Black Lives Matter v. Town of Clarkstown

• Citation: 354 F.Supp.3d 313
• Decision Date: 14 November 2018
• Docket Number: No. 17-cv-6592 (NSR),17-cv-6592 (NSR)
• Parties: BLACK LIVES MATTER, Jerlyne Calixte Individually and as a Member of Black Lives Matter, Vanessa Green Individually and as a Member of Black Lives Matter, Dominique McGregor Individually and as a Member of Black Lives Matter, Dr. Weldon McWilliams IV Individually and as a Member of Black Lives Matter, Everett Newton Individually and as a Member of Black Lives Matter, Plaintiff, v. The TOWN OF CLARKSTOWN, Michael Sullivan Individually and in His Official Capacity as Chief of Police of the Town of Clarkstown, Stephen Cole-Hatchard Individually and in His Official Capacity as a Town of Clarkstown Police Sergeant and Director of the Strategic Intelligence Unit, John and Jane Doe Individually and in Their Official Capacities as Members of the Strategic Intelligence Unit for the Town of Clarkstown Police, Defendants.
• Court: U.S. District Court — Southern District of New York

354 F.Supp.3d 313

BLACK LIVES MATTER, Jerlyne Calixte Individually and as a Member of Black Lives Matter, Vanessa Green Individually and as a Member of Black Lives Matter, Dominique McGregor Individually and as a Member of Black Lives Matter, Dr. Weldon McWilliams IV Individually and as a Member of Black Lives Matter, Everett Newton Individually and as a Member of Black Lives Matter, Plaintiff,

v.The TOWN OF CLARKSTOWN, Michael Sullivan Individually and in His Official Capacity as Chief of Police of the Town of Clarkstown, Stephen Cole-Hatchard Individually and in His Official Capacity as a Town of Clarkstown Police Sergeant and Director of the Strategic Intelligence Unit, John and Jane Doe Individually and in Their Official Capacities as Members of the Strategic Intelligence Unit for the Town of Clarkstown Police, Defendants.

No. 17-cv-6592 (NSR)

United States District Court, S.D. New York.

Signed November 14, 2018

William Otis Wagstaff, III, Law Office of William O. Wagstaff, III P.C., White Plains, NY, for Plaintiff.

Allison Michelle Holubis, John Martin Flannery, Wilson Elser, Moskowitz Edelman & Dicker LLP, White Plains, NY, Steven Charles Stern, Chelsea Ella Weisbord, Leo Dorfman, Sokoloff Stern LLP, Carle Place, NY, Adam Love, Law Offices of Cabot J. Marks, New York, NY, Mark William Blanchard, City of Yonkers Office of The Corporation Counsel, Yonkers, NY, for Defendants.

OPINION & ORDER

NELSON S. ROMAN, United States District Judge

Plaintiffs Black Lives Matter, Jerlyne Calixte, Vanessa Green, Dominique McGregor, Weldon McWilliams IV, and Everett Newton bring this action against Defendants Town of Clarkstown, Michael Sullivan individually and in his official capacity, and Stephen Cole-Hatchard individually and in his official capacity in the Amended Complaint ("Amended Complaint," ECF No. 28). Plaintiffs claim that they are entitled to relief pursuant to 42 U.S.C. § 1983 for Defendants' violations of the First and the Fourteenth Amendments.¹ Defendants each move to dismiss Plaintiffs' Amended Complaint under Federal Rules of Civil Procedure Rules 12(b)(1) and 12(b)(6) (ECF Nos. 40, 43, & 48). The Court will address the motions together in this Opinion.

For the following reasons, Defendants' motions are GRANTED in part and DENIED in part.

BACKGROUND

The following facts are derived from the Amended Complaint or matters of which the Court may take judicial notice and are accepted as true for the purposes of this motion.

On or about April 17, 2013, County of Rockland and Defendant Clarkstown entered into an inter-municipal agreement to form the Rockland County Intelligence Led Policing and Prosecution Center ("SIU") to "monitor, collect and share data regarding criminal activity as authorized by the Omnibus Crime Act, 28 CFR Part 23 et seq. and the Constitutions of the United States and the State of New York."² (Compl. ¶ 18.) Starting as early as January 2015, with the knowledge and consent of Defendant Sullivan as the Chief of Police and Defendant Cole-Hatchard as the SIU director, the SIU "engaged in unlawful surveillance of African American groups, the Rockland County Sheriff, a Clarkstown Town Judge, and citizens of the County of Rockland, solely based upon these individuals' race, social and/or political positions." (Id. ¶¶ 21, 23, & 26.) One of the groups subjected to surveillance was the Rockland County branch of Black Lives Matter.

In connection with this surveillance, as early as January 1, 2015, SIU and the Rockland County District Attorney's Office issued monthly reports on the number of electronic investigations established, the groups targeted for surveillance, and the number of alerts received and reviewed. (Id. ¶¶ 27, 29.) According to the November 2015 Report, the "Black Lives Matter Movement" was one of the groups subjected to electronic surveillance which included, but was not limited to, searching public social media information and categories such as gangs, violence, terrorism, heroine initiative, and police riots.³ (Id. ¶ 30.) The November 2015 Report also indicated that SIU conducted electronic surveillance on two Black Lives Matter Movement members and found no criminal misconduct or threat of criminal conduct from Black Lives Matter or those two individuals. (Id. ¶ 31.) The report does not "reflect any justifiable basis to conduct such surveillance as mandated by 28 CFR Part 23.20(a) and (b)." (Id. ) The SIU's December 2015 report is similar to the November 2015 report except that it indicates that SIU used electronic surveillance on six members of the Black Lives Matter Movement. (Id. ¶ 33.) Once again, no criminal misconduct was found on the part of Plaintiff Black Lives Matter or any of the six members, and there was no legitimate basis for the surveillance. (Id. ) Within forty-five minutes of receiving the December 2015 report, the Rockland County District Attorney's Office emailed Defendant Cole-Hatchard, "I mentioned before, you really should not have Black Lives Matter listed as a target for surveillance." (Id. ¶ 35.)

On or about July 11, 2016, all of the named Plaintiffs participated in a peaceful rally at which Plaintiff McWilliams spoke. (Id. ¶ 36.) During this rally, all Plaintiffs observed snipers from the Clarkstown police department on a nearby roof. (Id. ¶ 36 – 38.) Plaintiff Green saw a red sniper rifle dot appear on Plaintiff McWilliams during the speech. (Id. ¶ 36.) This incident "resulted in the chilling of [Plaintiffs'] first amendment exercise of free speech." (Id. ¶ 38.)

Following this incident, at least one Clarkstown employee identified the Clarkstown police department's actions as illegal and stated that Plaintiffs were the victims of this illegal conduct. Town of Clarkstown Supervisor George Hoehmann wrote an August 26, 2016 letter to the United States Attorney's Office "[w]ith the unanimous support of the [Clarkstown] Board ... to report evidence of what appears to be illegal profiling by the Clarkstown Police Department." (Id. ¶ 39.) Mr. Hoehmann's letter goes on: "The foregoing evidence ... reflects that despite being admonished to the contrary, Sgt. Cole-Hatchard and the Clarkstown SIU were conducting illegal electronic surveillance on members of the Black Lives Matter Movement without any justifiable legal basis in violation of Federal Law." (Id. )

According to Plaintiffs, SIU's illegal surveillance of Plaintiffs was part of Defendant Clarkstown's custom and practice of conducting illegal surveillance of groups and individuals based on race and political views in order to chill First Amendment speech.

Around July 2015, SIU learned of the existence of "WE THE PEOPLE," an African American community group in Rockland County with no criminal records or history of violence, and that the group planned to sponsor a play called "A CLEAN SHOOT?" (Id. ¶ 41.) Advertisements for the play featured an image of a police car with a "white subject pointing a handgun out of the vehicle window." (Id. ) SIU conducted an electronic investigation on WE THE PEOPLE in early August 2015 and generated an intelligence report on the group and its members even though there was no evidence that any of the members of WE THE PEOPLE were engaged in or were reasonably suspected to engage in criminal activity. (Id. 44 – 46.) WE THE PEOPLE learned of the intelligence report on August 31, 2016, when it was contacted by NBC on Facebook. (Id. ¶ 49.) "SIU racial [sic] profiled and illegal [sic] surveilled ‘WE THE PEOPLE’ ... because ‘WE THE PEOPLE’ exercised its First Amendment right to express their views through sponsoring the play." (Id. ¶ 50.)

The Clarkstown Supervisor also fell victim to Defendant Clarkstown's custom of illegal surveillance. Mr. Hoehmann, Clarkstown Supervisor, ran in the November 2015 election on a platform for fiscal reform which would presumably have impacted the Clarkstown police budget. (Id. ¶ 52.) After Mr. Hoehmann won the election, SIU began conducting surveillance on his social media to gather information to use to oppose Mr. Hoehmann's proposed review and reform of the police department and to identify those who supported Mr. Hoehmann's reforms. (Id. ¶¶ 53 – 54.) As part of this surveillance, the SIU gathered social media posts from approximately twenty Clarkstown residents who were in favor of fiscal reform of the police department, and none of these individuals were suspected of criminal activity. (Id. ¶ 55.) In its answer to Defendant Sullivan's suit against Defendant Clarkstown, a separate case from this action, Defendant Clarkstown admitted that SIU surveillance and assets were illegally used to attack political enemies, including Mr. Hoehmann. (Id. Ex. C.)

In November 2015, Rockland County Sheriff Lou Falco, who Defendants Sullivan and Cole-Hatchard opposed, ran for reelection. (Id. ¶ 56.) On September 9, 2015, Defendant Cole-Hatchard forwarded to Defendant Sullivan a political attack strategy against Mr. Falco. (Id. ¶ 57.) Defendant Cole-Hatchard prepared the political attack strategy while he was on duty at the SIU. (Id. )

Defendant Clarkstown's custom of illegal surveillance was also used to target a judge. Clarkstown Judge Howard Gerber ran for reelection in November 2015 apparently while under investigation for potential judicial misconduct. (Id. ¶¶ 59 – 60.) While working for Defendant Clarkstown, Defendant Sullivan and the SIU prepared a strategy to defeat Judge Gerber. (Id. ¶¶ 60 – 61.) Judge Gerber was exonerated of any wrongdoing and did not represent a public safety threat, but Defendants, using SIU resources, persisted in pursuing an attack campaign against Judge Gerber for political purposes. (Id. ¶ 63.)

Based on these allegations, Plaintiffs claim that they are entitled to relief under § 1983 because Defendants violated Plaintiffs' First Amendment freedoms of speech and assembly and their Fourteenth Amendment due process rights. For relief, Plaintiffs request that the Court issue an injunction to prohibit Defendants from targeting Plaintiffs for...