The opinion of the court was delivered by: RICHARD HOLWELL, District Judge
Plaintiffs, all current or former firefighters in the New York
City Fire Department ("FDNY"), bring this action seeking monetary
damages for alleged violations of their federal and state
constitutional rights, and of rights afforded them under New York
common law, arising from their arrest and prosecution in relation
to a rally and protest march in which they participated on November 2, 2001.*fn1 Defendants move for
summary judgment as to all of plaintiffs' claims. For the reasons
herein set forth, defendants' motion is granted and plaintiffs'
complaint is dismissed in its entirety.
The Attack on the World Trade Center
The devastating terrorist attacks on September 11, 2001 caused
untold damage and anguish throughout this nation and the world,
and their impact is still felt daily in public and private life
here and abroad. New York City bore the brunt of the attack when
two passenger aircrafts flown into the twin towers of the World
Trade Center, located in lower Manhattan, destroyed the towers
and killed thousands of people within and in the vicinity.
Hundreds of public servants who responded to the emergency and
attempted to rescue those trapped in the buildings before they
collapsed were killed in the line of duty. In the days following
the disaster, emergency workers labored around the clock at the
World Trade Center site which came to be known, and will be
referred to herein, as "Ground Zero" in an attempt to rescue
survivors. When it became painfully evident that no more
survivors would be found, the rescue effort became a mission to
recover the bodies of the victims of the attack from the
thousands of tons of rubble at the site. (Bynon Decl. Ex. L,
Carter Dep. 65:21-66:4; Ex. M, Civitillo Dep. 125:18-126:7.)
Scores of firefighters with the FDNY volunteered their time and
effort to the cause, endangering their health in the contaminated air and hazardous
conditions at the site in order to help find the remains of the
victims, including their fallen fellow firefighters. Firefighters
were widely celebrated as heroes for their self-sacrificing
bravery in their immediate response to the attack, and for their
unswerving dedication to the recovery effort in the ensuing
Restrictions on Access to Lower Manhattan
Immediately following the attacks, Mayor Giuliani declared a
state of emergency and prohibited all pedestrian and vehicular
traffic, except essential emergency vehicles and personnel, south
of Fourteenth Street in Manhattan that is, all of downtown
Manhattan (hereinafter, the Restricted Zone). (Bynon Decl. Ex. C,
Proclamations of a State of Emergency, September 11, 2001.) In
the weeks that followed, Mayor Giuliani issued proclamations that
gradually scaled back the area included within the Restricted
Zone. (Id., Proclamations dated September 25, 2001; October 29,
2001; November 2, 2001.) Common to all of these proclamations is
the express recognition that the attack had caused "extensive
damage to buildings and infrastructure in Lower Manhattan," and
that "[t]hese conditions imperil public safety." (Id.) Also
common to all the proclamations issued after the September 11
proclamation is the admonition that people authorized to perform
some particular "valid purpose" within the zone must have and
display a "valid authorization pass" and must "immediately leave
the area" after performing the "approved activity." (Id.)
Firefighters, as well as employees of other selected agencies did
not have to obtain special passes to enter the Restricted Zone
but were required to show their agency ID and either a badge or a
secondary piece of identification (Kliegerman Decl. Ex. 1). The
Office of Emergency Management ("OEM") of New York City issued a
memorandum on September 28, 2002, urging "all agencies" to remind
their personnel that "Red Zone access is for official business only and that
unauthorized visits could lead to arrests and prosecution.
(Bynon, Decl. Ex. E, OEM memorandum.)
It is undisputed that prior to and on the day of the rally, the
mayoral proclamation then in effect stated that vehicular and
pedestrian traffic could be prohibited an area south of Canal
Street. (Bynon Decl. Ex. C, Proclamations of a State of Emergency
dated October 29, 2001 and November 2, 2001.) It is likewise
undisputed that at that time OEM had in fact declared that the
Restricted Zone encompassed an area that included West Street
from Warren Street (three to four blocks north of Ground Zero to
Albany Street (south of Ground Zero). (Bynon Decl. Ex. F, map.)
In spite of the fact that several plaintiffs deny knowledge of,
or express doubt as to the existence of, practices, procedures,
or structures designed to restrict access to this area at the
time in question (Bynon Decl. Ex. N, Fiorella Dep. 51:18-21; Ex.
O, Tierney Dep. 49:2-16), rules relating to such procedures
indisputably existed. (Bynon Decl. Ex. N, Fiorella Dep.
56:17-20.) The police were responsible for enforcing the
restrictions. (Bynon Decl. Ex. I, Esposito Dep. 81:2-82:3.)
Several plaintiffs also assert that as firefighters they were
exempt from any such restrictions and were authorized to be in
the Restricted Zone at any time and for any reason, whether they
were on or off duty and whether or not they were participating in
the recovery effort. (Bynon Decl. Ex. L, Carter Dep. 47:11-15,
49:18-22; Ex K, James Dep. 42:13-24, 47:24-48:24, 79:2-7; Ex. H,
Gorman Dep. 62:22-63:6; Ex. M, Civitillo Dep. 175:14-19,
179:10-22, pg 184:4-24, 248:3-13; Ex. J, Manley Dep. 39:21-40:4,
128:9-25; Ex. G, Gallagher Dep. 40:23-25; Ex. P, DeStefano Dep.
80:17-23; Ex. N, Fiorella Dep. 44:11-22, pg 47:11-25; Ex. O,
Tierney Dep. 51:6-12.) However, the OEM "exemption" to which
plaintiffs refer is limited on its face to the need to exhibit a
special "WTC 2001 picture credential" in order to gain access to the Restricted Zone. (Kleigerman Decl. Ex. 1.) It does
not purport to authorize exempted personnel to enter the area for
unauthorized purposes, such as the staging of a demonstration.
Facts Concerning the Rally and March Common to All Plaintiffs
After September 11, 2001, a large number of firefighters were
assigned to work at the disaster site. In late October 2001, the
Uniformed Firefighters Association ("UFA") and the Uniformed Fire
Officers Association ("UFOA"), unions representing FDNY
firefighters and officers (collectively "the unions"), received
information about a plan to reduce significantly the number of
FDNY personnel assigned to work at Ground Zero at any given time.
(Bynon Decl. Ex. L, Carter Dep. 68:5-20; Ex. K, James Dep.
62:12-20.) This was unwelcome and disappointing information for
firefighters and family members of victims of the attacks, who
believed that a staffing reduction would compromise the recovery
effort. (Bynon Decl. Ex. G, Gallagher Dep. 21:10-13.) Some
firefighters allegedly believed that the cutback in FDNY labor
power at Ground Zero was premature. (Bynon Decl. Ex. L, Carter
Dep. 74:2-4.) They feared that because not all the bodies had
then been found, restricting the number of workers would
transform the painstaking process of locating and removing intact
remains from the site into a "scoop and dump operation,"
resulting in victims' remains ending up in the Staten Island
landfill amid the debris that had been transported there from the
World Trade Center site. (Bynon Decl. Ex. G, Gallagher Dep.
21:21-25; Ex. K, James Dep. 62:18-20; Ex. L, Carter Dep.
110:3-14.) After some reduction had apparently already been
implemented, some union officials became aware of reports that
seemed to bear out this fear: whereas prior to the change, only
small bone fragments and the like were found at the Staten Island
landfill, after the cutback began, workers at the landfill allegedly found large body parts among the
refuse. (Bynon Decl. Ex. G, Gallagher Dep. 32:16-17; Ex. H,
Gorman Dep. 40:15-24; Ex. J, Manley Dep. 65:2-14.).)
Union officials believed that then-Mayor Giuliani's office, not
the fire department administration, was the driving force behind
the decision to cut labor hours. (Bynon Decl. Ex. L, Carter Dep.
75:6-23.) Kevin Gallagher, then president of the UFA and a
plaintiff in the companion suit, communicated the UFA's
opposition to the cutback to City Hall staff. (Bynon Decl. Ex.
G., Gallagher Dep. 24:11-20.) While these communications were
taking place, family members of fallen firefighters allegedly
proposed a protest action, which they allegedly indicated they
would organize with or without the participation of the FDNY or
the unions. (Bynon Decl. Ex. L, Carter Dep. 78:11-15, 80:3-10;
Ex. G, Gallagher Dep. 36:16-18.) Union officials met with mayoral
staff on November 1, 2001, and informed them that a rally would
take place on November 2 unless the City abandoned the staffing
reduction plan. (Bynon Decl. Ex. L, Carter Dep. 79:24-80:6; Ex.
G., Gallagher Dep. 26:6-12.) Not having heard from the mayor or
his staff as of the evening of November 1, the union boards voted
to go forward with the rally. (Bynon Decl. Ex. G, Gallagher Dep.
31:17-20; Ex. H, Gorman Dep. 24:22-25.) Union board members faxed
a one-page flyer to firehouses and phoned firehouse delegates
asking all off-duty firefighters to attend a rally the next
morning at West and Chambers Street, approximately one block
north of the Restricted Zone in effect at the time of the rally
and a few blocks north of Ground Zero. (Bynon Decl. Ex. L, Carter
Dep. 82:14-21; Ex. A, Compl. ¶ 27; Ex. D, OEM document, 2; Ex. F,
map.) The rally was not sponsored or sanctioned by the FDNY.
(Bynon Decl. Ex. G., Gallagher Dep. 104:14-25.) The City did not
issue a permit or otherwise grant permission for the rally.
(Id. at 39:19-21.) The organizers did not contact the police
department with information about the planned action. (Id. at
37:4-22, 53:1-18.) Several hundred firefighters showed up the next morning at the
site of the planned rally, many of whom wore clothing identifying
them as members of the FDNY, as the rally organizers had
encouraged them to do. (Bynon Decl. Ex. J, Manley Dep.
94:25-95:3, 210:11-13; Ex. H, Gorman Dep. 38:18-19; Ex. K, James
Dep. 68:16-19; Ex. P, DeStefano Dep. 127:2-8, 148:4-7.)
Civilians, including family members of fallen firefighters, also
attended, and members of the press came to cover the event.
(Bynon Decl. Ex. H, Gorman Dep. 38:19-20; Ex. N, Fiorella Dep.
101:3-7; Vazquez Reply Decl. Ex. AA, Schiumo Dep. 17:21-25:10.)
As noted, the rally site was not within the Restricted Zone.
(Bynon Decl. Ex. I, Esposito Dep. 30:23-31:1.)
A large police detail was present to police the demonstration,
although they were significantly outnumbered by the participants
in the demonstration. (Vazquez Reply Decl. Ex. AA, Schiumo Dep.
45:11-22.) Before the rally began, members of the union spoke
with some of the higher-ranked members of the police department.
During one of these conversations, ranking police department
personnel informed fire department personnel and members of the
unions that notwithstanding any plan on the part of the rally's
organizers to march south into Ground Zero, the police department
was not prepared to provide crowd control for the protesters in
the restricted area and did not want them to march to Ground
Zero. (Bynon Decl. Ex. G, Gallagher Dep. 56:11-22; Ex. I,
Esposito Dep. 47:18-24.) The police suggested that participants
in the protest march instead to City Hall. (Bynon Decl. Ex. G,
Gallagher Dep. 56:11-22; Ex. I, Esposito Dep. 48:22-24.) While
defendant Esposito, the Chief of Department of the New York City
Police Department and the person in charge of the police detail
providing crowd control for the rally, alleges that the union
agreed on this alternative march route prior to the rally (Bynon
Decl. Ex. I, Esposito Dep. 5:21), union officials alleged that no
such agreement was reached, and that the unions made the decision
to march to Ground Zero despite the police department's position after civilian and FDNY attendees of the rally expressed
support for marching to Ground Zero (Bynon Decl. Ex. G, Gallagher
Dep. 49:16-50:12.) One of the rally organizers, plaintiff Kevin
Gallagher, tried to convince the families and firefighters to
march to City Hall, but after word got out, the crowd began
chanting "we're going to Ground Zero, we're going to Ground Zero"
and, according to Gallagher, "that was it." (Bynon Decl. Ex. G,
Gallagher Dep. 62:9-63:9.)
At the rally, several individuals including union officials
spoke from a platform erected by Ground Zero construction workers
for that purpose. (Id. at 39:12-15, 54:22-25.) Some if not all
spoke critically of a reduction in labor power at the World Trade
Center site at that time. (Bynon Decl. Ex. J, Manley Dep.
99:15-22; Ex. L, Carter Dep. 110:21-111:10; Ex. M, Civitillo Dep.
152:19-153:12.) At least one of the speakers, Gallagher,
announced that at the conclusion of the rally there would be a
procession into Ground Zero to say a prayer. (Bynon Decl. Ex. G,
Gallagher Dep. 62:19-63:17; Ex. L, Carter Dep. 113:25-114:4; Ex.
J, Manley Dep. 105:14-22; Ex. K, James Dep. 70:22-25.) After the
speeches were concluded, the assembly moved en masse south on
West Street into the Restricted Zone and toward Ground Zero. En
route, the demonstrators encountered first one and then another
police barricade, one positioned just south of the demonstration
and one situated a few blocks further south, both stretching
across some portion of West Street. (Bynon Decl. Ex. J, Manley
Dep. 107:5-112:24; Ex. I, Esposito Dep. 56:13-58-10, 67:8-69:18;
Ex. K, James Dep. 72:5-10; Ex. Q, Nealon Dep. 46-48; Ex. T,
At the first barricade Police Chief Esposito stood in front of
the barricade and told the crowd that they could not march south
through the barrier. (Bynon Decl. Ex. I, Esposito Dep.
63:10-64:16.) The same warning was being given by a second
officer using a megaphone. (Id.) While most of the plaintiffs stated that they did not hear any
such warnings (Bynon Decl. Ex. H, Gorman Dep. 45:21-23; Ex. K,
James Dep. 73:9-11; Ex. G, Gallagher Dep. 79:2-10; Ex. J, Manley
Dep. 113:3-12; Ex. P, DeStefano Dep. 150:11-13; Ex. O, Tierney
Dep. 123:20-22), former plaintiff Sean Nealon testified that he
did in fact hear a police officer at the first barrier tell the
demonstrators over a megaphone "that we were not permitted to go
down to Ground Zero." (Bynon Decl. Ex. Q, Nealon Dep.
19:22-20:14; 47:11-18.) According to Police Chief Esposito, the
demonstrators picked up the barriers, pushed them aside and
continued to march south (Bynon Decl. Ex. I, Esposito Dep.
64:17-21.) Police photographs taken at the time appear to show
firefighters removing police barriers. (Bynon Decl. Ex. R, photos
##37, 38 & 39.) Further, a television news reporter who had
attended the rally and march and had videotaped the events for
broadcast, stated, in narrating his unedited footage, "These
firefighters . . . broke through this first barricade and started
making their way south," and "We came to yet another barricade,
where police did their best to stop the group." (Bynon Decl. Ex.
T, videotape). Nevertheless, one plaintiff and one of the
demonstrators stated that they saw certain blue-shirted police
officers*fn3 move the barriers out of the way and let the
crowd through. (Bynon Decl. Ex. J, Manley Dep. 107:5-10;
108:6-11; Kliegerman Decl. Ex. 2, Steadman Dep. 45:6-17.)
After the demonstrators passed through the first barrier,
Police Chief Esposito directed his officers to move south in
front of the demonstrators and form a second line to stop them.
(Bynon Decl. Ex. I, Esposito Dep. 66:15-19). If there was any
confusion as to the intention of the police at the first
barricade, it was quickly dispelled. As the crowd moved south,
plaintiff Michael Carter, one of the rally organizers, observed
"a wall of white-shirted police officers standing in front of a barricade." (Bynon Decl. Ex. L, Carter
Dep. 124:5-8.) Carter clearly understood their intent:
Q. What did you think of, the purpose was of the
barricades and the white shirts in front of you?
A. I thought they were there to deny us any access
past that point.
A. Because they didn't want us there.
Q. When you say, "There," what do you mean by that?
A. I think they put that line up to stop us prior to
getting to the perimeter of the site. There was
several blocks still at least a couple of blocks
ahead of the site. So it was my feeling that they had
made a decision that that's as close as we were going
to get to the site.
Q. That was your understanding of it at the time when
you saw them?
A. It was just a thought that I had. When you see a
line of police officers standing behind a barricade,
I would think one would gather that they don't want
you to pass that.*fn4
(Bynon Decl. Ex. L, Carter Dep. 125:8-126:5.)
As the crowd approached the second barricade, "the police
officers were basically pushing everybody back when they got to
the barricade." (Bynon Decl. Ex. Q, Nealon Dep. 48:19-49:24.) It
appears that tempers flared on both sides, and there were some
aggressive exchanges, both physical and verbal, between police
and the protesters at the front of the march. (Bynon Decl. Ex. L,
Carter Dep. 127:12-128:12; Ex. H, Gorman Dep. 46:4-17; Ex. R,
photos; Ex. T, videotape.)*fn5 Some of the firefighters were
arrested during these confrontations (Bynon Decl. Ex. U, criminal
complaints), many of them at the behest of Police Chief Esposito.
(Bynon Decl. Ex. L, Carter Dep. 132:22-133:5; Ex. N, Fiorella
Dep. 116:9-15; Ex. O, Tierney Dep. 116:22-24.) Several police
officers were treated for injuries, all apparently sustained at
or near the corner of West and Vesey Streets, which was at the
northern perimeter of the World Trade Center site, indisputably
within the Restricted Zone. (Bynon Decl. Ex. V, medical treatment
reports; Ex. S, Police Department memorandum.) Some of these
injuries were sustained when officers were hit by barricades or
other objects or persons, or pushed to the ground. (Bynon Decl.
Ex. V, medical treatment reports.)
The altercations and arrests did not stop the march. (Bynon
Decl. Ex. J, Manley Dep. 112:8-16; Ex. Q, Nealon Dep. 49.) The
procession continued into Ground Zero, where two union officials
climbed onto a piece of heavy machinery, addressed the crowd
through a megaphone provided by a police officer prior to the
start of the rally, and led the group in a moment of silence and
a prayer. (Bynon Decl. Ex. G, Gallagher Dep. 47:17-25, 72:18-21;
Ex. H, Gorman Dep. 48:1-9.) At that point, some union board
members in the group directed the protesters to exit Ground Zero
and to proceed to City Hall. (Bynon Decl. Ex. G, Gallagher Dep.
80:5-8; Ex. J, Manley Dep. 137:12-138:12.) The group then marched
to City Hall, then to the Brooklyn Bridge, and soon thereafter
dispersed. (Id. at 141:9-142:20.) By the end of the morning of November 2, it became known and
was reported by news media that several police officers had been
injured during the rally and march, and that several participants
in the action had been arrested. (Bynon Decl. Ex. L, Carter Dep.
204:22-210-4; Ex. M, Civitillo Dep. 222:9-226:10.) Subsequent
arrests were made the following week, including the arrests of
plaintiffs James and Manley and the re-arrest of plaintiff
DeStefano. (Bynon Decl. Ex. K, James Dep. 88:18-25; Ex. P,
DeStefano Dep. 245:11-246:10.) All of the arrestees were released
on their own recognizance after being processed through the
system and arraigned on charges of trespass in the third
degree.*fn6 (Bynon Decl. Exs. L, M, N, O, P.) Following the
arrests, Mayor Giuliani allegedly stated publicly that the
arrestees would lose their jobs. (Bynon Decl. Ex. N, Fiorella
Dep. 204:24-25.) Apparently, they did not. On December 18, 2001,
the district attorney moved to dismiss all charges arising from
the demonstration in the interests of justice. (Bynon Decl. Ex.
Y, Criminal Court transcript 3:9-4:7.) The judge dismissed the
charges on this ground, noting the "mitigating circumstances
. . . in light of the extraordinary emotional situation
underlying these actions." (Id. at 4:8-13.)
This action was filed in late 2002, alleging false arrest,
malicious prosecution, assault and battery, intentional
infliction of emotional distress, and violations of plaintiffs'
rights under the First, Fourth, Fifth, and Fourteenth Amendments
to the U.S. Constitution*fn7 against the City of New York;
the Police Department of the City of New York; Rudolph Giuliani,
Mayor of New York City at the time of the incident in question;
Bernard Kerik, Commissioner of the Police Department at the time; Thomas ...