Barry v. City of N.Y.

Decision Date21 March 2013
Docket NumberNo. 11 CV 5533(CLP).,11 CV 5533(CLP).
PartiesErnest Steve BARRY and Michael Burkhart, Plaintiffs, v. The CITY OF NEW YORK, et al., Defendants.
CourtU.S. District Court — Eastern District of New York

OPINION TEXT STARTS HERE

Arthur Eisenberg, New York Civil Liberties Union Foundation, Christopher T. Dunn, Mariko Hirose, New York Civil Liberties Union Claudia Angelos, New York University School of Law, New York, NY, for Plaintiffs.

Johana Castro, NYC Law Department, New York, NY, Carl Joseph Copertino, Department of Law, Paige Ann Evans, MTA New York City Transit Authority, Richard Schoolman, New York Transit Authority, Brooklyn, NY, for Defendants.

MEMORANDUM AND ORDER

CHERYL L. POLLAK, United States Magistrate Judge.

On November 14, 2011, plaintiffs Ernest Steve Barry (“Barry” or plaintiff) and Michael Burkhart (Burkhart) commenced this civil rights action, pursuant to 42 U.S.C. § 1983, against the City of New York, the New York City Transit Authority(“TA or defendant), and Officer Steven Dutes, a member of the New York City Police Department, alleging false arrest, assault, and battery, in violation of the plaintiffs' rights under the First, Fourth, and Fourteenth Amendments of the United States Constitution, and Article I, sections 6, 8, and 12 of the New York State Constitution. In addition to compensatory damages, attorneys' fees and costs, plaintiff Barry seeks a declaratory judgment that the TA's “ID Rule,” 21 N.Y.C.R.R. § 1050.6(d)(3), is unconstitutional because it is vague and because it requires people using the New York City transit system to carry identification documents.

By Notice of Motion dated July 23, 2012, plaintiff Barry moved for summary judgment against defendant TA. By Notice of Motion dated July 23, 2012, defendant TA cross moved, pursuant to Federal Rule of Civil Procedure 12(b)(1), 12(b)(6), and 12(c), to dismiss the Complaint for lack of standing and for failure to state a claim upon which relief could be granted. 1 For the reasons stated below, the Court grants plaintiff's motion for summary judgment and denies defendant's motion to dismiss.2

FACTUAL BACKGROUND

Plaintiff Barry is a longtime train enthusiast and editor of the Railfan & Railroad Magazine. (Pl.'s 56.1 Stmnt 3 ¶ 5; Barry Decl.4 ¶ 2; Def.'s 56.1 Resp.5 ¶ 5). On August 21, 2010, Barry and Burkhart were in New York to photograph the Nostalgia Train, a historic subway train operated by the Transit museum. (Pl.'s 56.1 Stmnt ¶ 6; Def.'s 56.1 Resp. ¶ 6; Barry Dep.6 at 33–35). Plaintiff and Mr. Burkhart spent the morning of August 21 photographing various subway trains, including the Nostalgia Train, and in the afternoon, they went to the Broad Channel subway stop where they took photographs while waiting for the Nostalgia Train to arrive. (Pl.'s 56.1 Stmnt ¶¶ 7–8; Def.'s 56.1 Resp. ¶¶ 7–8; Barry Dep. at 40, 42).

On August 21, 2010, Officers Steven Dutes, Nigel Balkaran, Joseph Brennan, and Lyndon Blakely were officers of the New York City Police Department (“NYPD”), responsible for enforcing the TA's rules and regulations. (Pl.'s 56.1 Stmnt ¶ 4; Def.'s 56.1 Resp. ¶ 4; Dutes Dep. at 14, 28; Balkaran Dep. at 18, 38; Brennan Dep. at 12, 37; Blakely Dep. at 22).7 While Barry and Burkhart were waiting for the Nostalgia Train, Officers Dutes and Balkaran approached Barry and Burkhart, and, according to plaintiff Barry, the officers demanded that the plaintiffs produce identification. (Pl.'s 56.1 Stmnt ¶¶ 9, 10).

Defendant admits that the officers approached Barry and Burkhart because a train crew member informed the officers that there were two men on the tracks taking photographs. (Def.'s 56.1 Resp. ¶ 9). Defendant claims that as Officer Dutes approached the plaintiff and Mr. Burkhart, he saw them running up the steps from the tracks and putting their equipment away. ( Id.; Dutes Dep. at 86). According to defendant, there was a sign at the location indicating that no one is allowed on the steps or on the tracks. (Def.'s 56.1 Resp. ¶ 9). Defendant contends that Officer Dutes told the plaintiffs that they were not allowed “down there” and that photography was not allowed in the subway system. ( Id. ¶ 10; Barry Dep. at 46). Plaintiff Barry then asked the officer to cite the specific ordinance that prohibited photography and asked him to call his supervisor. (Def.'s 56.1 Resp. ¶ 9; Barry Dep. at 46–47). The officer then informed plaintiff that no supervisor was necessary and he asked plaintiff for identification. (Def.'s 56.1 Resp. ¶ 9; Barry Dep. at 47).

Plaintiff claims that in response to Officer Dutes' demand for identification, Burkhart gave the officer his Pennsylvania driver's license, and Barry verbally identified himself by giving the officer his full name. (Pl.'s 56.1 Stmnt ¶¶ 10–12). Defendant contends that the officer did not “demand” identification and claims that although Barry verbally identified himself, he did so only after the officer requested identification from Barry three times. (Def.'s 56.1 Resp. ¶¶ 10–12). Defendant also claims that Barry “refused” to provide identification and tried to walk away after being asked to stop. (Def.'s 56.1 Resp. ¶¶ 11–12). Defendant claims that Burkhart's testimony supports defendant's claim that Barry did not initially comply with the officer's request for identification. Citing Burkhart's testimony, defendant contends that it was only after the officer put his hand on Barry to stop him from leaving that Barry gave the officer his name. ( Id. ¶ 12; Burkhart Dep.8 at 42). The officer testified that Barry said at least twice, “I don't have to give you ID.” ( Id.)

Barry claims that he did not give the officer an identification document, explaining that he did not have one with him at the time. (Pl.'s 56.1 Stmnt ¶ 13; Barry Dep. at 90; Dutes Dep. at 37). According to Barry, he believed that he did not have his driver's license with him at the time because he frequently travels without a license when he is on the subway system for an entire day of taking photographs.” (Barry Dep. at 48). Plaintiff claims that after Barry gave the officer his full name but did not produce an identification document, the officer handcuffed Barry, searched for his wallet, found the wallet in Barry's back pocket, and retrieved Barry's driver's license which was in his wallet. (Pl.'s 56.1 Stmnt ¶¶ 15, 16; Dutes Dep. at 42).

Defendant contends that plaintiff Barry simply told Officer Dutes that he did not have ID and that he did not have to give Officer Dutes ID, rather than “explain[ing] that he did not have an identification document with him.” (Def.'s 56.1 Resp. ¶ 13). Defendant further contends that the officer only handcuffed Mr. Barry after Barry “assumed a ‘fighting stance’ and ‘started getting very loud,’ stating ‘I can take photos anywhere I want’ and ‘I don't have to give you ID.’ ( Id. ¶ 15). Defendant asserts that Barry admitted that he was “irritated” because he had been told before that he could not take pictures.9 ( Id.; Barry Dep. at 52). The officer also denied that he searched Mr. Barry for his wallet. (Def.'s 56.1 Resp. ¶ 16). Instead, defendant claims that, after Officer Dutes had handcuffed Mr. Barry, Officer Dutes frisked Mr. Barry to find the wallet where plaintiff said it was located. ( Id.) The officer claims that he asked for Barry's identification because he felt that “giving ... his name was not good enough at the time, the way he was acting” ( id. ¶ 17; Pl.'s 56.1 Stmnt ¶ 17), and the officer also wanted to run a warrants check and record his information on the TA summons. (Def.'s 56.1 Resp. ¶ 17).

Plaintiff claims that he was detained in handcuffs until the officer finished running the warrants check and preparing the notices of violation. (Pl.'s 56.1 Stmnt ¶ 18). According to defendant, less than 5 minutes after placing Barry in handcuffs, an officer escorted Barry to a waiting area upstairs, where Barry sat on a bench while Officer Dutes completed the paperwork, which took approximately 10 to 15 minutes. (Def.'s 56.1 Stmnt ¶ 18).

Barry and Burkhart were each given a Notice of Violation (“NOV”) for “unauthorized photography” ( id. ¶ 21; Pl.'s 56.1 Stmnt ¶ 21), and Mr. Barry was given a NOV for failure to produce identification under the ID Rule. (Pl.'s 56.1 Stmnt ¶ 19; Def.'s 56.1 Resp. ¶ 19). The ID Rule provides in relevant part as follows:

All persons on or in any facility or conveyance of the authority shall: provide accurate, complete and true information or documents requested by New York City police officers or authority personnel acting within the scope of their employment and otherwise in accordance with law.

21 N.Y.C.R.R. § 1050.6(d)(3).

Plaintiff claims that the officer gave him the NOV because the officer believed that Mr. Barry had not complied with the officer's request for identification. (Pl.'s 56.1 Stmnt ¶ 20). Although defendant appears to concede that the officer gave Barry the violation because he refused to comply with the request for identification, defendant cites Officer Dutes' testimony as further explanation. (Def.'s 56.1 Stmnt ¶ 20). Specifically, according to Officer Dutes: [b]y walking away, putting his hands behind his back, the fighting stance, I have to ask him for ID, he was just like, I don't have ID, you know, so that's what I meant when I said he refused to comply.” ( Id.; Dutes Dep. at 51).10

Plaintiff alleges that Mr. Barry was directed to appear before the Transit Adjudication Bureau (“TAB”) on October 1, 2010, requiring him to travel to New York City and miss a day of work. (Pl.'s 56.1 Stmnt ¶¶ 22, 23). The TA denies any responsibility for his lost wages, and notes that Mr. Barry could have contested the NOV in writing. (Def.'s 56.1 Resp. ¶ 23; Def.'s Ex. B 11).

The TAB dismissed the NOV issued to Barry under the ID Rule based on the officer's failure to state a reason for the request for identification and it also dismissed the second Notice of Violation issued for the photography, noting that [i]t is not illegal ... to take...

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