara Lynn (New York) show/hide docs

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