Garcia v. Doe

• Decision Date: 21 August 2014
• Docket Number: Docket No. 12–2634–cv.
• Citation: 764 F.3d 170
• Parties: Karina GARCIA, as Class Representative on behalf of herself and others similarly situated, Yari Osorio, as Class Representative on behalf of herself and others similarly situated, Benjamin Becker, as Class Representative on Behalf of himself and others similarly situated, Cassandra Regan, as Class Representative on Behalf of herself and others Similarly situated, Yareidis Perez, as Class Representative on behalf of herself and others similarly situated, Tyler Sova, as Class Representative on behalf of himself and others similarly situated, Stephanie Jean Umoh, as Class representative on behalf of herself and others similarly situated, Michael Crickmore, as Class Representative on behalf of himself and others similarly situated, Brooke Feinstein, as Class Representative on Behalf of herself and others similarly situated, Plaintiffs–Appellees, Marcel Cartier, as Class Representative on behalf of himself and others similarly situated, Plaintiff, v. Jane and John DOES 1–40, Individually and in Their Official Capacities, Defendants–Appellants, Raymond W. Kelly, individually and in his official capacity, City of New York, Michael R. Bloomberg, in his official capacity and individually, Defendants.
• Court: U.S. Court of Appeals — Second Circuit

764 F.3d 170

Karina GARCIA, as Class Representative on behalf of herself and others similarly situated, Yari Osorio, as Class Representative on behalf of herself and others similarly situated, Benjamin Becker, as Class Representative on Behalf of himself and others similarly situated, Cassandra Regan, as Class Representative on Behalf of herself and others Similarly situated, Yareidis Perez, as Class Representative on behalf of herself and others similarly situated, Tyler Sova, as Class Representative on behalf of himself and others similarly situated, Stephanie Jean Umoh, as Class representative on behalf of herself and others similarly situated, Michael Crickmore, as Class Representative on behalf of himself and others similarly situated, Brooke Feinstein, as Class Representative on Behalf of herself and others similarly situated, Plaintiffs–Appellees,Marcel Cartier, as Class Representative on behalf of himself and others similarly situated, Plaintiff,

v. Jane and John DOES 1–40, Individually and in Their Official Capacities, Defendants–Appellants,Raymond W. Kelly, individually and in his official capacity, City of New York, Michael R. Bloomberg, in his official capacity and individually, Defendants. ^*

Docket No. 12–2634–cv.

United States Court of Appeals, Second Circuit.

Argued: April 22, 2013.

Decided: Aug. 21, 2014.

Mara Verheyden–Hilliard (Andrea Hope Costello and Carl Messineo, on the brief), Partnership for Civil Justice Fund, Washington, D.C., for Plaintiffs–Appellees.

Ronald E. Sternberg, Assistant Corporation Counsel (Leonard Koerner and Arthur G. Larkin, Assistant Corporation Counsel, on the brief), for Michael A. Cardozo, Corporation Counsel of the City of New York, New York, New York, for Defendants–Appellants.

Before: CALABRESI, LIVINGSTON, and LYNCH, Circuit Judges.

Judge LIVINGSTON dissents in a separate opinion.

GERARD E. LYNCH, Circuit Judge:

Defendants-appellants ask us to definitively conclude, on the limited record before us on their motion to dismiss for failure to state a claim, that they are entitled to qualified immunity for their arrest of a group of demonstrators. Because we cannot resolve at this early stage the ultimately factual issue of whether certain defendants implicitly invited the demonstrators to walk onto the roadway of the Brooklyn Bridge, which would otherwise have been prohibited by New York law, we AFFIRM the judgment of the United States District Court for the Southern District of New York (Jed S. Rakoff, Judge ).

BACKGROUND

Plaintiffs commenced this action for false arrest under 42 U.S.C. § 1983 following their arrests for participating in a demonstration in support of the Occupy Wall Street movement. Although plaintiffs have not been able to conduct discovery, they attached five video excerpts and nine still photographs as exhibits to the Second Amended Complaint (the “Complaint”), which we consider when deciding this appeal, see DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir.2010). We also consider videos submitted by defendants, which plaintiffs concede are incorporated into the Complaint by reference. For purposes of this appeal, we take as true the facts set forth in the Complaint, see Almonte v. City of Long Beach, 478 F.3d 100, 104 (2d Cir.2007), to the extent that they are not contradicted by the video evidence.

I. The Protest and Plaintiffs' Arrests

On October 1, 2011, thousands of demonstrators marched through Lower Manhattan to show support for the Occupy Wall Street movement. The march began at Zuccotti Park in Manhattan and was to end in a rally at Brooklyn Bridge Park in Brooklyn. Although no permit for the march had been sought, the New York City Police Department (“NYPD”) was aware of the planned march in advance, and NYPD officers escorted marchers from Zuccotti Park to the Manhattan entrance to the Brooklyn Bridge (the “Bridge”), at times flanking the marchers with officers on motorscooters or motorcycles. Those officers issued orders and directives to individual marchers, at times directing them “to proceed in ways ordinarily prohibited under traffic regulations absent police directive or permission.” J. App'x at 165. The officers blocked vehicular traffic at some intersections and on occasion directed marchers to cross streets against traffic signals.

When the march arrived at the Manhattan entrance to the Bridge, the first marchers began funneling onto the Bridge's pedestrian walkway. Police, including command officials, and other city officials stood in the roadway entrance to the Bridge immediately south of the pedestrian walkway and, at least at first, watched as the protesters poured across Centre Street towards the Bridge. A bottleneck soon developed, creating a large crowd at the entrance to the Bridge's pedestrian walkway. While video footage suggests that the crowd waiting to enter the pedestrian walkway blocked traffic on Centre Street, defendants do not contend that they had probable cause to arrest plaintiffs for their obstruction of traffic at that point, as opposed to their obstruction of traffic on the Bridge roadway. Indeed, plaintiffs alleged in their complaint that the police themselves stopped vehicular traffic on Centre Street near the entrance to the bridge ¹ before the majority of the marchers arrived at the entrance to the Bridge.

While a steady stream of protesters continued onto the walkway, a group of protesters stopped and stood facing the police at the vehicular entrance to the Bridge at a distance of approximately twenty feet. Some of these protesters began chanting “Take the bridge!” and “Whose streets? Our streets!” An officer stepped forward with a bullhorn and made an announcement. In the video taken by NYPD's Technical Assistance Response Unit, the officer can clearly be heard repeating several times into the bullhorn: “I am asking you to step back on the sidewalk, you are obstructing traffic.”

Plaintiffs, ten protesters who purport to represent the class of all protesters arrested that day, allege that the officers knew that these statement were “generally inaudible.” J. App'x at 166. In a video provided by plaintiffs, recorded from roughly the second row of protesters, it is clear that protesters even at the front of the crowd twenty feet away could not make out the words of this announcement over the noise of the demonstration. Two minutes later the same officer announced into the bullhorn: “You are obstructing vehicular traffic. If you refuse to move, you are subject to arrest,” and “If you refuse to leave, you will be placed under arrest and charged with disorderly conduct.” While it is clear that at least one marcher at the front of the crowd heard this announcement, plaintiffs allege that the officers knew that they had not given any warnings or orders to disperse that would have been audible to the vast majority of those assembled.

A minute and a half after the second announcement, the officers and city officials in the lead group turned around and began walking unhurriedly onto the Bridge roadway with their backs to the protesters. The protesters began cheering and followed the officers onto the roadway in an orderly fashion about twenty feet behind the last officer. The protesters on the roadway then encouraged those on the pedestrian walkway to “come over,” and the videos show several protesters jumping down from the pedestrian walkway onto the roadway. When one such protester was told by someone still on the pedestrian walkway “Don't go into the street, you will get arrested,” he can be heard responding, “Whatever, they're allowing us to.” Officers initially blocked protesters from impeding the second and third entry ramps to the Bridge and the southernmost lane of traffic, but eventually both of these ramps and all lanes of traffic across the Bridge were blocked by the protesters.

Midway across the bridge, the officers in front of the line of marchers turned and stopped all forward movement of the demonstration. An officer announced through a bullhorn that those on the roadway would be arrested for disorderly conduct. Plaintiffs allege that this announcement was as inaudible as the previous announcements. Officers blocked movement in both directions along the Bridge and “prevented dispersal through the use of orange netting and police vehicles.” J. App'x at 173. The officers then methodically arrested over seven hundred people who were on the Bridge roadway. These individuals were “handcuffed, taken into custody, processed and released throughout the night into the early morning hours.” Id. at 174.

Plaintiffs allege that the officers “led the march across the bridge,” and that the marchers saw the officers' movement onto the roadway as an “actual and apparent grant of permission to follow.” J. App'x at 168. They allege that the combination of those officers in front “leading” the protesters onto the roadway and the officers on the side escorting them along the roadway led them to believe that the NYPD was escorting and permitting the march to proceed onto the roadway, as it had escorted and permitted the march through Lower Manhattan earlier in the day. Officers at the roadway entrance did not instruct the ongoing flow of marchers not to proceed onto the roadway. Other officers walked calmly alongside the protesters in the roadway and did not direct any protesters to leave the roadway. The named plaintiffs allege that they did not hear any warnings or orders not to proceed on the roadway, and understood their passage onto the Bridge roadway to have been permitted by defendants.² Several allege that they did not even realize they were on the roadway until they were already on it. Plaintiffs allege that “[p]rior to terminating the march when it was mid-way across the bridge, the police did not convey that they were going to revoke the actual and apparent permission of the march to proceed,” and that the officers therefore did not have probable cause to arrest them for...