Collins v. City of N.Y.

• Citation: 295 F.Supp.3d 350
• Decision Date: 29 March 2018
• Docket Number: 14–CV–08815 (AJN)
• Parties: Marilyn COLLINS et al., Plaintiffs, v. The CITY OF NEW YORK et al., Defendants.
• Court: U.S. District Court — Southern District of New York

295 F.Supp.3d 350

Marilyn COLLINS et al., Plaintiffs,

v.The CITY OF NEW YORK et al., Defendants.

14–CV–08815 (AJN)

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

Signed March 29, 2018

Gideon Orion Oliver, New York, NY, for Plaintiffs.

Andrew Joseph Lucas, Brachah Goykadosh, Joy Tolulope Anakhu, Amy Robinson, Dara Lynn Weiss, Lamar Devaughn Winslow, NYC Law Department, Office of the Corporation Counsel, New York, NY, for Defendants.

MEMORANDUM OPINION AND ORDER

ALISON J. NATHAN, District Judge:

This case arises out of arrests following an Occupy Wall Street demonstration that occurred in 2011. Plaintiffs bring claims under 42 U.S.C. § 1983 alleging violations of their constitutional rights against the Defendants, who are officers with the New York Police Department and the City of New York. Defendants move for summary judgment on all claims. The Court grants summary judgment on nearly every claim but concludes that genuine issues of material fact remain regarding the claims of deprivation of a right to a fair trial brought by two of the Plaintiffs.

I. Background

A. Demonstration and Arrests

On November 5, 2011 on Occupy Wall Street demonstration occurred in the area around the courthouse at 60 Centre Street and Foley Square in New York, New York. Pl. Affirmative 56.1 Statement ("Pl. 56.1"), Dkt. No. 102, ¶ 1; Def. 56.1 Statement ("Def. 56.1"), Dkt. No. 95, ¶¶ 1–2; Pl. Response to Def. 56.1 ("Pl. Resp."), Dkt. No. 103, Resp. 1, 2. Plaintiffs Shirazi, Heinz, LaPenne, Collins, A. Weisenhaus and C. Weisenhaus were participants in the demonstration, and Plaintiff Maclean was a volunteer Legal Observer with the National Lawyers Guild—New York Chapter who was present during the demonstration. Pl. 56.1 ¶¶ 81–82; Pl. Resp. 1. Defendant Anger was the "NYPD Incident Commander in charge of subordinate officers policing the [Occupy Wall Street] demonstration" on November 5. Pl. 56.1 ¶ 1. Demonstrators formed a crowd on the sidewalk in front of 60 Centre Street but were kept off the steps of the courthouse by police officers issuing verbal warnings. Def. 56.1 ¶¶ 15–16, 18; Pl. Resp. 16, 18.

At approximately 3:00 p.m., Anger ordered subordinates, including Defendant Zielinski, to direct all people on the sidewalk in front of 60 Centre Street to leave the area or face arrest due to an alleged concern that demonstrators were obstructing the sidewalk and causing some pedestrians to walk in the roadway. Pl. 56.1 ¶¶ 8–9; Def. 56.1 ¶¶ 23, 26; Pl. Resp. 23, 26; Def. Response to Pl. 56.1 ("Def. Resp."), Dkt. No. 108, at 4. Video taken between 2:58 p.m. and 3:02 p.m. does not show any pedestrians being forced to walk in the roadway. Def. Ex. U, Dkt. No. 94–23, at 0:00–4:18; Pl. 56.1 ¶ 7; Def. Resp. at 4. Defendant Zielinski gave a warning at approximately 3:05 p.m. through a bullhorn, stating "Ladies and gentlemen my name is Lt. Zielinski, I am with the Manhattan South Task Force, you are blocking pedestrian traffic. I am ordering you to leave the sidewalk. If you do so voluntarily no charges will be filed against you. If you refuse to leave you will be placed under arrest and charged with disorderly conduct." Def. 56.1 ¶ 26; Pl. Resp. 26; Def. Ex. U at 6:35–7:00. The parties dispute whether all demonstrators were able to hear this order. Def. 56.1 ¶ 27; Pl. Resp. 26, 27. From video of the event, it appears that Defendant Zielinski's initial order was intermittently drowned out by the playing of harmonicas and shouts from the crowd. See Def. Ex. U at 6:47–50, 6:55–58. Defendant Zielinski thereafter read several orders telling the crowd to leave the area. Def. Ex. U at 8:00–15, 8:52–9:10; Def. 56.1 ¶ 35; Pl. Resp. 35. The parties dispute whether Defendant Zielinski told the protestors that they were able to continue protesting across the street in Foley Square. Pl. 56.1 ¶¶ 13–14, 18; Def. Resp. at 5–7.

Following these orders by Defendant Zielinski, Defendant Cooke proceeded to walk through the crowd, issuing orders from a bullhorn that included "Folks we need you to clear the sidewalk, thank you. Folks you have to clear the sidewalk, thank you. Folks we have to clear the sidewalk thank you." Def. Ex. U at 10:09–10:25; Def. 56.1 ¶¶ 41–44; Pl. Resp. 41. An unidentified third officer issued orders from the courthouse steps, stating "folks you have to clear the sidewalk, thank you." Def. Ex. U at 10:55–11:36, 11:55–12:17; Def. 56.1 ¶ 45; Pl. Resp. 45.1. In response to these orders, the demonstrators began a chant of "We are pedestrian traffic." Def. Ex. U at 10:54–11:10; Pl. Resp. 46.

Over the following several minutes, officers gave a series of other warnings. Defendant Zielinski announced through a bullhorn "Ladies and gentlemen you're going to have to leave this area. Right now it's temporarily closed. Right now you have to leave the sidewalk. Right, because you're blocking the walkways, it's unsafe. You're blocking the walkway, you need to move. Right now it's a danger, it's a hazard, you need to move." Def. Ex. V, Dkt. No. 94–24, at 3:25–46; Def. 56.1 ¶ 48; Pl. Resp. 48. A few seconds later, Defendant Zielinski repeated "Ladies and gentlemen right now you need to clear the sidewalk, it's a hazard. You need to clear—it's temporarily closed, we don't want nobody to get hurt. Ladies and gentlemen, we need to you to move temporarily, start walking through, we don't want nobody to get hurt." Def. Ex. U at 12:13–23; Def. Ex. V at 4:00–15; Def. 56.1 ¶ 49; Pl. Resp. 49. Defendant Zielinski then announced "Ladies and gentlemen you need to clear the sidewalk. Right now it's temporarily closed, we don't want nobody to get hurt." Def. Ex. U at 12:25–31; Def. Ex. V at 4:29–35; Def. 56.1 ¶ 50; Pl. Resp. 50. Defendant Cooke announced through a bullhorn "Ladies and gentlemen you got to clear the sidewalk please. Ladies and gentlemen please clear the sidewalk, thank you. Ladies and gentlemen please clear the sidewalk." Def. Ex. U 12:37–51; Def. 56.1 ¶ 51; Pl. Resp. 51. He repeatedly ordered the sidewalks be cleared over the course of the next two minutes. Def. Ex. U at 12:58–14:37; Def. 56.1 ¶¶ 52–53, 62–63; Pl. Resp. 52, 53, 62, 63. Defendant Zielinski also made repeated announcements that the sidewalk was temporarily closed, and the demonstrators needed to "move on." Def. Ex. T, Dkt. No. 94–22, at 6:34–8:19 Def. Ex. U at 14:29–37; Def. Ex. V at 5:44–6:00; Def. 56.1 ¶¶ 58–59, 64–74; Pl. Resp. 58, 59, 64, 65, 66, 68, 69, 71, 72, 73, 74.

Defendant Zielinski attempted to confirm that officers standing near the back of the crowd could hear him before giving additional announcements. Def. Ex. U at 17:10–25, Pl. Resp. 83. Defendant Zielinski subsequently read an explicit arrest warning through a bullhorn, stating: "Okay, good afternoon ladies and gentlemen. My name is Lt. Zielinski and I am with the Manhattan South Task Force. You are obstructing pedestrian traffic and vehicular traffic. I am ordering you to leave this location. If you do so leave voluntarily no charges will be filed. If you do stay you will be charged with obstructing governmental administration and disorderly conduct." Def. Ex. U at 17:24–17:50; Pl. 56.1 ¶ 32; Def. 56.1 ¶ 84; Pl. Resp. 84. Shortly thereafter, Defendant Zielinski stated "Ladies and gentlemen, since you have refused to leave this roadway or sidewalk I am now ordering you arrest for the charge of disorderly conduct. If you interfere with an arrest and delay the opening of traffic or obstruct the roadway you will be charged with obstructing governmental administration. You will be fingerprinted and charged with the New York State Penal Law." Def. Ex. U at 18:06–18:31; Def. 56.1 ¶ 88; Pl. Resp. 88.

Defendant Zielinski then stopped in front of Plaintiffs A. and C. Weisenhaus, who were standing in the Centre Street bike lane at the corner of Centre Street and Pearl Street, see Def. Ex. U at 18:44–46; Def. Ex. Y, Dkt. No. 104–27, at 2:20–45, and stated "Okay, you're going to have to leave or you're going to be arrested. Let's go, you have to leave." He then grabbed C. Weisenhaus and stated, "Put your hands behind your back." Def. Ex. U at 18:39–55; Pl. 56.1 ¶¶ 37–38; Def. 56.1 ¶¶ 90–91; Pl. Resp. 90, 91. Defendant Zielinski assigned the arrest of C. Weisenhaus to Defendant Walker. Pl. 56.1 ¶ 39; Def. 56.1 ¶ 206; Pl. Resp. 206. Defendant Zielinski ordered Defendant Li to arrest A. Weisenhaus. Def. 56.1 ¶ 194; Pl. Resp. 194. Plaintiff C. Weisenhaus told the arresting officers that she had been confused by the police officers, and the officer responded either that she should not have been arrested or that the officer was not sure why she had been arrested. Pl. 56.1 ¶¶ 43–44; Def. Resp. at 15.

Defendant Zielinski again told the crowd that if they did not leave, they would be arrested. Def. Ex. U at 19:00–05; Def. 56.1 ¶ 94, Pl. Resp. 94. Plaintiffs Collins and LaPenne attempted to cross Centre Street to Foley Square to comply with the police orders. Pl. 56.1 ¶ 46. Either Defendant Zielinski or another officer then arrested Plaintiff LaPenne as she stood in the crosswalk at approximately 3:28 p.m. Def. Ex. U at 19:55; Def. Ex. W, Dkt. No. 94–25, at 1:42–58; Pl. 56.1 ¶ 48; Def. 56.1 ¶¶ 95, 175; Pl. Resp. 95, 175; Def. Resp. at 16.

Plaintiff Collins was arrested in the same crosswalk as Plaintiff LaPenne. Def. Ex. W at 1:51–59; Pl. 56.1 ¶ 47; Def. 56.1 ¶ 95. She was arrested by Defendant Zielinski and handed over to Defendant Sharma, who had observed Collins for a couple minutes prior to her arrest and who had asked Collins to "move along." Def. Ex. L ("Sharma Dep."), Dkt. No. 94–12, p. 68 ln. 3–22; Def. 56.1 ¶ 147; Pl. Resp. 147. Plaintiff Collins was arrested at approximately 3:30 p.m. Def. 56.1 ¶¶ 147–48; Pl. Resp. 147, 148.

Defendant Zielinski continued to repeat warnings that demonstrators needed to leave or they would be arrested after Collins was arrested. Def. Ex. U at 20:05–21:54; Def. Ex. W at 1:58–2:16; Def. 56.1 ¶¶ 96–97; Pl. Resp. 96, 97. Police then attempted to close the Pearl Street alley by expanding an orange mesh barrier from the...