Vives v. City of New York

• Decision Date: 24 November 2003
• Docket Number: No. 02 Civ. 6646SAS.,02 Civ. 6646SAS.
• Citation: 305 F.Supp.2d 289
• Parties: Carlos VIVES, Plaintiff, v. THE CITY OF NEW YORK; Raymond Kelly, Commissioner of the New York City Police Department; Ming Y. Li, a Detective of the New York City Police Department, and Manwai Lui, a Detective of the New York City Police Department, Defendants.
• Court: U.S. District Court — Southern District of New York

305 F.Supp.2d 289

Carlos VIVES, Plaintiff, v. THE CITY OF NEW YORK; Raymond Kelly, Commissioner of the New York City Police Department; Ming Y. Li, a Detective of the New York City Police Department, and Manwai Lui, a Detective of the New York City Police Department, Defendants.

No. 02 Civ. 6646SAS.

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

November 24, 2003.

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Christopher Dunn, Arthur Eisenberg, Donna Lieberman, New York Civil Liberties Union Foundation, New York, New York, for Plaintiff.

Katie O'Connor, Assistant Corporation Counsel, New York City Law Department, New York, New York, for Defendants.

OPINION AND ORDER

SCHEINDLIN, District Judge.

In this Information Age, Americans are bombarded daily with unsolicited communications by telephone, fax, email, and mail. The vast majority view these communications as, at a minimum, annoying — email boxes filled with spam, prerecorded advertisements left on telephone answering machines, mail slots jammed with credit card applications, catalogs and brochures.¹ Some of the communications go beyond annoying, and rise to the level of alarming — emails that threaten the recipient with harm if the email is not forwarded to a certain number of people, or warn the user that the contents of a computer are not secure from hackers and viruses unless a particular product is purchased and downloaded. This opinion addresses whether, consistent with the First Amendment, the government may limit or proscribe speech that is intended to annoy or alarm.

I. FACTS

Carlos Vives filed this action for declaratory and injunctive relief, as well as compensatory and punitive damages, alleging, inter alia, that his First and Fourth Amendment rights were violated when he was arrested pursuant to section 240.30(1) of the New York Penal Law ("section 240.30(1)").² Vives seeks a declaration that this statute is unconstitutional to the extent it authorizes the arrest of a person who mails nonthreatening materials, when such materials are mailed with the intent to "annoy" or "alarm." Vives also seeks an order enjoining the New York City Police Department ("NYPD") from arresting people who violate this law."³ Finally, Vives seeks compensatory and punitive damages pursuant to 42 U.S.C. § 1983 ("section 1983"), and New York common law. Vives now moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, and defendants cross move for summary judgment.

A. Background

Vives is a 66-year-old resident of New York City who resides with his mother and brother. For the past twenty years, Vives has mailed written materials regarding religious and political issues to thousands of people. The mailings include Vives's handwritten and typed statements, as well as copies of stories and other items taken from general circulation newspapers. Vives mails the materials to "people of the Jewish faith with the intent to alarm them about current world events that have been prophesied in the Bible, including the unification of the European countries into a single political and military entity." 8/21/03 Affidavit of Carlos Vives ("Vives Aff.") ¶¶ 2, 3, 4.

In early 2002, Vives sent his religious and political materials to Jane Hoffman, a candidate for New York State Lieutenant Governor.⁴ Vives, who had never previously mailed anything to Hoffman, learned about her in a Jewish publication. See id. ¶¶ 6, 8. The envelope in which the materials were sent was addressed to Hoffman, but the materials themselves were not addressed to anyone specifically, and were not accompanied by any personalized letter. Additionally, on the first page of the materials that he sent to Hoffman, Vives handwrote his first initial and last name, as well as his address. See Ex. A to the Vives Aff.; Ex. C to the O'Connor Dec.

On April 3, 2002, after Hoffman had received Vives's letter, defendant-detectives Ming Li ("Li") and Manwai Lui ("Lui") went to Hoffman's campaign office. Ademola Oyefesso, Hoffman's campaign manager, informed the detectives that Hoffman found Vives's mailing to be "alarming and/or annoying." Defendants' Memorandum of Law in Support of Their Motion for Summary Judgment ("Def.Mem.") at 5. Li prepared a complaint report which stated that Vives's letter to Hoffman "does not have any threaten [sic] wording on it. Most of the letter contains political and religious statements and photocopy of a cutout newspaper article." 4/3/02 NYPD Report, Ex. E to 8/25/03 Affirmation of Christopher Dunn, plaintiff's counsel ("Dunn Aff.").

At the instruction of Li's supervising lieutenant, at approximately 9:15 a.m. on April 6, 2002, Li and Lui went to Vives's home. After they identified themselves and asked for Vives, they were invited into the apartment. Li asked Vives whether he had "written a letter." 1/16/03 Deposition of Ming Li ("Li Dep."), Ex. E to the O'Connor Dec., at 69. Vives responded that he had written many letters. Li then asked Vives to accompany the detectives to the precinct. Vives asked why, and Li told him that the mayor wanted to see him. See id. Apparently neither Li nor Lui told Vives that he was being arrested. Vives believed that the officers were taking him to see Mayor Bloomberg. See 4/22/03 Deposition of Carlos Vives, Ex. D to the O'Connor Dec., at 140-41.

Vives eventually agreed to go to the precinct, though at first he expressed disbelief that Li and Lui were police officers with the NYPD, and called 911 to verify that they were not imposters. Vives then changed his clothes, took $337 with him, and left with the officers. Initially, Vives resisted being handcuffed and put in the unmarked police car, but he ultimately was cuffed and transported to the fifth precinct. See Defendants' Local Rule 56.1 Statement of Undisputed Facts ("Def. 56.1 Stmt.") ¶¶ 32, 34, 35, 37, 39, 42, 43, 46, 49-53; Plaintiff's Response to Defendants' Statement of Undisputed Facts Pursuant to Local Rule 56.1 ("Pl. 56.1 Res.") ¶¶ 32, 34, 35, 37, 39, 42, 43, 46, 49-53.

Once at the precinct, Vives was placed in a holding cell, and $300 of his $337 was turned over to the desk clerk. Li subsequently told Vives that he was being charged with aggravated harassment for sending materials to Hoffman. However, the District Attorney's office declined to prosecute Vives. See Def. 56.1 Stmt. ¶¶ 54-56; Pl. 56.1 Res. ¶¶ 54-56. At approximately 8:30 p.m. on the same day he was arrested, Vives was released. See Plaintiff's Local Rule 56.1 Statement of Proposed Findings of Fact ¶ 26; Defendants' Response to Plaintiff's Rule 56.1 Statement of Proposed Findings of Fact ¶ 26.

Since his arrest, Vives has continued to mail religious and political materials to members of the public and public officials. Because of the arrest, however, he now fears that he may be arrested again. Thus, although Vives feels that it is important for him to identify himself on his mailings, he no longer writes his name and address on the materials. See Vives Aff. ¶ 11. Moreover, on March 25, 2003, two NYPD police officers went to Vives's apartment and questioned him about his mailing of political and religious materials. They left without providing an explanation for their questions. See id. ¶ 13.

B. The Complaint

Vives alleges that his arrest, pursuant to section 240.30(1), violated his First and Fourth Amendment rights, as well as parallel rights guaranteed by Article I, sections 8 and 12 of the New York Constitution and New York common law. See First Amended Complaint ("Compl.") ¶¶ 34-41. Specifically, Vives claims that section 240.30(1) unconstitutionally proscribes protected speech, he was arrested for exercising his right to engage in protected speech, and any arrest premised on section 240.30(1) and his constitutionally protected conduct therefore lacked probable cause. Vives seeks compensatory and punitive damages, as well as a declaration that section 240.30(1) is unconstitutional to the extent that it proscribes speech that is "annoying or alarming," and an injunction prohibiting the NYPD Commissioner from enforcing section 240.30(1) against persons who engage in the "annoying or alarming" conduct that the statute purports to prohibit. See Compl. at ad damnum clause ¶¶ 2-4, 6, 7. Vives also seeks an injunction directing the defendants to "return to the plaintiff all documents reflecting his arrest and detention and ordering the defendants to expunge all computer information reflecting the plaintiff's arrest and detention." Id. ¶ 5.

II. APPLICABLE LAW

A. Summary Judgment Standard

Summary judgment should be granted only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). "An issue of fact is genuine `if the evidence is such that a jury could return a verdict for the nonmoving party.'" Gayle v. Gonyea, 313 F.3d 677, 682 (2d Cir.2002) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A fact is material if "it `might affect the outcome of the suit under the governing law.'" Id. (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505). Accordingly, the court's task is not to "weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249, 106 S.Ct. 2505.

"In determining whether a genuine issue of material fact exists, a court must resolve all ambiguities and draw all reasonable inferences against the moving party." Flanigan v. General Elec. Co., 242 F.3d 78, 83 (2d Cir.2001); see also Niagara Mohawk Power Corp. v. Jones Chem., Inc., 315 F.3d 171, 175 (2d Cir.2003). Summary judgment is inappropriate "if there is any evidence in the record that could reasonably support a jury's verdict for the non-moving party." Marvel Characters, Inc. v. Simon, ...