United States District Court, Southern District of New York
March 31, 2003
ERIC ADAMS, NOEL LEADER, KASUN JENKINS, VERNON WELLS, JOEL OTTLEY, MARK CLARKSON AND JULIAN HARPER, INDIVIDUALLY, AND ON BEHALF OF 100 BLACK MEN IN LAW ENFORCEMENT WHO CARE, PLAINTIFFS,
THE CITY OF NEW YORK AND JOHN DOE NOS. 1 THROUGH 10 (IDENTITIES UNKNOWN TO PLAINTIFFS BUT INTENDED TO DESCRIBE THOSE INDIVIDUALS EMPLOYED BY THE CITY OF NEW YORK WHO PARTICIPATED IN THE ACTIONS COMPLAINED OF IN THIS ACTION), AND VERIZON NEW YORK, INC. F/K/A BELL ATLANTIC NYNEX, DEFENDANTS.
The opinion of the court was delivered by: Thomas P. Griesa, United States District Judge
This is an action alleging violation of civil rights. The complaint alleges that the individual plaintiffs were, at the relevant times, police officers and other law enforcement officers employed by the City of New York, and that 100 BLACK MEN IN LAW ENFORCEMENT WHO CARE ("100 BLACKS"), is an umbrella organization to which the individual plaintiffs belonged. It is said that the organization serves as a forum for addressing the concerns of Black law enforcement officers. The suit is brought against The City of New York and Verizon New York Inc. Also named as defendants are numerous John Does, who are said to be employees of the City who participated in the unlawful activities.
The City has answered with a detailed set of allegations supported by documents attached to the answer as exhibits.
The City moves for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). Verizon moves under Fed.R.Civ.P. 12(b)(6) to dismiss the complaint as against it for failure to state a claim upon which relief can be granted.
Both motions are granted and the action is dismissed.
The complaint alleges that beginning in or about August 1998 the City, through the Internal Affairs Bureau of the New York Police Department, unlawfully began to investigate the activities of 100 BLACKS. It is alleged that this investigation was unlawful and that 100 BLACKS, and the individual plaintiffs as members thereof, were doing nothing but engaging in their rights to associate and assemble. The complaint alleges that, in connection with the unlawful investigation, the City sought from Verizon, without any court order or lawful warrant, records and information relating to the telephone lines of plaintiffs. It is alleged that Verizon, without notice to plaintiffs or the consent of plaintiffs, and in violation of 18 U.S.C. § 2703, unlawfully provided the City with such information. The complaint avers that, with the assistance of Verizon, the City conducted wiretaps of plaintiffs' telephone lines. Plaintiffs claim that the investigative activity was carried on against them, and not against other organizations within the NYPD whose members are white. It is alleged that, among the reasons for the illegality of this activity, it was in violation of a Stipulation of Settlement in the "Handschu Decision" handed down by this Court.
There are eight counts in the complaint.
1 Violation of Equal Protection Rights
2 Violation of Fourth Amendment Rights
3 Violation of Fifth Amendment Rights
4 Employment Discrimination in Violation
of 42 U.S.C. § 1981
5 Discrimination in Violation of N.Y.
Exec. Law § 296
7 Invasion of Privacy
8 Infliction of Emotional Distress
Certain facts are shown beyond any dispute by the documents attached to the City's answer.
The NYPD received a report that plaintiff Eric Adams may have violated the NYPD Patrol Guide Section 104-01. The NYPD Internal Affairs Bureau ("IAB") commenced an investigation of him in August 1998. NYPD Patrol Guide Section 104-01 prohibits NYPD Uniformed Members from associating with a person reasonably believed to be engaged in, likely to engage in, or to have engaged in criminal activities. The report stated that plaintiff Adams was observed meeting with Omowale Clay. Clay had previously been convicted of two counts of federal firearms violations. This conviction stemmed from his October 1994 arrest on Hobbs Act charges (bank and armored car robberies) by the Joint Terrorist Task Force on Conspiracy to Obstruct Interstate Commerce, as well as on charges of plotting to assist in the escape of a Black Liberation Army member who had been convicted of armed robbery in the Brinks case.
There was another relevant investigation. In 1999 a Black NYPD police officer reported that he believed members of the plaintiff organization were harassing him. The police officer filed a complaint with the Nassau County Policy Department. The reason for the complaint being filed in Nassau County was that the officer resided there and alleged that a harassing telephone call was placed to his residence there. However, since he was an officer with the NYPD, the NYPD IAB undertook an investigation.
In furtherance of both of the above investigations — the one regarding Adams, and the one about the harassment — the NYPD issued administrative subpoenas to Verizon requesting information about certain specified telephone numbers. The subpoenas did not request wiretaps or any other form of information about the contents of conversations. Verizon responded to these subpoenas.
The documents attached to the City's answer show conclusively that plaintiffs' complaint is totally miscast. Far from having violated 18 U.S.C. § 2703, as alleged by plaintiffs, defendants acted pursuant to that statute. The statute explicitly authorizes the use of administrative subpoenas by an entity such as the NYPD for the purpose of aiding the investigation of matters within the jurisdiction of the agency, such as inquiries relating to possible misconduct by an officer. 18 U.S.C. § 2703(c)(2). The obtaining of information from Verizon by means of the subpoenas was not a violation of any federal statutory or constitutional rights of plaintiffs. Nor did the activities of the City and Verizon give rise to any possible right of recovery under the state law theories posed in the complaint. Finally, the activities did not violate the settlement agreement in Handschu v. Special Services Div., 605 F. Supp. 1384 (S.D.N.Y. 1985), aff'd., 787 F.2d 828 (2d Cir. 1986).
Numerous other reasons have been given by both the City and Verizon as to why the complaint is invalid. A number of these have merit, but need not be discussed. The basic problem with plaintiffs' action is that it is based upon theories that have absolutely nothing to do with the circumstances that actually occurred, as shown by conclusive documentation.
An additional word needs to be said about the allegation of wiretapping. It is clear that such an allegation was put into the complaint without any basis, along with the other baseless claims. The procedures undertaken by the City with Verizon did not involve wiretapping. Plaintiffs have alleged nothing specific to the contrary.
The City's motion for judgment on the pleadings is granted. This motion will be deemed to include the John Doe defendants, who are said to be employees of the City. Verizon's motion to dismiss the complaint for failure to state a valid claim is granted.
The action is dismissed.
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