Hershey v. Goldstein
| Decision Date | 09 April 2013 |
| Docket Number | No. 12 Civ. 3853(PAE).,12 Civ. 3853(PAE). |
| Citation | 938 F.Supp.2d 491 |
| Parties | Richard HERSHEY, Plaintiff, v. Matthew GOLDSTEIN, Chancellor and Chief Executive Officer of the City University of New York; Ricardo R. Fernandez, President of Lehman College; Domenick A. Laperuta, Lehman College Director of Public Safety; Vincent Zucchetto, Executive Assistant to the Vice President for Student Affairs at Lehman College; Esdras Tulier, Special Counsel to the President of Lehman College; CUNY Public Safety Officer Edwin Freytes, Shield No. 470; CUNY Public Safety Officer Irizariz, Shield No. 353; CUNY Public Safety Sergeant Gallan, Shield No. 209; CUNY Public Safety Lieutenant Cruz, Shield No. 120; John Does; and Richard Roes, Defendants. |
| Court | U.S. District Court — Southern District of New York |
OPINION TEXT STARTS HERE
Jeffrey Adam Rothman, Attorney at Law, New York, NY, for Plaintiff.
William James Taylor, Jr., Office of the Attorney General, New York, NY, for Defendants.
Plaintiff Richard Hershey (“Hershey”) brings this lawsuit under 42 U.S.C. § 1983 against various officials and administrators of Lehman College (“Lehman”), the Chancellor and Chief Executive Officer of the City University of New York (“CUNY”), and a collection of CUNY Public Safety officers (collectively, “defendants”), alleging that defendants violated his rights under the United States Constitution, including the First, Fourth, and Fourteenth Amendments, in connection with restrictions imposed on his leafleting on the Lehman campus and in certain areas outside of the campus gates. Also as a result of these restrictions, and his subsequent arrest outside of the campus gates, Hershey brings claims of assault and battery, malicious prosecution, abuse of process, negligence, and violations of the New York State Constitution. Defendants move to dismiss for failure to state a claim, pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, that motion is granted in part and denied in part.
This action arises out of Hershey's leafleting activities on and near the campus of Lehman, a senior liberal arts college in the CUNY system. Hershey is a vegetarian advocate who devotes much of his time to distributing free, educational booklets advocating the supposed ethical and nutritional benefits of a plant-based diet. Specifically at issue in this action are two distinct but related instances of leafleting on May 16, 2011: Hershey's leafleting (1) on a main walkway on Lehman's campus, and, immediately afterwards, (2) just outside the Lehman gates, which resulted in his being arrested for trespassing. The Court reviews the facts underlying both the on-campus and off-campus leafleting activity in turn. The Court also reviews later events relating to Hershey's post-arrest interactions with school officials regarding the preservation of evidence and Lehman's on-campus leafleting policy, and the criminal proceedings against Hershey stemming from his arrest.
On the morning of May 16, 2011, Hershey stationed himself on the main public walkway in the middle of Lehman's campus to hand out leaflets on behalf of a non-profit organization called Vegan Outreach. Am. Compl. ¶¶ 13, 16. Many students accepted leaflets from Hershey when passing by him on the walkway. Taylor Decl., Ex. B–1. As Hershey continued to distribute his leaflets, Public Safety Officer Edwin Freytes (a named defendant) approached Hershey and informed him that “he needed permission from the [Lehman] administration in order to hand out materials.” Am. Compl. ¶ 17. Freytes clarified that he was not responding to any complaint about Hershey; upon Hershey's request, he escorted Hershey to defendant Vincent Zucchetto, Executive Assistant to the Vice President for Student Affairs at Lehman, whom Freytes identified as the appropriate person for Hershey to ask about obtaining permission to leaflet. Id. ¶¶ 18–20.
Zucchetto refused to grant such permission. Id. ¶ 21. In fact, during his meeting with Hershey, Zucchetto represented to Hershey that “he was not allowed to leaflet on the Lehman College campus, and that the campus was private property.” Id. Unconvinced, Hershey replied that Lehman was public and state-funded, and he requested from Zucchetto a copy of Lehman's on-campus leafleting policy. Id. ¶ 22. Zucchetto then directed Hershey that he would need to make his request in writing, which Hershey offered to do while still in Zucchetto's office. Id. ¶¶ 23–24. However, Zucchetto stated that he would not respond to Hershey's request that day, and Freytes ordered Hershey to leave the office before he could briefly write out the request. Id. ¶¶ 25–26. Although denying Hershey permission to leaflet on campus, Zucchetto and Freytes represented to Hershey that he “had permission to hand out his booklets on the sidewalk outside any of the college's gates.” Id. ¶ 28. After the meeting with Zucchetto, Freytes escorted Hershey off of the campus. Id. ¶ 29; Taylor Decl. Ex. B–2.
Hershey's off-campus leafleting activity is best explained in three parts: (1) his first stint of off-campus leafleting, and public safety officers' response thereto; (2) his arrest outside of the campus gates and detainment in the public safety office; and (3) his second stint of off-campus leafleting, following his arrest.
After his meeting with Zucchetto, Hershey sought out the most student-accessible off-campus spot from which to hand out booklets. Id. ¶ 30. He settled on the intersection of Paul Avenue and Bedford Park Boulevard, occupying the sidewalk in front of Lehman's entrance. Id. As made clear in the third and fourth video segments defendants filed with the Court, and which the Amended Complaint incorporates by reference, at this intersection sits a public sidewalk in front of, and running alongside, the main gate to campus. Id. ¶ 34; Taylor Decl. Ex. B–3. A driveway entrance to, and exit from, the campus crosses and is perpendicular to this sidewalk. Am. Compl. ¶ 35; Taylor Decl. Ex. B–3. Judging from the video, this intersection generates significant foot traffic, and, from time to time, vehicles turn onto the driveway to enter campus. Taylor Decl. Ex. B–3.
Once situated, Hershey started to distribute his booklets, “peaceably,” on the sidewalk in front of the campus gate. Am. Compl. ¶ 31. Instead of standing in one spot to leaflet, Hershey paced up and down the sidewalk, frequently crossing the driveway, Taylor Decl., Ex. B–3, to “approach[ ] individuals who were walking in the vicinity of the campus gate,” Am. Compl. ¶ 32. Hershey did not force leaflets onto anyone and “never pressed the issue” with uninterested passers-by. Id. ¶ 33.
No more than 11 minutes after he started leafleting in front of the campus gate, Hershey was interrupted by campus authorities again.2Id. ¶ 34. Public Safety Officer Irizariz (a defendant) approached Hershey and told him that he “was not allowed to leaflet there,” instead directing him to leaflet adjacent to a food cart several yards east of the main gate to campus. Id.; Taylor Decl., Ex. B–3. The food stand was on a bridge on Bedford Park, in a “narrow area” that Hershey did not find suitable for leafleting mainly because he did not want to cause any additional congestion or inconvenience to pedestrians. Am. Compl. ¶ 56. Hershey alleges that Irizariz's statement “had nothing to do” with the driveway's intersecting part of the area of the sidewalk on which Hershey was leafleting. Id. ¶ 35. Nor, Hershey alleges, did Irizariz offer him the option of leafleting on the public sidewalk west of the campus gate and driveway, in the opposite direction of the bridge and food cart. Id. ¶ 36. Hershey alleges that Irizariz's request “was entirely arbitrary,” and that “no explanation was given as to why [Hershey] should have to leaflet” on a narrow walkway next to a food truck (which, contrary to Hershey's precepts, served meat). Id. ¶ 37. Hershey also claims that leafleting in this “constricted” area “might potentially cause congestion of pedestrian traffic and inconvenience to pedestrians, which [Hershey] specifically did not want to do.” Id. ¶ 56. Accordingly, Hershey told Irizariz that “he was within his rights to leaflet” where he had been leafleting, and he continued to distribute his materials in the same spot. Id. ¶ 38.
Following this exchange, Public Safety Lieutenant Cruz (a defendant) approached Hershey and repeated Irizariz's order that Hershey “needed to stand by the food stand.” Id. ¶¶ 39–40. Hershey alleges that this directive was arbitrary, unrelated to the driveway's intersecting the sidewalk in front of the gate, and that Cruz did not offer him the option to leaflet west of the gate. After Cruz left, Hershey alleges, he moved to the west of the gate. Id. ¶¶ 41–44.3
A few minutes later, a team of public safety officers, including Cruz, Freytes, Irizariz, and Public Safety Sergeant Gallan (all defendants) pulled up to the intersection in front of the gate in sports utility vehicles, got out of their cars, and surrounded Hershey, who was standing to the west of the gate and driveway area. Id. ¶¶ 45–46. Cruz advised Hershey that he would be arrested if he did not leave. Id. ¶ 47. Hershey allegedly replied that he was standing on a public New York City sidewalk, not Lehman property, and that “he had a First Amendment right to peaceably hand out his literature on that public sidewalk.” Id. ¶ 48. He also requested that he and the public safety officers call the New York City Police Department to clarify this point. Id. ¶ 49. Cruz replied that “that was what they were going to do (i.e., call the New York City Police Department).” Id. ¶ 50.
However, Hershey alleges that their discussion morphed into a forcible and unlawful arrest. He claims that Irizariz “forcibly grabbed” him while Cruz ...
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