In re N.Y.C. Policing During Summer 2020 Demonstrations

• Decision Date: 09 July 2021
• Docket Number: 21-cv-1904 (CM)(GWG),20-cv-8924 (CM)(GWG), 20-cv-10291 (CM)(GWG), 21-cv-533 (CM)(GWG), 20-cv-10541 (CM)(GWG), 21-cv-322 (CM)(GWG)
• Citation: 548 F.Supp.3d 383
• Parties: IN RE: NEW YORK CITY POLICING DURING SUMMER 2020 DEMONSTRATIONS
• Court: U.S. District Court — Southern District of New York

548 F.Supp.3d 383

IN RE: NEW YORK CITY POLICING DURING SUMMER 2020 DEMONSTRATIONS

20-cv-8924 (CM)(GWG)

20-cv-10291 (CM)(GWG)

20-cv-10541 (CM)(GWG)

21-cv-322 (CM)(GWG)

21-cv-533 (CM)(GWG)

21-cv-1904 (CM)(GWG)

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

Signed July 9, 2021

Andrew Brian Stoll, Stoll, Glickman & Bellina, LLP, Brooklyn, NY, for Cameron Yates.

Amy Robinson, Elissa Beth Jacobs, Dara Lynn Weiss, City of New York Law Department, New York, NY, for New York City.

Dara Lynn Weiss, City of New York Law Department, New York, NY, for Fausto Pichardo.

MEMORANDUM DECISION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS THE AMENDED COMPLAINTS

McMahon, United States District Judge.:

In these six consolidated cases, the plaintiffs allege serious police misconduct during protests for racial justice and police reform that occurred throughout the summer of 2020. The lawsuits allege, among other things, that the NYPD violated the First, Fourth and Fourteen Amendments to the U.S. Constitution in responding to the protests, and that officers used excessive and unnecessary force against nonviolent protestors, journalists, and bystanders. Plaintiffs claim that these responses are reflective of a pattern of unconstitutional conduct by the NYPD in responding to peaceful protests.

Before the Court is Defendants’ motion to dismiss the operative complaints filed in 20-cv-8924 (dkt. 54, "Payne A.C."), 20-cv-10291 (dkt. 38, "Sierra A.C."), 20-cv-10541 (dkt. 48, "Wood A.C."), 21-cv-322 (dkt. 52, "People A.C."), 21-cv-533 (dkt. 49, "Sow A.C."), and 21-cv-1904 (dkt. 43, "Yates Compl.").¹ (Dkt. 105.)

Defendants’ motion is GRANTED IN PART and DENIED IN PART.

BACKGROUND

I. Facts

The following summarizes only those facts pertinent to this motion to dismiss.

A. Protests Erupt Throughout New York City

On May 28, 2020, three days after George Floyd was killed by a police officer in Minneapolis, Minnesota, the first large-scale demonstration protesting police brutality erupted in New York City. Over 100 protesters gathered in Union Square in Manhattan, some of whom marched in the direction of City Hall. That day, over 70 protesters were arrested. (People Am. Compl. ¶ 52.)

The protests continued over the subsequent days throughout New York City's boroughs, including on May 29, May 30, and May 31. (People Am. Compl. ¶¶ 53-54.) I will refer to them, and to subsequent protests that are mentioned in various pleadings, as the Black Lives Matter, or BLM, protests.

Most of the complaints do not so much as suggest that persons other than the police engaged in any untoward behavior during these nightly protests. The Attorney General, as befits her office, does admit that there were instances of property damage and injuries to NYPD officers, although the complaint minimizes the seriousness of this misbehavior. (People A.C. ¶ 26.) And the plaintiffs in Wood allege, "In the first few days of protests, some isolated and much-publicized instances of theft and violence also occurred." (Wood. A.C. ¶ 32.) However, contemporaneous news reports – of which the Court cannot and will not pretend to be unaware – reported widespread looting, smashed windows, and other property damage connected to the New York City protests.² This conduct by persons who may have been protesters or who may have used the protests as a cover for criminal behavior was no different than what was going on during post-Floyd protests in Minneapolis, Portland, and elsewhere.³

On June 1, Mayor Bill de Blasio issued Emergency Executive Order 117 ("EO 117"), which imposed a curfew within New York City between the hours of 11:00 PM on June 1 and 5:00 AM on June 2. In a subsequent order, Emergency Executive Order 119 ("EO 119"), Mayor De Blasio expanded the nightly curfew to last from 8:00 PM until 5:00 AM, beginning on the evening of June 2 and ending on the morning of June 8. (Sow A.C. ¶¶ 73-74.) The orders exempted "essential workers," including "police officers, peace officers, firefighters, first responders and emergency technicians, [the homeless], [and] individuals travelling to and from essential work and performing essential work," from the curfew. (Goykadosh Decl., Ex. F (Dkt. 107-6) at 2.) Failure to comply would result in orders to disperse; individuals who knowingly violated the orders could be charged with a Class B misdemeanor which, under the City's administrative code, is punishable by a fine of no more than $500 or by imprisonment for no more than three months, or both. (Id. ; see N.Y.C. Admin. Code § 3-108.)

The protests continued at night despite the curfew orders. Several demonstrations occurred throughout Manhattan on June 1 and 2, in Manhattan and Brooklyn on June 3, in Manhattan, Queens, Brooklyn, and the Mott Haven neighborhood of the Bronx on June 4, and in Manhattan, Brooklyn, and Staten Island on June 5. Approximately 889 individuals were arrested at demonstrations between June 1 and June 6. (People A.C. ¶¶ 55-60.)

On June 7, Mayor de Blasio lifted the curfew orders, one day earlier than planned. (Sow A.C. ¶ 95.) Protests continued, mostly peacefully, until June 28, when hundreds of NYPD officers allegedly met protesters in Washington Square Park with violence and pepper spray. (People A.C. ¶¶ 61-62.)

Similar encounters occurred throughout the summer and fall of 2020. Among others: on July 28, NYPD officers allegedly interrupted a protest in the Kips Bay neighborhood of Manhattan, where they blocked protesters and pushed one protester into an unmarked van that drove away (id. ¶ 64); on September 26, hundreds of NYPD officers allegedly disrupted a demonstration in Washington Square Park, where they confiscated the property of the protesters and knocked some into the ground (id. ¶ 66); in the days immediately following the 2020 presidential election, NYPD officers surrounded and forcefully arrested protesters in the West Village, Union Square, and the Nolita neighborhood of Manhattan (id. ¶¶ 68-69); and on January 18, 2021, Martin Luther King Day, protesters who had marched from the Barclays Center in Brooklyn to City Hall Park were met by a large police presence that encircled protesters and used force to subdue and arrest them (id. ¶ 71).

B. The NYPD's Alleged Treatment of Protesters

Plaintiffs allege that they were subjected to unconstitutional mistreatment by NYPD officers during the encounters and after their arrests. On numerous occasions, Police used a tactic called "kettling" to surround, trap, and eventually arrest protesters, without first providing a warning or opportunity for them to leave the area. (Payne A.C. ¶¶ 2, 164-165; People A.C. ¶¶ 22, 4; Wood A.C. ¶ 44; Sierra A.C. ¶¶ 2, 27.) On nights when Mayor de Blasio's curfew orders were in effect, the police kettled protesters shortly before 8:00 PM so they had no ability to disperse, which resulted in their violating the curfew. (Payne A.C. ¶ 166.) Plaintiffs allege that police proceeded to beat protesters with batons, shove them with bicycles and pin them to the ground, injuring many. (Payne A.C. ¶¶ 2, 167; People A.C. ¶ 3, Sierra A.C. ¶¶ 66-69.) Plaintiffs further allege that arrested individuals were forcefully handcuffed and held for prolonged periods in overcrowded cells. (Payne A.C. ¶¶ 2, 126, 133, 147, 187, 198, 205, 216; People A.C. ¶¶ 244, 249-50, 404; Sierra A.C. ¶¶ 75-82, 94-97, 103, 110-114, 120-122.); and that police officers also used force to arrest persons who were observing rather than protesting, including medics in hospital scrubs, journalists with press credentials and legal observers in neon green caps. (Payne A.C. ¶¶ 54, 61-62, 97, 130, 161-69.) All these people were allegedly arrested without probable cause.

Plaintiffs further allege that the treatment of protesters was a result of the City's failure to confront a decades-long pattern of police misconduct during similar protests; the City turned a blind eye to unconstitutional policing during protests; and the NYPD failed adequately to train, supervise and discipline its officers in constitutionally-sound de-escalation tactics for policing protests. As a result, there has long been a widespread pattern and practice of police misconduct during First Amendment protected protests. (Payne A.C. ¶ 218; People A.C. ¶ 80.)

C. Plaintiffs’ Claims

Plaintiffs, in varying combinations, allege that the NYPD's treatment of protesters violates the First, Fourth, and Fourteenth Amendments to the U.S. Constitution. More specifically, they assert claims under 42 U.S.C. § 1983, premised on their allegations that the NYPD used excessive force to subdue protesters and observers and executed mass arrests without probable cause, in violation of the Fourth and Fourteenth Amendments. (The Sow plaintiffs also assert this claim under the Fifth Amendment.) Plaintiffs further assert that, in doing so, Defendants violated Plaintiffs’ right engage in constitutionally-protected First Amendment activities. Plaintiffs also allege that Defendants retaliated against them because of the content of their constitutionally-protected speech – a protest against alleged police misconduct in New York City and elsewhere.

Plaintiffs also assert numerous claims under New York State constitutional and common law, including state law tort claims for assault, battery, false arrest, negligence, negligent supervision and denial of medical treatment.

II. Procedural History

Five of the six actions are filed on behalf of individuals who were present at various demonstrations. See Payne v. De Blasio , No. 20-cv-8924; Sierra v. City of New York , No. 20-cv-10291; Wood v. De Blasio , No. 20-cv-10541; Sow v. City of New York , No. 21-cv-533; Yates v. New York City , No. 21-cv-1904. Payne and Yates were brought on behalf of a group of identified individuals and were deliberately not brought as class actions. Sierra, Wood and Sow were filed as class actions, with the named plaintiffs seeking to represent a class of individuals who were wronged by police conduct during the protests....