Monahan v. City of New York

• Decision Date: 30 March 2022
• Docket Number: 20-cv-2610 (PKC)
• Parties: KEVIN MONAHAN, EMER MCKENNA, PABLO VARONA BORGES, ANTONIO SERNA and ROBERT LAMORTE, Plaintiffs, v. CITY OF NEW YORK, Defendant.
• Court: U.S. District Court — Southern District of New York

KEVIN MONAHAN, EMER MCKENNA, PABLO VARONA BORGES, ANTONIO SERNA and ROBERT LAMORTE, Plaintiffs,
v.
CITY OF NEW YORK, Defendant.

No. 20-cv-2610 (PKC)

United States District Court, S.D. New York

March 30, 2022

OPINION AND ORDER

P. Kevin Castel, United States District Judge.

The five plaintiffs in this case were arrested by members of the New York City Police Department (“NYPD”) during protests of September 17, 2012, which marked the one-year anniversary of the Occupy Wall Street Movement. All five were charged with disorderly conduct under section 240.20 of the New York Penal Law. The Manhattan District Attorney declined to prosecute the charges or consented to an adjournment in contemplation of dismissal.

Plaintiffs bring two claims against the City of New York (the “City”) pursuant to 42 U.S.C. § 1983. First, they assert that they were subject to false arrest in violation of the Fourth Amendment to the Constitution. Second, they assert that their arrests occurred because the City had an official policy, custom or practice of making unconstitutional arrests of protestors due to the City's deliberate indifference to the inadequate level of training given to members of the NYPD on the policing of sidewalk protests. See Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 690 (1978).

Discovery in this case is now closed, and each side moves for summary judgment in their favor on certain claims and defenses. First, plaintiffs move for summary judgment in

1

their favor on the false arrest claims of plaintiffs Kevin Monahan, Emer McKenna and Pablo Varona-Borges, while the City moves for summary judgment in its favor on the claims of those three plaintiffs, plus the claim of plaintiff Robert Lamorte. Neither side moves for summary judgment on the false arrest claim of a fifth plaintiff, Antonio Serna.^[1] Video clips are central to each side's position but they do not present a dispositive portrayal of the facts and circumstances leading to the arrests. The clips do show the actual arrests of the plaintiffs. Because the intensely fact-specific and disputed false arrest claims are not susceptible to summary adjudication, a jury must consider the videos and the competing inferences to be drawn from them, together with the testimony of the witnesses, arrest reports and other evidence.

On the issue of municipal liability, the City's motion for summary judgment will be granted. In deciding the City's motion, the Court assumes arguendo that plaintiffs were falsely arrested in violation of the Fourth Amendment. Drawing every reasonable inference in favor of plaintiffs as non-movants, the Court concludes that no reasonable trier of fact could find that their arrests were a product of the City's deliberate indifference to officer training. Plaintiffs have not pointed to evidence that would permit a reasonable trier of fact to conclude that the City was on notice that NYPD members were unconstitutionally making false arrests on disorderly conduct charges, to such an extent that the alleged failure to train officers amounted to an official policy, practice or custom. Plaintiffs also have not identified a specific training deficiency that is closely connected to their injuries. Far from being deliberately indifferent to member training, some of the evidence cited by plaintiffs reflects that senior NYPD leadership was attentive to the importance of training on the policing of large-scale protests.

2

Plaintiffs' summary judgment motion will therefore be denied in its entirety, and defendants' motion will be granted but only on the issue of municipal liability.

BACKGROUND.

On September 17, 2012, marchers gathered in lower Manhattan to mark the one-year anniversary of the Occupy Wall Street movement. (Def. 56.1 ¶¶ 2-3; Pl. 56.1 Resp. ¶¶ 2-3.) The five plaintiffs in this case were all present at the protest, and each of them was arrested and charged with disorderly conduct under New York Penal Law section 240.20.

As will be discussed in further detail below, Monahan and McKenna were arrested less than a minute apart. They were both in a group that had gathered near the entrance of an office building at 100 Broadway and were arrested as the NYPD was clearing sidewalk space in front of a TD Bank branch. (Def. 56.1 ¶¶ 3, 6; Pl. 56.1 ¶¶ 3, 6.) The video begins shortly before the NYPD cleared the sidewalk and about 30 seconds before Monahan's arrest. (Brocker Dec. Ex. A; Stecklow Dec. Ex. 175.) As depicted in the video, immediately prior to Monahan's arrest, he is standing directly in front of an NYPD sergeant who motions with her arms for the crowd to move back. (Brocker Dec. Ex. A at 0:27-0:30.) The video does not record any audible dispersal orders that were issued to the crowd, but a declaration submitted by Monahan's arresting officer states that a Captain Duffy issued dispersal orders through a bullhorn, as do Monahan's arrest records. (Pajak Dec. ¶¶ 8-9, at Docket # 44-3; Stecklow Dec. Ex. 170.) In his deposition testimony, Monahan testified that he did not know if he “heard anything specifically” because “[t]here was lots of shouting” but also that “I believe it was because the police ordered everybody to turn around and go the other way, and then upon turning around to go the other way we were surrounded by police.” (Stecklow Dec. Ex. 176 at 51.) Monahan was charged with disorderly conduct under New York Penal Law § 240.20(5) and (6),

3

and the Manhattan District Attorney's Office declined to prosecute him. (Stecklow Dec. Ex. 170.)

McKenna was arrested less than a minute after Monahan. (Brocker Dec. Ex. A at 1:20-1:40.) As shown in the video, she is standing calmly on the edge of the crowd, a few feet from where McKenna had been arrested. (Id.) According to the City, McKenna had ignored officer orders to disperse and was one of few individuals who remained after the crowd had retreated, characterizations that plaintiffs dispute. (Def. 56.1 ¶¶ 14-15; Pl. 56.1 Resp. ¶¶ 14-15.) The video shows officers bringing McKenna forward from the crowd of protestors and restraining her wrists with ties. (Ex. A at 1:20-1:40.) McKenna's arresting officer claimed that McKenna had been on the sidewalk for approximately twenty minutes prior to her arrest and was part of a crowd obstructing pedestrian movement on the sidewalk. (Stecklow Dec. Ex. 169.) McKenna was charged with disorderly conduct under section 240.20(5), and the charge was ultimately adjourned in contemplation of dismissal. (Id.)

Plaintiff Pablo Varona-Borges participated in the protest as part of a marching band called the Bread and Puppet Band. (Def. 56.1 ¶ 32; Pl. 56.1 Resp. ¶ 32; Pl. 56.1 ¶ 231; Def. 56.1 Resp. ¶ 231.) Video depicts a band playing “When the Saints Go Marching In” while under sidewalk scaffolding, although the band is largely obscured by marchers in the foreground. (Brocker Dec. Ex. I.) The parties do not dispute that Varona-Borges was waving a red-and-white flag and dancing, although the identity of the flag-waver is not apparent in the videos. (Pl. 56.1 ¶ 229; Def. 56.1 Resp. ¶ 229; Def. 56.1 ¶¶ 33-34; Pl. 56.1 ¶¶ 33-34; Brocker Dec. Exs. H, I.) At the start of the video, a white-shirted officer, likely signifying a rank of lieutenant or higher, can be heard announcing to the crowd through a bullhorn, “you will be placed under arrest, ” but any preceding words are not in the video clip. (Brocker Dec. Ex. H.) According to the City, Varona-

4

Borges and others in his group were obstructing access to the Wall Street subway station. (Def. 56.1 ¶ 37.) The City asserts that Deputy Inspector William Gardner arrested Varona-Borges due to his failure to move clear of the subway entrance. (Def. 56.1 ¶ 38.) A video depicts officers leading Varona-Borges out of a crowd and tying him at the wrists before they then lead him off camera. (Brocker Dec. Ex. I.) The video shows little, if anything, about Varona-Borges's actions prior to the point in time when he was led out of the crowd and arrested. (Brocker Dec. Ex. I.) He was charged with disorderly conduct under sections 240.20(5) and (6), and the charges were later adjourned in contemplation of dismissal. (Stecklow Dec. Ex. 163; Ex. 172 at 66.)

Plaintiff Robert Lamorte was arrested near the intersection of Beaver Street and William Street. (Brocker Dec. Exhibit E; Def. 56.1 ¶ 19; Pl. 56.1 Resp. ¶ 19.) Video shows Lamorte standing on the edge of a sidewalk amid a crowd of marchers and photographers. (Id.) Through a bullhorn, an officer tells the crowd, “You have to let traffic through. Everyone keep moving. Let's go. You're blocking the traffic. Everyone keep moving.” (Id. at 0:07-0:12.) As the camera pans, Lamorte briefly drops out of frame, and when he re-appears, he seems to be pacing in front of the crowd, shouting something unintelligible through cupped hands. (Id. at 0:14-0:16.) A white-shirted officer then places his hands on Lamorte's shoulders and Lamorte appears to drop to the ground. (Id. at 0:16-0:17.) The camera does not clearly depict the events immediately following, as it first pans over the crowd, and then shows the backs of NYPD officers and other protestors apparently being restrained. (Id. at 0:18-1:36.) Amid the commotion, Lamorte briefly appears on camera while lying on the ground. (0:40, 1:07.) Around the 1:36 mark of the video, Lamorte is partially visible on the far-left side of the screen, lying on the ground and apparently restrained at the wrists. (Id. 1:36-38.) He was charged with

5

disorderly conduct under section 240.20(5), and the charge was adjourned in contemplation of dismissal.

Serna, as to whom neither side seeks summary judgment, alleges that he was falsely arrested under section 240.20(5) and (6), and the charges were adjourned in contemplation of dismissal.

In addition to asserting that they were falsely arrested, plaintiffs urge that the arrests occurred as a result of the City's failure to train members of the...