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FIGHTING FINEST, INC. v. BRATTON

September 6, 1995

FIGHTING FINEST, INC., et al., Plaintiffs, against WILLIAM BRATTON, current Commissioner, New York City Police Department; RAYMOND KELLY, former Commissioner, New York City Police Department, Defendants.

HONORABLE LEONARD B. SAND, U.S.D.J.


The opinion of the court was delivered by: LEONARD B. SAND

SAND, J.

 Plaintiffs in this action are Fighting Finest, Inc. ("FFI"), a not-for-profit corporation established to organize and operate an amateur boxing team composed of New York City police officers; current and retired New York City police officers who are members of FFI and who wish to continue to box under its aegis; and Carl Schroeder, President of FFI. Defendants are William Bratton and Raymond Kelly, current and former New York City Police Commissioner, respectively. Before the Court is a motion by defendant Bratton to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim on which relief can be granted. For the reasons set forth below, we grant the motion and dismiss the complaint as to both defendants. *fn1"

 On a motion to dismiss under Rule 12(b)(6), we accept as true the factual allegations of the complaint, Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984), and grant the motion only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief, Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). The facts alleged in plaintiffs' complaint are as follows:

 In or about 1983, plaintiff Carl Schroeder organized a boxing team for New York City police officers. Complaint, dated January 27, 1995 ("Compl."), P 30. The primary purpose of the team was to conduct boxing matches with boxing teams of other New York City agencies and other police departments in the United States and Europe. Id. P 31. Another purpose of the team, much relied upon by plaintiffs in opposing the instant motion, was to enhance the public image of police officers and the police profession by having police officers participate in the sport of amateur boxing. See Exhibit 1 to the Affidavit of Daniel O'Leary, dated May 25, 1995 ("O'Leary Aff."), P 3.

 In 1984, Schroeder requested the New York City Police Department ("NYPD") to officially recognize his boxing team and to permit it to use a logo incorporating a police shield and to post notices of scheduled matches on NYPD premises, including the Police Headquarters building, police precincts, and police command locations. Compl. P 32. Former Police Commissioners Benjamin Ward and Lee P. Brown granted Schroeder's requests. Id. P 33. In the following years, Schroeder's team competed both domestically and internationally. Id. PP 35-37. The team publicized its matches through notices posted on NYPD premises. Id. P 34. Prior to its matches, the team had publicity photo opportunities with Commissioners Ward and Brown and/or with other high-ranking officers of the NYPD. Id. P 38. On or about November 30, 1990, the team incorporated and adopted the name "Fighting Finest, Inc." Id. P 40.

 At some point in 1990, FFI was invited to affiliate itself with the Patrolman's Benevolent Association ("PBA"), the collective bargaining agent of New York City police officers. See O'Leary Aff. PP 14, 17. When FFI, wishing to maintain its independence, declined PBA affiliation, James Higgins, the financial secretary of PBA, founded a separate PBA boxing team. Id. P 19. He then prevailed upon then-Commissioner Kelly to withdraw recognition of FFI and to recognize the PBA team as the sole boxing team for New York City police officers. Id.; Compl. PP 41-42. On or about May 18, 1994, Schroeder received a letter from Jeremy Travis, Deputy Police Commissioner for Legal Matters, demanding that FFI cease using the NYPD shield as part of its logo or conveying in any other way that FFI's activities were associated with the NYPD. Compl. P 43. Commissioner Bratton thereafter refused to participate in any photo publicity events with FFI, id. P 45, and has refused to permit plaintiffs to post notices of upcoming FFI events in NYPD facilities, id. P 46. Bratton has, however, afforded all of these prerogatives to the PBA team. Id. P 47.

 Traditionally, the NYPD has remained neutral on the issue of whether police athletic teams affiliate with the PBA. Id. P 54; O'Leary Aff. PP 12, 15. Numerous police athletic teams have chosen to remain independent of the PBA, O'Leary Aff. PP 2, 8, and, with the one exception of FFI, they have not suffered adverse or differential treatment because of their independence. They are recognized by the NYPD and permitted to use the internal police communications system to publicize and promote their activities. Id. P 2.

 Plaintiffs contend that defendants' decision to withdraw recognition and support from FFI has crippled the team. "The aforesaid actions of the defendants have had the effect of curtailing the matches which can be scheduled by the FFI since notice to members of the Police Department of events by posting in police facilities and photographs with the Commissioner is the method of publicity used most effectively within the Police Department to publicize events among members of the New York City Police Department." Compl. P 53; see id. PP 55, 57. Plaintiffs further contend that by impeding their ability to maintain FFI as a viable, independent boxing team, defendants are interfering with their First Amendment right to participate in the social, athletic and charitable activities of FFI, all of which, they claim, are forms of expressive speech. Id. P 50; Plaintiffs' Memorandum of Law, dated May 26, 1995 ("Pls.' Mem."), at 2. Defendants are also alleged to be violating plaintiffs' right of free speech and association by "compelling the individually named plaintiffs to associate and [sic] participate in the PBA team . . . ." Compl. P 51. Finally, plaintiffs mount an equal protection challenge to defendants' decision to single out boxing as the one sport in which a team must be affiliated with the PBA before it can gain NYPD recognition and access to official NYPD communication channels. See id. PP 29, 59. Plaintiffs contend that no rational basis exists for treating FFI differently from all other police athletic teams.

 DISCUSSION

 A. Freedom of Speech and Association

 Plaintiffs' First Amendment claim presents two discrete issues: (1) whether the impact of defendants' conduct on plaintiffs' boxing activity implicates the First Amendment; and (2) whether the impact of defendants' conduct on ...


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