Nicholas v. Bratton, 15-CV-9592 (JPO)

• Court: United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
• Citation: 376 F.Supp.3d 232
• Docket Number: 15-CV-9592 (JPO)
• Parties: Jason B. NICHOLAS, Plaintiff, v. William BRATTON, Police Commissioner, New York City Police Department, et al., Defendants.
• Decision Date: 26 March 2019

376 F.Supp.3d 232

Jason B. NICHOLAS, Plaintiff,
v.
William BRATTON, Police Commissioner, New York City Police Department, et al., Defendants.

15-CV-9592 (JPO)

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

Signed March 26, 2019

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Joel Laurence Kurtzberg, Merriam Mikhail, Landis C. Best, Cahill Gordon & Reindel LLP, New York, NY, for Plaintiff.

Mark David Zuckerman, NYC Law Department, New York, NY, for Defendants.

OPINION AND ORDER

J. PAUL OETKEN, United States District Judge

Plaintiff Jason B. Nicholas brings this civil rights action against Defendants the City of New York ("the City"), William Bratton, Stephen Davis, Eugene Whyte, and Michael DeBonis pursuant to 42 U.S.C. Section 1983 (" Section 1983"), alleging violations of his First, Fourth and Fourteenth Amendment rights. (Dkt. No. 126.) Before the Court now are cross-motions for summary judgment filed by Plaintiff and Defendants Davis and DeBonis (collectively, "Individual Defendants")¹ , as well as Defendants' motion to preclude the testimony and opinions of Plaintiff's expert witness Mickey Osterreicher from summary judgment and trial. (Dkt. Nos. 170, 180, 185.) For the reasons

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that follow, Plaintiff's motion for summary judgment is denied, the Individual Defendants' motion for summary judgment is granted in part and denied in part, and Defendants' motion to preclude Plaintiff's expert testimony is denied.

I. Factual Background

Familiarity with the background of this dispute is presumed based on this Court's prior opinions on Plaintiff's motion for a preliminary injunction, see Nicholas v. Bratton , No. 15 Civ. 9592, 2016 WL 3093997 (S.D.N.Y. June 1, 2016), Defendants' motions to dismiss, see Nicholas v. City of N.Y. , No. 15 Civ. 9592, 2017 WL 766905 (S.D.N.Y. Feb. 27, 2017) ; Nicholas v. Bratton , No. 15 Civ. 9592, 2018 WL 1054567 (Feb. 23, 2018), and Plaintiff's motion for leave to file a Second Amended Complaint, see Nicholas v. City of N.Y. , No. 15 Civ. 9592, 2017 WL 2537293 (S.D.N.Y. June 12, 2017). The additional facts detailed below are drawn primarily from the parties' Local Rule 56.1 statements (see Dkt. Nos. 193, 202), and are not subject to genuine dispute unless otherwise noted.

A. The Parties

Plaintiff Jason B. Nicholas is a self-described professional photojournalist who has done freelance work for various New York City-based media outlets since at least 2006. (Dkt. No. 193 ¶ 1.) In 2007, Nicholas first applied for and obtained a New York City Police Department ("NYPD")-issued press credential, and he has successfully applied to renew his credential at every two-year interval thereafter. (Dkt. No. 193 ¶ 4.) With the primary exception of the NYPD's eight-month confiscation of his credential following the events at issue in this suit,² Nicholas has been in possession of an NYPD press credential continuously since 2007. (Dkt. No. 193 ¶ 4; Dkt. No. 202 ¶ 81.)

During the times relevant to this action, Defendant Stephen Davis was NYPD's Deputy Commissioner of Public Information ("DCPI") (Dkt. No. 202 ¶ 2), and Defendant Michael DeBonis was a detective assigned to NYPD's DCPI Office (Dkt. No. 202 ¶ 1). The DCPI Office is the office that was responsible for the review and approval of Nicholas's applications for an NYPD-issued press credential. (Dkt. No. 193 ¶ 4; Dkt. No. 202 ¶ 4.)

Nicholas also asserts claims against three other Defendants: the City of New York, Eugene Whyte, and William Bratton. (Dkt. No. 126 ¶¶ 12, 14, 16, 164.) The Court previously bifurcated discovery with respect to Nicholas's Monell claims against the City (Dkt. No. 67), and none of these three parties are presently moving for summary judgment with respect to Nicholas's live claims against them. These three Defendants have, however, joined in the motion to preclude the testimony and opinions of Plaintiff's expert from summary judgment and at trial. (Dkt. No. 170.)

B. Issuance and Use of NYPD Press Credentials

The rules governing the issuance and use of NYPD press credentials are set forth in Title 38, Chapter 11 of the Rules of the City of New York. See 38 RCNY § 11-01 et seq. These rules provide that a

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bearer of a Press Card is entitled to (i) subject to safety and evidence preservation concerns, cross police, fire lines or other restrictions, limitations or barriers established by the City of New York at emergency, spot, or breaking news events and public events of a non-emergency nature where police, fire lines or other restrictions, limitations or barriers established by the City of New York have been set up for security or crowd control purposes, within the City of New York; and (ii) subject to space limitations, attend events sponsored by the City of New York which are open to members of the press.

Id. § 11-01(a).

Subsections (b) and (c) of Section 11-01 establish the eligibility criteria for the issuance of NYPD press credentials. Id. §§ 11-01(b)–(c). In relevant part, these subsections provide that in order to obtain an NYPD press credential, one must be a "member of the press" who has previously attended and reported from at least six City-sponsored events or New York City "emergency, spot or breaking news events and/or public events of a non-emergency nature" within the twenty-four month period preceding the application. Id. Defendant DeBonis testified at his deposition that during his four years working as a DCPI official tasked with reviewing applications for press credentials, he would issue a credential to an applicant as a matter of course upon confirming that the applicant met the eligibility criteria set out in Subsections (b) and (c) of Section 11-01. (Dkt. No. 193 ¶ 133; Dkt. No. 201-4 at 98:13–103:16; see also id. at 103:2–5 ("The criteria set forth in the rules is the qualifying material to obtain a press card. If someone obtains or meets that criteria qualifications [sic], they're granted a press card....").) The back of an NYPD-issued press credential provides that it "is the property of the New York City Police Department," and that "[i]t may be taken away by competent authority at any time." (Dkt. No. 202 ¶ 7; see also Dkt. No. 183-2.)

Both journalists and City officials have testified that bearers of NYPD press credentials are generally permitted to cross police and fire lines that bar public access to emergency or restricted areas unless they are given express orders not to do so. (Dkt. No. 193 ¶ 9.) The Rules of the City of New York require that "[w]hen the bearer's ability to cross police, fire lines or other restrictions, limitations or barriers established by the City of New York or attend events sponsored by the City of New York is denied, such denial must come from a supervising officer or a member of [NYPD's DCPI Office]." 38 RCNY § 11-01(a). NYPD has also required recipients of press credentials to sign a separate acknowledgment that they understand that "access pursuant to the Press Card does not include access to interior crime scenes or areas frozen for security purposes." (Dkt. No. 193 ¶ 9 (quoting Dkt. No. 183-1 at 6).)

With respect to access to non-emergency newsworthy events such as parades and press conferences, different hosting organizations have adopted varying policies with respect to requiring a press pass. (Dkt. No. 193 ¶ 8.) But it is undisputed that certain organizations, including, for example, NYPD itself, use possession of an NYPD press credential as a method for regulating access to their events. (Id. ; see also Dkt. No. 188-10 at 125; Dkt. No. 188-13 at 100; Dkt. No. 188-21 at 2 (City Law Department press release recognizing that "[m]any non-City entities also rely on the City press card to distinguish who is a member of the media").)

More generally, the parties dispute the extent to which possession of an NYPD press credential is, as a practical matter, a

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necessary prerequisite to obtaining work as a photojournalist in New York City. (See, e.g. , Dkt. No. 193 ¶¶ 136–47.)

C. Procedures Governing the Suspension or Revocation of NYPD Press Credentials

Since 2010, Chapter 11 of Title 38 of the Rules of the City of New York has provided a hearing procedure for challenges to any "suspension" or "revocation" of an NYPD press credential. (Dkt. No. 193 ¶ 159.) Specifically, Subsection (b) of Section 11-11 provides that where NYPD-issued "press credentials are summarily suspended, a hearing may be requested by the holder of the press credential and such hearing shall be provided no later than five (5) business days from the request." 38 RCNY § 11-11(b). Subsection (c) of Section 11-11 provides that where NYPD seeks a "revocation" of an NYPD-issued press credential, "a hearing shall be provided before such revocation shall take effect. However, if there has been a summary suspension of the press credential which is the subject of the revocation, the hearing for the suspension can also serve as the hearing required herein." Id. at § 11-11(c). The City is required to issue a written decision following any such hearing in the event that the City concludes that the...