Garcia v. Doe

• Decision Date: 21 August 2014
• Docket Number: Docket No. 12–2634–cv.
• 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, individually and in his official capacity, Defendants.
• Court: U.S. Court of Appeals — Second Circuit

779 F.3d 84

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, individually and in his official capacity, Defendants.^*

Docket No. 12–2634–cv.

United States Court of Appeals, Second Circuit.

Argued: April 22, 2013.

Decided: Aug. 21, 2014.

Rehearing Filed: Dec. 18, 2014.

Amended: Feb. 23, 2015.

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.

Opinion

GERARD E. LYNCH, Circuit Judge:

Plaintiffs-appellees, participants in a demonstration who were arrested after a confrontation with police at the Manhattan entrance to the Brooklyn Bridge, brought this action for false arrest in violation of their First, Fourth, and Fourteenth Amendment rights. Defendant-appellant police officers appeal from a ruling of the United States District Court for the Southern District of New York (Jed S. Rakoff, Judge ) denying their motion to dismiss the complaint pursuant to Rule 12(b)(6) on grounds of qualified immunity. By a divided vote, we initially affirmed the district court's judgment. On December 17, 2014, the Court entered an order granting appellants' petition for rehearing en banc and withdrawing our prior opinion. On appellants' petition for rehearing, we now conclude that appellants are entitled to qualified immunity. Accordingly, we GRANT the petition for rehearing, REVERSE the judgment below, and REMAND the case with instructions to dismiss the complaint.

BACKGROUND

Plaintiffs brought this action for false arrest under 42 U.S.C. § 1983 following their arrests during a demonstration in support of the Occupy Wall Street movement.¹ Plaintiffs 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 similarly incorporated into the Complaint by reference.² 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 event 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. As far as appears from the video excerpts, neither the demonstration nor the actions of the officers in controlling or facilitating it caused any significant disruption of ordinary traffic patterns during this stage of the march.

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 later 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 Bridge³ before the majority of the marchers arrived at the entrance.

While a steady stream of protesters continued onto the walkway, a group of protesters stopped and stood facing the police on the ramp constituting the vehicular entrance to the Bridge at a distance of approximately twenty feet. By this time, a large crowd of demonstrators had pooled behind that lead group. Given the size and density of the crowd, it would clearly have been impossible for vehicles to enter the bridge using the ramp at that location. Some of the protesters began chanting “Take the bridge!” and “Whose streets? Our streets!” At this point, all the video evidence confirms that the march had divided; one group was proceeding across the Bridge via the pedestrian walkway, while a second group had moved onto the vehicular roadway, where they were blocked by a line of police.⁴

An officer on the vehicular ramp stepped forward with a bullhorn and made an announcement. In the video taken by the 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 allege that these statement were “generally inaudible,” J. App'x at 166, and the video excerpts they have provided are consistent with that allegation. 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 some marchers at the front of the crowd heard this announcement, plaintiffs allege that the officers knew that their warnings or orders to disperse would not have been audible to the vast majority of those assembled. There was considerable noise and confusion at the scene.

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, though for the most part the marchers on the pedestrian walkway continued their progress on the walkway and did not enter the vehicular lanes. Protestors initially walked up the Bridge via the first (northernmost) entry ramp, but they eventually blocked the second and third ramps as well and occupied all of the Bridge's eastbound traffic lanes, preventing any cars from moving onto the Bridge in that direction.

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 also inaudible. Officers blocked movement in both directions along the Bridge roadway 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.” J. App'x 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...