United States District Court, S.D. New York
September 24, 2004.
MICHAEL CARTER, SAL CIVITILLO, MICHAEL DESTEFANO, VICTOR FIORELLA, MATTHEW JAMES, THOMAS MANLEY, SEAN NEALON, and MICHAEL TIERNEY, Plaintiffs,
THE CITY OF NEW YORK, RUDOLPH GIULIANI, as Mayor of the City of New York; BERNARD KERIK, as Commissioner of the New York City Police Department of the City of New York; JOSEPH J. ESPOSITO, as Chief of Department, New York City Police Department; NEW YORK CITY POLICE DEPARTMENT; THOMAS VON ESSEN, as Commissioner of the Fire Department of the City of New York; POLICE OFFICER RAYMOND ALEXANDER, SHIELD #07652; POLICE OFFICER MICHAEL CUSUMANO, SHIELD #01406; POLICE OFFICER PATRICK DELLILO, SHIELD #10940; POLICE OFFICER BRIAN KAHN, SHIELD #10388; DET. DANIEL MASSANOVA, SHIELD #02342; POLICE OFFICER VARON SHEPARD, SHIELD #07647 and DET. RICHARD STARK, SHIELD #06393, Defendants.
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 Von Essen, then Commissioner of
the FDNY; Joseph J. Esposito, then Chief of the Police
Department; and the arresting officers.*fn8
Facts Concerning Individual Plaintiffs*fn9
1. Michael Carter
Michael Carter was a vice president of the UFA at the time of
the rally, and had been involved in voting for and organizing the
rally. Carter attended the rally, and after the speeches were
concluded made his way through the marching crowd toward the
front of the group. (Bynon Decl. Ex. L, Carter Dep. 122:12-15.)
At a certain point Carter encountered a "wall" of police officers
that appeared to him intended to deny the demonstrators access
beyond that point. (Id. at 124:7-8, 125:8-126:5.) Carter
alleges he witnessed an angry verbal exchange between a nearby
firefighter and a police officer and, allegedly hoping to avoid
escalation into a physical conflict, grabbed hold of the
firefighter and urged him to calm down. According to Carter,
defendant Esposito, standing nearby, ordered another police
officer to arrest Carter. (Id. at 132:13-135:6.) The officer
allegedly responded, "But Chief, he didn't do anything wrong."
(Id. at 141:11-12.) Carter was arrested by Police Officer Varon
Shepard. Shepard states in the complaint filed against Carter
that Carter and others were observed in a restricted area at or
near the intersection of West and Vesey Streets after the crowd
had been told they should leave the premises. The complaint
states that Carter was past the barricade, while Carter states he
was arrested in front of the barricade. (Bynon Decl. Ex. U,
criminal complaint.) There is no dispute, however, that Carter was participating in a demonstration in the
Restricted Zone at the time of his arrest.
2. Victor Fiorella
Victor Fiorella, a firefighter, attended the rally and was in
the back of the group as it proceeded south down West Street.
(Bynon Decl. Ex. N, Fiorella Dep. 114:6-115:21.) At a point where
Fiorella could see the marchers ahead of him going toward Ground
Zero, he encountered defendant Police Chief Esposito ahead and to
his right. According to Fiorella, Esposito told him that if he
crossed a line that Esposito had drawn in the dirt with his foot,
Fiorella would be arrested. (Id. at 116:7-13.) Fiorella
answered in words to the effect of "Are you kidding me?",
whereupon Esposito ordered nearby police officers to arrest him.
(Id. at 116:13-15.) According to the complaint filed by
arresting officer Dellilo, Fiorella was observed by Dellilo at
the intersection of West and Vesey Streets after Delillo heard
police officials announce over a bullhorn that the demonstrators
were not allowed to march into the Restricted Zone. (Bynon Decl.
Ex. U, criminal complaint.) According to Fiorella, however, the
arresting officer asked Police Chief Esposito, "For what?", to
which Esposito replied, "Back me up on this, arrest him." (Bynon
Decl. Ex. N, Fiorella Dep. 142:18-33.) In any event, it is
undisputed that Fiorella was participating in a demonstration in
the Restricted Zone at the time of his arrest.
3. Michael Tierney
Michael Tierney, a firefighter, attended the rally and walked
down West Street with the rest of the assembly. Tierney was
yelling and protesting along with other demonstrators when he
reached a point that he alleges was at the intersection of West
and Vesey Streets. (Bynon Decl. Ex. O, Tierney Dep. 115:18-24) At
that point, the crowd stopped moving forward, and Esposito told
Tierney that Tierney was under arrest. (Id. at 115:24-116:24;
122:20-123:5.) The criminal complaint reflects that the arresting officer, Varon Shepard, was
informed by Sgt. William Viscardi that Tierney was observed
pushing through the barricade at Vesey and West Streets which
area Shepard knew to be a restricted area. (Bynon Decl. Ex. U,
criminal complaint.) Whether Tierney was arrested in front of or
behind the second barricade, it is not disputed that he was in
the Restricted Zone at the time.
4. Sal Civitillo
Sal Civitillo, a firefighter, attended the rally, during which
he states he witnessed a police inspector move part of a
barricade to let the crowd move so that they could hear the
speeches better. (Bynon Decl. Ex. M, Civitillo Dep. 164:15-165:8;
172:8-10.) This appears to have occurred before the demonstrators
marched south into the Restricted Zone. (Id.) As Civitillo
walked with the group headed toward Ground Zero, he observed a
scuffle between a firefighter and several police officers a short
distance in front of the entrance to Ground Zero. (Id. at
165:20-166:3.) A barrier was off to one side, but he did not know
who moved it. (Id. at 172:8-15.) When Civitillo paused to see
what was going on, a ranking police officer asked him what he was
doing; when Civitillo answered, "I'm just walking," the officer
told Civitillo to "turn around and walk on." (Id. at 169:4-12.)
Civitillo continued to walk toward Ground Zero, but when he was
within approximately 200 feet from the site, a ranking officer
told him that he was under arrest and physically pulled him out
of the site. The ranking officer turned Civitillo over to two
police officers and told them to handcuff him. According to
Civitillo, the officers protested that Civitillo "didn't do
anything." However, it is undisputed that Civitillo was in the
Restricted Zone marching to Ground Zero at the time of his
arrest. (Bynon Decl. Ex. V, criminal complaint.) 5. Michael DeStefano
Michael DeStefano, a firefighter, attended the rally and
participated in the march toward Ground Zero. He was in the back
half of the procession and had seen no barricades before he
noticed firefighters being arrested by police less than a block
from the entrance to the World Trade Center site, witnessed an
altercation between a police officer and a firefighter, and was
himself arrested by a police lieutenant at the command of a
superior officer. (Bynon Decl. Ex. P, DeStefano Dep. 147:19-22,
150:14-151:18, 164:3-14, 174:21-175:21-25.) He was in the
Restricted Zone participating in the demonstration at the time of
his arrest. DeStefano was taken with several of the other
plaintiffs to the 28th Precinct, and later to the courthouse to
be processed. (Id. at 190:9-220:15.) While in the holding cell
at the courthouse, a court officer informed DeStefano and another
detained firefighter that they were free to go. (Id. at
221:6-8.) DeStefano was released but was later informed that he
was to be rearrested and would have to turn himself in to the
police the following week. (Id. at 222:7, 245:14-246:10,
248:11-21.) DeStefano turned himself in at the First Precinct and
was processed there and at the courthouse, and released some
hours later after being arraigned. (Id. at 252:12-256:23.)
6. Matthew James
Matthew James, a former firefighter, was a union trustee at the
time of the incident at issue, and participated in the decision
to hold a rally. (Bynon Decl. Ex. K, James Dep. 18:4-11,
65:18-67:10.) James was among those marching at or near the front
of the procession of marchers moving toward Ground Zero. (Id.
at 71:20-22.) While marching, James encountered a barrier and
moved with the crowd beyond the barrier, but allegedly did not
know how or by whom the barrier was moved. (Id. at 73:19-74:18;
Bynon Decl. Ex. R, photos.) As he approached the World Trade
Center site, James observed police officers handcuffing
firefighters. (Bynon Decl. Ex. K, James Dep. 77:24-78:3.) James proceeded into
Ground Zero, participated in the group prayer, and then
accompanied the group on its march to City Hall. (Id. at
83:19-86:22.) Several days after the rally and march, James was
informed by his attorney that he had to turn himself into the
police to be arrested, which James did. (Id. at 88:24-89:9.)
The arrest was apparently based upon police identification of
James in a photograph taken on November 2 in the restricted area.
(Bynon Decl. Ex. X, criminal complaint.)
7. Thomas Manley
Thomas Manley, a firefighter, was a UFA officer at the time of
the incident at issue, and participated in the vote to hold a
rally. (Bynon Decl. Ex. J, Manley Dep. 76:13-18.) Manley attended
the rally and joined the group in marching toward Ground Zero.
Manley, who was in the front of the group, alleges that when the
group approached the first set of wooden barricades, police moved
the barricades out of the way. (Id. at 106:23-107:2, 107:7-10.)
However, Manley alleges that the marchers then encountered a line
of white-shirted police officers in front of a second set of
barricades. (Id. at 110:15-112:24.) Manley testified that it
appeared to him that the officers were trying to prevent the
marchers from entering the site, and that when the barricades
were breached, the officers started grabbing and pushing people.
(Id. at 118:25-120:10.) Manley allegedly yelled to the crowd to
calm down. (Id. at 123:3-4.) After he entered the World Trade
Center site, Police Chief Hale and a police captain approached
Manley and grabbed his arms and pushed him backwards, telling him
in words or substance to "get back." (Id. at 125:16-126:6.) The
confrontation ended when the police and Manley stepped away from
one another, and Manley remained at the site for the recitation
of the prayer. (Id. at 130:15-131:6, 134:15-16.) On the
following Monday, Manley was informed later that day that he had
to turn himself in for arrest at the First Precinct, which he
did. (Id. at 149:5-7; 163:24-164:4.) DISCUSSION
I. Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure provides that
summary judgment "shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with 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). In reviewing the record, the district court "is not to
weigh the evidence but is instead required to view the evidence
in the light most favorable to the party opposing summary
judgment, to draw all reasonable inferences in favor of that
party, and to eschew credibility assessments." Weyant v. Okst,
101 F.3d 845, 854 (2d Cir. 1996); see Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202
An alleged factual dispute between the parties will not by
itself defeat a motion for summary judgment, since "the
requirement is that there be no genuine issue of material
fact." Anderson, 477 U.S. at 247-48 (emphasis in original). In
order to defeat such a motion, the non-moving party must
affirmatively set forth facts showing that there is a genuine
issue for trial. Id. at 256; Celotex Corp. v. Catrett,
477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). "A
fact issue is `genuine' if `the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.'"
Mack v. Otis Elevator Co., 326 F.3d 116, 120 (2d Cir. 2003)
(quoting Anderson, 477 U.S. at 248). "A fact is `material' for
these purposes if it `might affect the outcome of the suit under
governing law.'" Kinsella v. Rumsfeld, 320 F.3d 309, 311 (2d
Cir. 2003) (quoting Anderson, 477 U.S. at 248).
Conclusory allegations are never alone sufficient to create a
genuine issue of material fact. Fujitsu Ltd. v. Federal Express
Corp., 247 F.3d 423, 428 (2d Cir. 2001) (quoting Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998)). A party seeking to
oppose a motion for summary judgment must offer more than
speculation and conjecture in support of its factual claims.
Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11-12 (2d Cir. 1986);
Quarles v. General Motors Corp., 758 F.2d 839, 840 (2d Cir.
1985) (per curiam).
II. False Arrest
Plaintiffs assert that their arrests violated both New York
common law and the Fourth Amendment. A claim for false arrest
brought under 42 U.S.C. § 1983, based on the Fourth Amendment's
guarantee of freedom from unreasonable seizures (including arrest
without probable cause), is substantially the same as a claim for
false arrest brought under New York law. Weyant,
101 F.3d at 852. A plaintiff alleging false arrest must prove that "the
defendant intentionally confined him without his consent and
without justification." Escalera v. Lunn, 361 F.3d 737, 743 (2d
Cir. 2004) A showing that probable cause existed for the arrest
defeats any showing of lack of justification, and provides a
complete defense to both the federal constitutional and the state
law claims. Weyant, 101 F.3d at 852; Singer v. Fulton County
Sheriff, 63 F.3d 110, 118 (2d Cir. 1995). Defendants assert that
such probable cause existed as to all plaintiffs, because all
were arrested after they marched into the Restricted Zone without
authorization to do so. Defendants further argue that even if
probable cause were not manifestly present, they are entitled to
qualified immunity as to the arrests as long as they can show
"arguable probable cause." See Escalera, 361 F.3d at 743.
A. Existence of Probable Cause
Probable cause to arrest exists "when the officers have
knowledge or reasonably trustworthy information of facts and
circumstances that are sufficient to warrant a person of
reasonable caution in the belief that the person to be arrested
has committed or is committing a crime." Caldarola v. Calabrese, 298 F.3d 156, 162 (2d Cir.
2002) (quoting Weyant, 101 F.3d at 852). The probable cause
inquiry is an objective one: the court, considering the totality
of the circumstances based on those facts available to the
officer at the time of the arrest and immediately before it,
Calamia v. City of New York, 879 F.2d 1025, 1032 (2d Cir.
1989); Lowth v. Town of Cheektowaga, 82 F.3d 563, 569 (2d Cir.
1996), must ask "whether a reasonable officer could have believed
that his actions were lawful, in light of clearly established law
and the information the officer possessed." Martinez v.
Simonetti, 202 F.3d 625, 634 (2d Cir. 2000) (quoting Wilson v.
Layne, 526 U.S. 603, 119 S. Ct. 1692, 1700, 143 L. Ed. 2d 818
(1999)) (brackets omitted). This inquiry must be made "without
regard to the individual officer's subjective motives or belief
as to the existence of probable cause." United States v.
$557,933.89, More or Less, in U.S. Funds, 287 F.3d 66, 85 (2d
Cir. 2002). While probable cause is frequently a question of
fact, if there is no dispute as to the material facts and the
knowledge of the officers, the existence of probable cause is a
legal question determinable by the court. Weyant,
101 F.3d at 852; Singer v. Fulton County Sheriff, 63 F.3d at 118-19;
Stanyard v. Safir, No. 00 Civ. 3657, 2003 WL 151999, at *1
(S.D.N.Y. Jan. 21, 2003).
The criminal offense which plaintiffs were all charged with
violating, criminal trespass in the third degree, makes a person
guilty of a Class B misdemeanor "when he knowingly enters or
remains unlawfully in a building or upon real property . . .
which is fenced or otherwise enclosed in a manner designed to
exclude intruders." N.Y. Penal Law § 140.10 (McKinney 1999 &
Supp. 2004). Although many of the plaintiffs state that they did
not see barricades blocking entrance to the Restricted Zone or
observe police attempting to keep demonstrators from proceeding
south along West Street, and although one plaintiff (and a
third-party witness) allegedly observed police moving the first
set of barricades to allow the marchers to pass, it is undisputed
that access to the World Trade Center site was restricted and that the police
did attempt, using a human chain of officers in vicinity of West
and Vesey Streets, to block further entrance into the restricted
area and to keep the demonstrators from proceeding into Ground
Zero. The leaders of the demonstration, including plaintiff
Manley, were aware before the rally began that the police did not
want them to march to Ground Zero. Further, no plaintiff asserts
that the wall of white-shirted officers in front of the second
barricade were inviting the demonstrators to continue south to
Ground Zero. Whether any particular plaintiff knew about those
efforts to exclude them from the site is not relevant to the
probable cause inquiry, although it would be relevant to a legal
determination of guilt or innocence, since what is at issue in
determining probable cause is the knowledge of the police
officers. It is beyond dispute that the police were aware of the
efforts to restrict access, since they were generally charged
with the duty of enforcing the restrictions (Bynon Decl. Ex. 1,
Esposito Dep. 81:2-82:3), and Police Chief Esposito was clearly
instructing his detail, including his arresting officers, to keep
the demonstrators out of the Restricted Zone. Indeed, many of the
plaintiffs concede they observed police attempting to prevent the
crowd from proceeding further south into the Restricted Zone.
(Bynon Decl. Ex. J, Manley Dep. 112:17-24; Ex. L, Carter Dep.
125:8-126:5). Given these uncontroverted facts, probable cause to
arrest for trespassing is facially present.
Plaintiffs seem to rest their false arrest claim on the
argument that the police could not have reasonably believed their
actions to be lawful, (1) because all firefighters had authority
to be in the Restricted Zone for any purpose (including,
necessarily, conducting a protest march with non-firefighter
demonstrators), or (2) because police invited them to proceed
into the Restricted Zone on the day in question. Several of the
plaintiffs expressed in their deposition testimony the
understandable conviction that as firefighters they had an
unqualified right or license to enter the restricted area. (Bynon Decl. Ex. G,
Gallagher Dep. 40:23-25; Ex. J, Manley Dep. 113:25-114:6; Ex. O,
Tierney Dep. 16:2-5; Ex. P, DeStefano Dep. 157:18-25.) Not only
had many of the plaintiffs spent countless hours many of them
unpaid in the recovery effort at the site over the preceding
weeks, but they were all profoundly aware of the fact that the
bodies of many of their fallen fellow firefighters might still be
buried in the rubble. Moreover, many had never had to show a pass
or any identification when they entered the site to work up to
the time of the rally. (Bynon Decl. Ex. P, DeStefano Dep. 76:2-6;
Ex. O, Tierney Dep. 51:6-12.)
Some of the plaintiffs also recount having seen some
rank-and-file police officers moving the first set of barricades
or allowing them to be moved out of the path of the
demonstrators, walking alongside the procession down to Ground
Zero, or cheering the demonstrators as they marched from Ground
Zero to City Hall. (Bynon Decl. Ex. K, James Dep. 73:13-16,
82:7-21; Ex. M, Civitillo Decl. 159:8-9; Ex. P, DeStefano Dep.
148:19-22; Ex. J, Manley Dep. 107:7-10, 109:2-20; Ex. L, Carter
Dep. 141.) The plaintiffs cite this as evidence that even if they
did not have a general authorization to enter the Restricted Zone
at any time for any purpose, then they were being allowed to
enter the site on that day.
However understandable plaintiffs' expectations may have been
on the day of the rally, this court's inquiry must be into the
undisputed facts grounding the police officers' actions that day.
Ground Zero was without question still unsafe at the time of the
rally, a fact acknowledged by plaintiffs. (Bynon Decl. Ex. J,
Manley Dep. 45:24-51:13; Ex. P, DeStefano Dep. 90:23-91:25.)
Civilians were undisputedly among those marching down West Street
toward the site. At the time of the rally, the City had
unambiguously restricted access on West Street below Warren
Street. Moreover, the City's restrictions on access to the site
explicitly required authorized personnel including firefighters to leave the site
after they had performed their authorized activity, see supra.
Some of the plaintiffs expressed the belief that participating in
the march was an extension of their work as firefighters, because
they hoped that their protest would stop the work force reduction
and thereby preserve the recovery effort. (Bynon Decl. Ex. P,
DeStefano Dep. 159:3-9; Ex. M, Civitillo Dep. 180:13-15,
182:9-183:2.) But none of the plaintiffs has claimed that he was
actually performing any official work-related duty during the
rally or march. (Bynon Decl. Ex. P, DeStefano Dep. 157:18-25; Ex.
M, Civitillo Dep. 180:6-12, 181:12-182:8; Ex. N, Fiorella Dep.
131:25-132:3; Ex. O, Tierney Dep. 146:24-147:3.) A protest march
into the restricted area was not an authorized activity by any
definition, and especially in light of security concerns
following September 11, 2001, it is reasonable to expect that the
City would closely regulate the form and location of such
protests. See United for Peace and Justice v. City of New York,
243 F. Supp. 2d 19, 28-29 (S.D.N.Y. 2003). In spite of
plaintiffs' sincerely held beliefs that they were permitted on
the site, plaintiffs cannot establish that they had some form of
general authorization to march into the Restricted Zone on the
day of the demonstration. The undisputed evidence reveals that
the opposite was true.
Moreover, a careful review of the record reveals that the only
evidence of being given permission on the day of the rally
consists of the testimony of one plaintiff and one non-party
witness who state that they saw blue-shirted police officers move
the first set of barricades. (Bynon Decl. Ex. J, Manley Dep.
107:7-109:4; Kliegerman Decl. Ex. 2, Steadman Dep. 45:11-46:23.)
By contrast, it is uncontroverted that Police Chief Esposito
formed a wall of white-shirted senior officers before the second
barricade, that their intent to stop the demonstrators from
proceeding further into the Restricted Zone was obvious, and that
the crowd pushed or was propelled through the police line while
the police were trying to push them back. (Bynon Decl. Ex. I, Esposito Decl. 71:5-6; Ex. J, Manley Dep. 112:8-24; Ex. L,
Carter Dep. 125:8-126:5; Ex. Q, Nealon Dep. 20.)
Given the conditions obtaining during the rally, and given that
police knew they were charged both with enforcing the
restrictions on access and with ensuring the safety of the
participants in the rally, there is no genuine issue of material
fact as to the existence of probable cause for the arrests of
rally participants who marched into the Restricted Zone. At the
moment these arrests were made, the facts and circumstances
within the arresting officers' knowledge and of which they had
reasonably trustworthy information namely, that each defendant
was observed in the Restricted Zone, and that none of the
defendants were engaged in authorized relief work, but rather
were part of a mass of demonstrators attempting to make an
unauthorized march to Ground Zero were sufficient to warrant a
prudent officer in believing that the suspect had committed or
was committing the offense of criminal trespass. See Miloslavsky
v. AES Engineering Soc., Inc., 808 F. Supp. 351, 354 (S.D.N.Y.
1992) (quoting Adams v. Williams, 407 U.S. 143, 148,
92 S. Ct. 1921, 1924, 32 L. Ed. 2d 612 (1972)).*fn10 Furthermore, the
subjective beliefs of any rank-and-file officers who disagreed
with the propriety of the arrests directed by Police Chief
Esposito are irrelevant to the determination of whether an
objective basis for finding probable cause existed. See United
States v. Gagnon, 373 F.3d 230, 239 (2d Cir. 2004) ("[A] law
enforcement officer's mistaken belief that probable cause did not
exist at the time is irrelevant to a court's later determination
of whether probable cause existed at the time.").*fn11 B. Qualified Immunity
Even if there were any doubt as to the existence of probable
cause, the individual defendants have properly invoked their
entitlement to qualified immunity. Public officials are entitled
to qualified immunity if (1) their conduct does not violate
clearly established constitutional rights, or (2) it was
objectively reasonable for them to believe their acts did not
violate those rights. Weyant v. Okst, 101 F.3d 845, 857 (2d
Cir. 1996). This defense is available where a "reasonable officer
could have believed" his action "to be lawful, in light of
clearly established law and the information he possessed."
Anderson v. Creighton, 483 U.S. 635, 441 (1987). This standard
is referred to as "arguable probable cause." Escalera,
361 F.3d at 743. "Arguable probable cause exists if either (a) it was
objectively reasonable for the officer to believe that probable
cause existed, or (b) officers of reasonable competence could
disagree on whether the probable cause test was met." Id.
(quoting Golino v. City of New Haven, 950 F.2d 864, 870 (2d
Cir. 1991)). Plaintiffs strenuously argue that since two or three
blue-shirted police officers objected to their superiors when
ordered to make arrests, there was no reasonable basis for the
arrests. (Pl. Mem. at 32). However, even if the court were to
discount the probative value of the uncontroverted evidence
showing the existence of probable cause, the allegations that
some police officers expressed disagreement with the propriety of
the arrests of some of the plaintiffs does not negate the
existence of probable cause; at worst, it demonstrates the
existence of disagreement among officers of reasonable competence
as to whether probable cause existed. The undisputed fact that
each of the plaintiffs was within the Restricted Zone engaged in
an unauthorized activity when he was arrested provides a basis
for "arguable probable cause" at the very least, and warrants summary judgment on plaintiffs' false
arrest claims.*fn12 Escalera, 361 F.3d at 744 ("If there
remains an objective basis to support arguable probable cause,
remaining factual disputes are not material to the issues of
qualified immunity. . . .").
C. State Law Assault and Battery Claims
Plaintiffs base their assault and battery claims on the fact of
the arrests, which they have contended were unlawful, rather than
on any alleged excessive use of force. (Bynon Decl. Ex. A, Compl.
¶¶ 115-117.) Such a claim is cognizable; see Sulkowska v. City
of New York, 129 F.Supp.2d 274, 294 (S.D.N.Y. 2001) ("If an
arrest is determined to be unlawful, any use of force against a
plaintiff may constitute an assault and battery, regardless of
whether the force would be deemed reasonable if applied during a
lawful arrest.") (citing Johnson v. Suffolk County Police
Dep't, 245 A.D.2d 340, 665 N.Y.S.2d 440, 440 (2d Dep't 1997)).
However, since the evidence in the record creates no material
factual dispute as to the existence of probable cause, and since
plaintiffs have not argued for nor submitted evidence in support
of any other theory of liability for assault and battery, summary
judgment is granted as to these claims.
III. Malicious Prosecution
Because a claim of malicious prosecution brought pursuant to
42 U.S.C. § 1983 is governed by state law, Russell v. Smith,
68 F.3d 33, 36 (2d Cir. 1995), plaintiffs' federal and state claims
are analyzed together. In order to prove malicious prosecution
under New York law, plaintiffs must show (1) that the defendants
either commenced or continued criminal proceedings against them;
(2) that the proceedings terminated in plaintiffs' favor; (3)
that there was no probable cause for the criminal proceedings;
and (4) that the proceedings were instituted with actual malice.
Posr v. Doherty, 944 F.2d 91, 100 (2d Cir. 1991). While
evidence of the first prong of this test is plain, since criminal proceedings were
unquestionably commenced against all plaintiffs, the other three
prongs are at best in doubt. While factual disputes may exist as
to whether the proceedings terminated in plaintiffs'
favor*fn13 and, theoretically, as to whether actual malice
motivated the proceedings, the existence of probable cause for
the proceedings defeats plaintiffs' malicious prosecution claim.
Probable cause to arrest and probable cause to commence a
criminal proceeding are not interchangeable concepts, and the
existence of the former does not necessarily imply the existence
of the latter. However, when an officer effects an arrest with
probable cause, and there is no evidence that authorities became
aware of exculpatory evidence undermining the probable cause to
arrest between the time of the arrest and the ensuing
prosecution, then probable cause to proceed exists to defeat a
claim of malicious prosecution. See Lowth v. Town of
Cheektowaga, 82 F.3d at 571 ("In order for probable cause to
dissipate, the groundless nature of the charges must be made
apparent by the discovery of some intervening fact.") Plaintiffs
attempt to suggest lack of probable cause to proceed by
contending that the arresting officers intentionally
misrepresented the facts underlying the arrests, and therefore
there was no probable cause to prosecute the plaintiffs.
Specifically, they argue that the officers were aware that
plaintiffs were not trespassing, that the police had removed any
barricades that had stood in the demonstrators' path, and that
the arrests had been effected absent probable cause, but did not
provide the prosecutors with complete information as to these
purported facts. (Pls.' Mem. in Opp. to Defs.' Mot. for Summ. J.
23-24.) The court, of course, has found that the undisputed
evidence shows that plaintiffs did not have authorization to
stage a demonstration in the Restricted Zone, that the police did
not remove at least the second set of barricades or otherwise
authorize the demonstrators to march to Ground Zero, and, therefore, that there
was probable cause for the arrests. Moreover, the record does not
suggest that any facts later emerged to contradict the essential
facts underlying the arrests. Since no reasonable jury could find
that probable cause for plaintiffs' arrests was vitiated by any
subsequently emerging facts, summary judgment is appropriate as
to plaintiffs' malicious prosecution claims.
IV. First Amendment Claims
Plaintiffs have alleged that defendants arrested and prosecuted
them in retaliation for plaintiffs' exercising their First
Amendment right to petition for redress of their grievances
against the City. (Bynon Decl. Ex. A, Compl. ¶¶ 107-110.) "To
establish a First Amendment retaliation claim, a plaintiff must
prove: (1) he has an interest protected by the First Amendment;
(2) defendants' actions were motivated or substantially caused by
his exercise of that right; and (3) defendants' actions
effectively chilled the exercise of his First Amendment right."
Cardew v. New York State Dep't of Corr. Servs., No. 01 Civ.
3669, 2004 WL 943575, at *6 (S.D.N.Y. Apr. 30, 2004) (quoting
Curley v. Vill. of Suffern, 268 F.3d 65, 73 (2d Cir. 2001).
Plaintiffs have demonstrated a constitutionally protected
interest, in that the right to petition is clearly encompassed in
the First Amendment's guarantee of the right of free speech.
However, the second prong cannot be sustained as a matter of law
inasmuch as defendants' arrest and prosecution were supported by
probable cause. Yajure v. DiMarzo, 130 F. Supp. 2d 568, 573-74
(S.D.N.Y. 2001) (citing cases). Probable cause defeats a First
Amendment retaliation claim even where a plaintiff is prosecuted
in an "unsuccessful attempt to deter or silence criticism of the
government." Mozzochi v. Borden, 959 F.2d 1174, 1180 (2d Cir.
1992). Plaintiffs have in any event offered only conjecture in
support of their claim that the arrests and prosecutions were in
retaliation for speaking out against the plan to reduce staffing
at Ground Zero, and that some of the plaintiffs were targeted because they were recognizable as
union officials. (Bynon Decl. Ex. A, Compl. ¶¶ 40, 78, 87.) It is
not contended that any arrests were made at the rally at West and
Chambers Street; the only people arrested were those who marched
south into the Restricted Zone. Because this claim fails as a
matter of law, summary judgment is granted as to plaintiffs'
First Amendment claim.
V. Monell Liability of the City of New York
A municipality is considered a "person" subject to direct suit
under 42 U.S.C. § 1983 for deprivations of constitutional rights
that are grounded in an official policy or custom. Monell v.
Dep't of Soc. Servs. of the City of New York, 436 U.S. 658,
690-91, 98 S. Ct. 2018, 2036 (1978). No genuine issue of material
fact has been raised as to the existence of a constitutional
violation. Moreover, even if a constitutional violation has been
shown, the plaintiffs have failed to raise a material issue of
fact as to the existence of any municipal policy or custom
leading to the arrests or prosecution of any of the plaintiffs.
Therefore, the claims against the City of New York may not
VI. Claims against Giuliani, Kerik, and Von Essen
Plaintiffs also assert claims under 42 U.S.C. § 1983 against
defendant supervisory officials Giuliani, Kerik, and Von Essen in
their individual capacities. "A supervisory official is liable
for constitutional violations if he or she (1) directly
participated in the violation; (2) failed to remedy the violation
after learning of it through a report or appeal; (3) created a
custom or policy fostering the violation or allowed the custom or
policy to continue after learning of it; or (4) was grossly negligent in supervising subordinates who caused
the violation." Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir.
1997). Plaintiffs have failed to raise a triable issue of fact as
to the existence of any constitutional violations that could
provide a predicate for supervisor liability. Even if such an
issue had been raised, plaintiffs have offered no evidentiary
basis for a reasonable jury to find that Giuliani, Kerik, or Von
Essen participated in the decision to arrest any of the
plaintiffs, or in the decision of the district attorney to
prosecute. These defendants are entitled to summary judgment as
to all claims against them.
VII. Intentional Infliction of Emotional Distress
Plaintiffs claim that their arrests and prosecution so
"transcended the bounds of decency as to be regarded as atrocious
and intolerable in a civilized society," and caused them
emotional distress. (Pls.' Mem. in Opp. to Defs.' Mot. for Summ.
J. 22.) Defendants argue that plaintiffs failed to properly
present this theory of liability in its notice of claim to the
City, warranting dismissal of this claim. (Defs.' Mem. in Support
of Mot. for Summ. J. 37.) Even if plaintiffs had provided
evidence that could lead a reasonable jury to conclude that
defendants' behavior was so outrageous as to rise to the level of
intentional infliction of emotional distress, which they have
not, it is clear that the practice of New York State courts to
construe the notice of claim requirements strictly requires the
dismissal of this claim as to the City. See Hemrie v. City of
New York, No. 96 Civ. 213, 2000 WL 1234594, at *2 (S.D.N.Y. Aug.
The events that gave rise to this action were unquestionably
distressing and demoralizing for the arrested firefighters and
their friends and loved ones, particularly under the grim
circumstances facing the FDNY at the time. The November 2, 2001
episode was regrettable and no doubt created tensions among New
York City's public safety workers at a time when unity was sorely needed. Any residual harm still suffered by the
plaintiffs from this incident, however, cannot be remedied by
this court. For the reasons set forth above, the court grants
defendants' motion for summary judgment as to all of plaintiffs'
claims, and dismisses this action in its entirety. The Clerk is
directed to close the case.