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September 24, 2004.

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 weeks.

  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. (Id.)

  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, videotaped footage.)

  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.
Q. Why?
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 ...

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