Bryant v. City of New York

Decision Date05 April 2005
Docket NumberDocket No. 04-0199-CV.
Citation404 F.3d 128
CourtU.S. Court of Appeals — Second Circuit
PartiesTimothy BRYANT, Maurice Cassidy, Joseph Defilippis, Jessica Dyson, Leonard Gay, Robert Takacs, Ulrik Trojaborg, Plaintiffs-Appellants, v. CITY OF NEW YORK; City of New York Police Department; Rudolph Giuliani individually and in his official capacity as Mayor of the City of New York; Howard Safir, individually and in his official capacity as Police Commissioner of the NYPD; Allan Hoehl, individually and in his official capacity as Police Chief of the New York City Police Department; and "John Doe," an unknown police officer employed by the City of New York, Defendants-Appellees.

James Reif, New York, New York (Gladstein, Reif & Meginniss, New York, New York, Daniel L. Alterman, Alterman & Boop, New York, New York, on the brief), for Plaintiffs-Appellants.

Norman Corenthal, Assistant Corporation Counsel, New York, New York (Michael A. Cardozo, Corporation Counsel of the City of New York, Kristin M. Helmers, Senior Counsel, New York, New York, on the brief), for Defendants-Appellees.

Before: KEARSE, SACK, and HALL, Circuit Judges.

KEARSE, Circuit Judge.

Plaintiffs Timothy Bryant et al., who were arrested and charged with disorderly conduct during a large public event, appeal from a judgment of the United States District Court for the Southern District of New York, Lawrence M. McKenna, Judge, dismissing their second amended complaint ("complaint") alleging principally that defendants City of New York (the "City"), its police department, mayor, and certain police officers and officials violated plaintiffs' rights under federal and state law in connection with plaintiffs' arrests and postarrest processing. Plaintiffs asserted, inter alia, that their due process rights were violated by defendants' failure to release them shortly after their arrests. The district court granted defendants' motion for summary judgment dismissing the constitutional claims, finding chiefly that the due process claims were untenable because plaintiffs had failed to show either (a) a protected liberty interest, or (b) if such an interest existed, any impact on that interest sufficient to create an issue of constitutional dimension. The court declined to exercise supplemental jurisdiction over plaintiffs' state-law claims. On appeal, plaintiffs contend principally that the district court erred in assessing their due process claims. Defendants contend, inter alia, that plaintiffs' claims of undue delays in being released from custody should be analyzed under the Fourth Amendment rather than under more general principles of due process, but that the claims cannot survive analysis under either framework. For the reasons that follow, we agree with defendants that the Fourth Amendment provides the proper analytical framework for those claims and that they were properly dismissed.

I. BACKGROUND

This case arises out of a "rally/vigil" held in New York City on the evening of Monday, October 19, 1998, to "protest anti-gay violence" (complaint ¶ 7) and honor the memory of Matthew Shepard, a gay college student who had been murdered in Wyoming (id. ¶ 36) one week earlier. The event ("Shepard demonstration") was scheduled to begin with a gathering at approximately 6:00 p.m. at the intersection of 59th Street and Fifth Avenue; the participants were to march down the sidewalk on Fifth Avenue from 59th Street to Madison Square Park, located between 26th and 23rd Streets, where the Shepard demonstration would conclude with speeches.

Most of the plaintiffs were participants in the event. They were arrested and charged with disorderly conduct when they walked or stood in the roadway and failed to return to the sidewalk when ordered to do so by police officers; most were taken to a police station; all were held overnight, or at least until after midnight, and then released. None were convicted.

To the extent pertinent to this appeal, the details as to these events are not in dispute except as indicated below, having been (A) asserted principally in Defendants' Statement of Undisputed Facts Pursuant to Local Rule 56.1 ("Defendants' 56.1 Stmt.") submitted in support of their motion for summary judgment, and not disputed in accordance with that Rule by Plaintiffs' Rule 56.1 Statement in Opposition to Defendants' Motion for Summary Judgment ("Plaintiffs' Opp. 56.1 Stmt."); or (B) asserted by plaintiffs in a Rule 56.1 statement submitted in support of a cross-motion for summary judgment in plaintiffs' favor on certain of their state-law claims ("Plaintiffs' Cross-Motion 56.1 Stmt.") and not disputed by defendants. We view the record in the light most favorable to plaintiffs, as the parties against whom summary judgment was granted.

A. The March

It was anticipated that the Shepard rally/vigil on October 19 would be attended by some 200 persons. No permit was obtained (see Defendants' 56.1 Stmt. ¶ 14), as "[i]t was understood" that the walk "was to be a sidewalk march" (Plaintiffs' Opp. 56.1 Stmt. ¶ 14), and "[n]o permit is required for a `sidewalk march'" (id.).

As it turned out, however, by the end of the evening the rally and march had attracted some 4,000 participants. (See Defendants' 56.1 Stmt. ¶¶ 16-17; Plaintiffs' Opp. 56.1 Stmt. ¶ 16.) Initially, 100 police officers had been assigned to the Shepard demonstration; as the number of participants grew, and overflowed the sidewalks, some 1,500 police officers were mobilized for crowd-control. (See Defendants' 56.1 Stmt. ¶¶ 15, 43; Plaintiffs' Opp. 56.1 Stmt. ¶¶ 16, 43.) After the marchers began to pour down Fifth Avenue, the police erected barricades, diverting the marchers west on 56th Street one block to Avenue of the Americas, then south to 54th Street, and then east one block to Fifth Avenue where they again were allowed to proceed south.

According to defendants, who presented a videotape of the event to support their assertions, uniformed police officers made announcements to the crowd by use of bullhorn loud speakers. Those announcements included statements that the participants were required to remain on the sidewalks and were not allowed to walk on or remain in the roadway; that if the participants remained on the sidewalks they would be escorted to Madison Square Park; and that persons who remained in the roadway would be arrested. (See Defendants' 56.1 Stmt. ¶¶ 19-24.) In response to these Rule 56.1 assertions, plaintiffs stated only that several plaintiffs did not hear the announcements that they should stay on the sidewalk and would be arrested if they failed to do so. (See Plaintiffs' Opp. 56.1 Stmt. ¶¶ 19-24.)

Supported by additional citations to the videotape, defendants asserted that despite the police announcements, a large group of participants entered the roadway at Fifth Avenue and 59th Street, locked arms, and obstructed traffic; that demonstrators were encouraging each other to enter the roadway; that one demonstrator with a bullhorn told other participants, "if you are willing to take arrests, please move into the street"; that many individuals then sat down in the roadway; that demonstrators in the street chanted, "WHO'S STREET? OUR STREET!" and "TAKE THE STREETS!"; that at that time, persons who remained in the roadway were arrested; and that during the time that police officers were attempting to arrest persons who initially went into the roadway, the remaining thousands of demonstrators flooded the street and proceeded to march down Fifth Avenue. (Defendants' 56.1 Stmt. ¶¶ 25-31.) In response to these assertions, plaintiffs stated that none of the plaintiffs engaged in this conduct, but they did not dispute that such conduct occurred as described. (See Plaintiffs' Opp. 56.1 Stmt. ¶¶ 25-31.)

The parties disputed whether there was vehicular traffic on Fifth Avenue south of 59th Street. Defendants asserted that the crowds walking in the roadway interfered with vehicular traffic, caused significant safety hazards to the occupants of numerous vehicles, including cars, trucks, and public buses, and caused significant delays and disruptions to the flow of traffic in and around midtown Manhattan. (See Defendants' 56.1 Stmt. ¶ 33.) Plaintiffs asserted that there was no vehicular traffic on Fifth Avenue south of 59th Street because Fifth Avenue had been blocked by the police at 59th Street. (See Plaintiffs' Opp. 56.1 Stmt. ¶ 33.)

B. The Arrests of the Plaintiffs

In the course of the Shepard demonstration, 115 people, including the seven named plaintiffs, were arrested and charged with disorderly conduct. (See Defendants' 56.1 Stmt. ¶ 9; Plaintiffs' Opp. 56.1 Statement ¶ 187.) The six plaintiffs other than Leonard Gay were arrested as they stood or walked in the street. Although those six contended that they either were approaching a sidewalk when arrested, or that there was no room on the sidewalk, or that there were impediments to their reaching the sidewalk, there is no dispute that, when arrested, they were in a roadway. (See, e.g., Defendants' 56.1 Stmt. ¶¶ 65-67 (Bryant), ¶ 117 (Jessica Dyson), ¶ 82 (Maurice Cassidy), ¶¶ 103-104 (Joseph DeFilippis), ¶¶ 161-162 (Robert Takacs), ¶¶ 182-184 (Ulrik Trojaborg); corresponding paragraphs of Plaintiffs' Opp. 56.1 Stmt.)

Plaintiffs were kept in custody between 5 and 23 hours before being released. Bryant and Dyson were arrested at Fifth Avenue and 59th Street at approximately 6:30 p.m. They were taken to central booking and held in cells overnight. On the following day, October 20, 1998, Bryant was arraigned and was released at about noon. (See Declaration of Timothy Bryant dated October 22, 2002, ¶ 24.) He was tried on November 17, 1998, and was acquitted. (See Plaintiffs' Cross-Motion 56.1 Stmt. ¶ 7.) Dyson was arraigned on October 20, 1998, and released between 4:30 and 5:30 p.m. (See Declaration of Jessica Dyson dated October 23, 2002, ¶ 33.) On November 25, 1998, the charge...

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