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Genia v. New York State Troopers

March 20, 2007

REBECCA G. GENIA, HERMAN M. QUINN, AND GORDELL WRIGHT, PLAINTIFFS,
v.
NEW YORK STATE TROOPERS PARKER, GUSPARIK, SUMMERLIN, LIBERTI, AND LEWIS, AND JOHN DOES 1-10, DEFENDANTS.



The opinion of the court was delivered by: Joseph F. Bianco, District Judge

MEMORANDUM AND ORDER

Plaintiffs Rebecca G. Genia ("Genia"), Gordell Wright ("Wright"), and Herman M. Quinn ("Quinn") (collectively, "plaintiffs"), filed the instant action against New York State Troopers Parker ("Trooper Parker"), Gusparik ("Trooper Gusparik"), Summerlin ("Trooper Summerlin"), Liberti ("Trooper Liberti"), Sergeant Lewis ("Sergeant Lewis"), and John Does 1-10*fn1 (collectively, "defendants"), pursuant to 42 U.S.C. § 1983, alleging false arrest, excessive force, malicious prosecution and improper search and seizure under the Fourth Amendment and suppression of plaintiffs' free speech rights under the First Amendment.*fn2

Defendants now move, under Federal Rule of Civil Procedure 56, for summary judgment dismissing all of plaintiffs' claims. For the reasons that follow, defendants' motion is denied in part and granted in part.

I. BACKGROUND

A. The Facts

The following facts are taken from the parties' depositions, declarations, exhibits and respective Local 56.1 statements of facts.*fn3 Upon consideration of a motion for summary judgment, the Court construes the facts in the light most favorable to the non-moving party. See Capobianco v. City of New York, 422 F.3d 47, 50 (2d Cir. 2005). Thus, with regard to defendants' motion for summary judgment, the Court shall construe the facts in favor of plaintiffs.

Plaintiffs Genia, Quinn, and Wright are tribal members of the Shinnecock Indian Nation. (Defs.' Rev. 56.1 at ¶ 1.) On the morning of February 24, 2000, plaintiffs Genia and Wright participated in a demonstration protesting the construction and development by private landowners on land that the demonstrators claimed to be ceremonial land of the Shinnecock Indian Nation.*fn4 (Defs.' Rev. 56.1 at ¶ 13.) The demonstration took place at St. Andrew's Road, in the Town of Southampton, in Suffolk County, New York. (Id.) At approximately 8:05 a.m., Trooper Parker, who was serving on desk duty, received a telephone call regarding activity at the St. Andrew's site. (Id. at ¶ 14.) In response, Troopers Liberti, Summerlin and Gasparik were dispatched to the site.*fn5 (Id. at ¶ 15.) At 8:22 a.m., Sergeant Schultz called the New York State Police's Riverhead facility and requested more personnel. (Id. at ¶ 16.)

One month prior to the February 24, 2000 protest, there had been another protest at the St. Andrew's site, in which Wright, Genia and others were involved. (Id. at ¶ 92.) The protest resulted in the cessation of construction work because the developer did not have the necessary papers from the Town of Southampton. (Id.) According to Wright, after learning that the construction work had resumed a few days earlier, he went to the site at approximately 8:00 a.m. on February 24 to "see whether `anything was changed' with respect to the developer's necessary papers, an to determine the legality of the developer's resumption of constructionrelated activities at the site." (Brewington Decl., Ex. G.) When Wright arrived at the site, approximately ten to fifteen Shinnecock tribal members and several construction workers were present. (Id.) Approximately five minutes later, Trooper Summerlin arrived at the site, and, according to Wright, approached the demonstrators and threatened to arrest them. (Id.) The demonstrators, including Wright, told Troopers Summerlin and Liberti that they wanted to see the developer's paperwork. (Id.) While the demonstrators and the troopers conversed, a bulldozer approached. (Defs.' Rev. 56.1 at ¶ 98.) The bulldozer stopped near the protestors, prompting a trooper to say "you got to get out of the way" and to tell Wright that he was being arrested for trespassing. (Brewington Decl., Ex. G.) Sergeant Lewis and Trooper Liberti handcuffed Wright and placed him under arrest. (Defs.' Rev. 56.1 at ¶ 104.)

Immediately before her arrest, Genia was standing on the shoulder of St. Andrew's Road, facing the road, as a construction bulldozer approached her and the other demonstrators. (Id. at ¶ 46.) The bulldozer stopped within ten feet of Genia. (Brewington Decl., Ex. F.) According to Genia, Trooper Summerlin, who was standing in front of Genia, cursed at her and pushed her. (Id.) Along with Trooper Liberti and Sergeant Schultz, Trooper Summerlin then brought Genia over to a car and rear-handcuffed her. (Id.) Troopers Summerlin and Liberti also escorted Genia to a New York State Police ("NYSP") car and put her inside. (Defs.' Rev. 56.1 at ¶ 52.) While she was being escorted to the car, Trooper Liberti allegedly twisted Genia's handcuffs, and Genia told him "you're hurting me." (Brewington Decl., Ex. F.)

Between 9:00 a.m. and 10:00 a.m., after Genia and Wright had already been arrested and were driven away from the demonstration site by NYSP troopers, Quinn was driving his van on St. Andrew's Road and came upon the demonstrators. (Defs.' Rev. 56.1 at ¶ 57, 69.) He stopped his van and got out of the vehicle. (Id.) Trooper Gasparik approached Quinn and told him that he had to move his van. (Id. at ¶ 73.) In response, Quinn told Trooper Gasparik that he was tying his shoe. (Brewington Decl., Ex. H.) Trooper Parker then approached Quinn from the rear and asked him whether he was trying to be funny, and whether he wanted to be arrested or locked up. (Id.) Trooper Parker handcuffed Quinn and placed him in an NYSP car. (Defs.' Rev. 56.1 at ¶¶ 78, 82.)

The arrests and handcuffings were recorded by a video camera operated automatically from a NYSP car at the site.*fn6 (Id.) Each plaintiff was placed in a NYSP car and driven from the site of the demonstration to NYSP's facility in Riverhead, New York, for processing. (Id. at ¶ 22.) At the Riverhead facility, Trooper Summerlin spoke with each plaintiff and processed the relevant paperwork. (Id. at ¶ 23.) Trooper Summerlin then drove the plaintiffs to Southampton Town Court to be arraigned. (Id. at ¶ 24.)

Genia and Wright were each charged with disorderly conduct and resisting arrest in violation of New York Penal Laws §§ 240.20 and 205.30 in criminal informations signed by Troopers Summerlin and Liberti, respectively. (Id. at ¶ 25.) Quinn was charged with disorderly conduct in violation of New York Penal Law §240.20(5) and parking on a roadway in violation of New York Vehicle and Traffic Law §1201(a). (Brewington Decl., Ex. A.) On October 5, 2001, Southampton Town Justice Thomas J. DeMayo dismissed the resisting arrest charges against Genia and Wright as facially insufficient. (Defs.' Rev. 56.1 at ¶¶ 33, 60; Brewington Decl., Ex. B.) On October 12, 2001, the Suffolk County District Attorney's Office (hereinafter the "D.A.") faxed proposed changes to the charging informations from Troopers Summerlin and Liberti in order to reinstate the resisting arrest charges. (Defs.' Rev. 56.1 at ¶¶ 33, 60.) Trooper Liberti's superior directed him to "call the ADA & get this done asap." (Id. at ¶ 61.) As Trooper Summerlin had retired from the New York State Police earlier that year, Trooper Liberti brought the amended information as to Genia to Trooper Summerlin's home, where he signed it. (Id. at ¶ 62.) On December 18, 2001, the D.A. recharged plaintiffs with resisting arrest. (Id. at ¶ 34.) After a criminal trial, a jury found Genia and Wright not guilty, and all charges against them were dismissed. (Id. at ¶ 27; Brewington Decl., Ex. A.) The charges against Quinn were dismissed prior to submission of the case to the jury. (Defs.' Rev. 56.1 at ¶ 27.)

B. Procedural History

On February 21, 2003, plaintiffs filed the instant action, which originally named the State of New York and the New York State Police Department as parties. On March 31, 2003, plaintiffs amended their complaint, naming only the individual state troopers as defendants and asserting claims under 42 U.S.C. § 1983 and the First, Fourth, Fifth,*fn7 Eighth*fn8 and Fourteenth Amendments, for improper search and seizure, false arrest, malicious prosecution, excessive force, and violations of plaintiffs' free speech rights.

On September 19, 2006, defendants moved for summary judgment on all claims. This case was reassigned to the undersigned on October 2, 2006. Oral argument was held on February 21, 2007.

II. DISCUSSION

A. Standard of Review

The standards for summary judgment are well-settled. Pursuant to Federal Rule of Civil Procedure 56(c), a court may not grant a motion for summary judgment unless "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 judgment as a matter of law." Fed. R. Civ. P. 56(c); Globecon Group, LLC v. Hartford Fire Ins. Co., 434 F.3d 165, 170 (2d Cir. 2006). The moving party bears the burden of showing that he or she is entitled to summary judgment. See Huminski v. Corsones, 396 F.3d 53, 69 (2d Cir. 2005). The 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." Amnesty Am. v. Town of West Hartford, 361 F.3d 113, 122 (2d Cir. 2004); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (summary judgment is unwarranted if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party").

Once the moving party has met its burden, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts . . . . [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial." Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed. 2d 538 (1986)). As the Supreme Court stated in Anderson, "[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." 477 U.S. at 249-50 (citations omitted). Indeed, "the mere existence of some alleged factual dispute between the parties" alone will not defeat a properly supported motion for summary judgment. Id. at 247-48. Thus, the nonmoving party may not rest upon mere conclusory allegations or denials, but must set forth "concrete particulars" showing that a trial is needed. R.G. Group, Inc. v. Horn & Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984) (internal quotations omitted). Accordingly, it is insufficient for a party opposing summary judgment "merely to assert a conclusion without supplying supporting arguments or facts." BellSouth Telecomms., Inc. v. W.R. Grace & Co., 77 F.3d 603, 615 (2d Cir. 1996) (internal quotations omitted).

B. Plaintiffs' Claims Under 42 U.S.C. § 1983

To prevail on a claim under section 1983, a plaintiff must show: (1) the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, (2) by a person acting under the color of state law. 42 U.S.C. § 1983. "Section 1983 itself creates no substantive rights; it provides only a procedure for redress of the deprivation of rights established elsewhere." Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993) (citing City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985)). "Claims for false arrest or malicious prosecution, brought under § 1983 to vindicate the Fourth and Fourteenth Amendment right to be free from unreasonable seizures, are `substantially the same' as claims for false arrest or malicious prosecution under state law." Jocks v. Tavernier, 316 F.3d 128, 134 (2d Cir. 2003) (quoting Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) (false arrest) and citing Conway v. Village of Mount Kisco, 750 F.2d 205, 214 (2d Cir. 1984) (malicious prosecution)).

1. False Arrest / False Imprisonment*fn9

The Second Circuit has established that "[t]he existence of probable cause to arrest constitutes justification and `is a complete defense to an action for false arrest,' whether that action is brought under state law or under Section 1983." Weyant, 101 F.3d at 852 (quoting Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994) and citing Broughton v. State, 37 N.Y.2d 451, 458 (N.Y. 1975) (holding that, under New York law, "[j]ustification may be established by showing that the arrest was based on probable cause") and Singer v. Fulton Cty. Sheriff, 63 F.3d 110, 118 (2d Cir. 1995) ("There can be no federal civil rights claim for false arrest where the arresting officer had probable cause.")). In general, probable cause is established where "the arresting officer has `knowledge or reasonably trustworthy information sufficient to warrant a person of reasonable caution in the belief that an offense has been committed by the person to be arrested.'"*fn10 Singer, 63 F.3d at 119 (quoting O'Neill v. Town of Babylon, 986 F.2d 646, 650 (2d Cir. 1993) (citation omitted)); See also Weyant, 101 F.3d at 852 (citing Dunaway v. New York, 442 U.S. 200, 208 n.9 (1979)) (additional citations omitted). Furthermore, "the validity of an arrest does not depend upon an ultimate finding of guilt or innocence." Peterson v. Cty. of Nassau, 995 F. Supp. 305, 313 (E.D.N.Y. 1998) (citing Pierson v. Ray, 386 U.S. 547, 555 (1967)). "Rather, the court looks only to the information the arresting officer had at the time of the arrest." Id. (citing Anderson v. Creighton, 483 U.S. 635, 641 (1987)). Moreover, a determination of probable cause is based upon the "totality of the circumstances, [and] `where law enforcement authorities are cooperating in an investigation . . ., the knowledge of one is presumed shared by all.'" Calamia v. City of New York, 879 F.2d 1025, 1032 (2d Cir. 1989) (quoting Illinois v. Andreas, 463 U.S. 765, 771 n.5 (1983)) (additional citations omitted); see also Bernard, 25 F.3d at 102 (citing Illinois v. Gates, 462 U.S. 213, 230 (1982)). "The question of whether or not probable cause existed may be determinable as a matter of law if there is no dispute as to the pertinent events and the knowledge of the officers, or may require a trial if the facts are in dispute." Weyant, 101 F.3d at 852 (citations omitted). Where an issue of probable cause is "factual in nature," it must be presented to a jury. Moore v. Comesanas, 32 F.3d 670, 673 (2d Cir. 1994) (citations omitted).

Moreover, an officer who merely observes or assists in an arrest, even if he is not the "arresting officer" may be liable for failing to intercede to prevent an arrest without probable cause.*fn11 See O'Neill v. Krzeminski, 839 F.2d 9, 11 (2d Cir. 1988) ("A law enforcement officer has an affirmative duty to intercede on the behalf of a citizen whose constitutional rights are being violated in his presence by other officers.") (citations omitted).

According to defendants, Troopers Summerlin, Lewis and Liberti had probable cause to arrest Genia and Wright: (1) for trespassing, as the Shinnecock demonstrators had not proven title to the land on which they were demonstrating, nor had they shown proof of a valid stay of the construction;*fn12 and (2) for disorderly conduct, as both Genia and Wright had allegedly blocked traffic by stopping a bulldozer from entering the construction site.*fn13 (Defs.' Br., at 8-9.) Defendants assert that Troopers Gasparik and Parker had probable cause to arrest Quinn for violating New York Vehicle and Traffic Law § 1201(a), because he parked his van in a manner that blocked traffic on St. Andrew's Road. (Defs.' Br., at 9-10.)

a. Probable Cause to Arrest Genia

(1) Trespassing

N.Y. Penal Law § 140.05 provides that: "[a] person is guilty of trespass when he knowingly enters or remains unlawfully in or upon premises. Trespass is a violation." Under N.Y. Penal Law § 140.00, a person cannot trespass upon premises that are "open to the public" unless "he defies a lawful order not to enter or remain, personally communicated to him by the owner of such premises or other authorized person." The determination of whether premises are "open to the public" is "usually a question of fact." Davis v. City of New York, 373 F. Supp. 2d 322, 332 (S.D.N.Y. 2005) (collecting New York state cases).

First, it is contested whether or not Genia was standing on the actual construction site, which may or may not have been open to the public. The videotape is inconclusive as to exactly where Genia was standing just prior to her arrest. (Brewington Decl., Ex. O.) According to Genia, she was standing on the shoulder of St. Andrew's Road, facing the road, with her back to the construction site. (Brewington Decl., Ex. F.) In fact, Trooper Summerlin stated that when he handcuffed Genia, she was actually standing on the road, rather than on the contested property. (Brewington Decl., Ex. N.) Likewise, Trooper Liberti, who assisted with Genia's arrest, stated in his deposition testimony that just prior to arrest, Genia had been standing in the road, "against the troop car." (Brewington Decl., Ex. J.) At trial, Reverend Holly Davis ("Davis"), one of the protestors, asserted that during Genia's arrest, Trooper Summerlin told Davis that Genia was being arrested for trespassing. (Brewington Decl., Ex. N.) Davis responded "I watched you arrest her on the double yellow line, that's not trespassing." (Id.) Similarly, Elizabeth Haile ("Haile"), a member of the Shinnecock Nation, testified that she saw Genia being "pulled toward the double yellow line in the middle of the street," and stated "[y]ou can't be arrested in the middle of the street, she is not doing anything." (Id.) Based upon these statements, a reasonable jury could conclude that Genia was not standing on the construction site. As plaintiffs have created a material question of fact as to where Genia was standing prior to her arrest, this Court cannot conclude as a matter of law that Trooper Summerlin had probable cause to arrest Genia for "knowingly enter[ing] or remaining unlawfully . . . upon premises." N.Y. Penal Law § 140.05.

Second, it cannot be determined as a matter of law that during the demonstration, Genia was standing upon premises that were not "open to the public," or that, if open to the public, she defied an order by an "owner or authorized person" not to enter or to remain there. N. Y. Penal Law § 140.05. Genia testified that the foreman was given the opportunity to ask the protestors to leave, and declined to do so. At her deposition, Genia stated that Trooper Summerlin had approached the foreman and asked "did you tell them to leave?" When the foreman responded "no," Trooper Summerlin said "you have to tell them to leave if you want me to arrest them." (Brewington Decl., Ex. F.) Genia did not recall whether the foreman responded, and, if so, what he said. (Id.) There is no indication that, once prompted by Trooper Summerlin, the foreman ordered the protestors to leave the property. In addition, Genia testified that at least one authority figure, a representative of the Department of Transportation, had informed her and other demonstrators that they "were standing on public property." (Id.) In Wright's deposition testimony, he corroborated Genia's account that the demonstrators had been told that they were lawfully conducting their protest in an area that was "open to the public," stating

We had asked what was public land where, [sic] are you allowed to stand, and he told us on the side of the road. They showed us where the strip was where we were allowed to stand and we were standing there. It wasn't in the street, it was on the side, the shoulder, the grassy area.*fn14

(Brewington Decl., Ex. G.) Reuben Valdez ("Valdez"), a Shinnecock demonstrator, stated that at one point during the protest, a member of the public from the nearby "Greek Church neighborhood" walked his dog through the property. (Brewington Decl., Ex. N.) When Valdez pointed the individual out to the police officers and asked "isn't he trespassing?," the troopers did nothing. (Id.) Moreover, at trial, several troopers testified that they had not ordered the demonstrators to leave the premises, but had merely informed them that they were not to block the entrance to the construction site.*fn15 Trooper Lewis testified that he had explained to the protestors that "there was no problem with a peaceful protest as long as access to the construction site wasn't blocked." (Brewington Decl., Ex. N.) Similarly, Sergeant Schultz advised the demonstrators that "they could conduct a peaceful demonstration, but they could not block the highway or the entrance of the construction site." (Id.) According to Trooper Summerlin, when he first approached Genia at the demonstration site, he merely stated that she "was not to impede any traffic" and made no mention of trespassing. (Id.)

Because there are material questions of fact as to (1) whether Genia was standing on the contested property or was in the road; and (2) whether Genia stood in an area that was "open to the public," and if so, whether she defied any order from an "authorized person" to leave, this Court cannot find as a matter of law that Trooper Summerlin had probable cause to arrest Genia for trespassing.

(2) Disorderly Conduct

Defendants also argue that Trooper Summerlin had probable cause to arrest Genia for violating N.Y. Penal Law § 240.20(5), which defines disorderly conduct as follows: "A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof," "[h]e obstructs vehicular or pedestrian traffic." N.Y. Penal Law § 240.20. According to the police report, Genia "did obstruct vehicular traffic by standing in the path of a construction vehicle and remaining in path after being ordered to move by law enforcement personnel." (Brewington Decl., Ex. C.)

According to Trooper Summerlin, he had advised Genia that she could not obstruct the flow of traffic entering and leaving the construction site. (Brewington Decl., Ex. I.) At trial, Trooper Summerlin testified that, just before her arrest, the engine of the bulldozer had started, and Genia "screamed `no' and started running toward the bulldozer as it was attempting to enter the property." (Brewington Decl., Ex. N.) According to Trooper Summerlin, he and Trooper Liberti then tried to restrain Genia and handcuffed her. (Id.) Trooper Summerlin explained that he had arrested Genia for "screaming" and "preventing the truck from coming and driving onto the Parish Pond project property." (Id.) Sergeant Schultz also testified that Genia "was blocking the entrance and would not allow the heavy equipment to enter on to the construction site." (Id.) Valdez described Genia as "standing in the road, shoulder to shoulder, in a line" with other demonstrators, when "they drove the equipment right up inches" from the line of people. (Id.) However, Genia testified that when the bulldozer began to approach the site, she was standing on the shoulder of St. Andrew's Road, engaged in a conversation with Trooper Lewis, the construction foreman and a representative from the Department of Transportation. (Brewington Decl., Ex. F.) The bulldozer continued to approach Genia until it came to a stop approximately ten feet from where she stood. (Id.) Similarly, Wright explained that he and Genia had been engaged in a dialogue with several troopers and trial members when the bulldozers began to approach them. (Brewington Decl., Ex. N.) According to Wright, while they were still in conversation, the bulldozer stopped, and a trooper said "[y]ou got to get out of the way," before telling Genia and Wright that they were under arrest for trespassing. (Id.)

Based upon the factual record before the Court, there are disputed issues of fact as to whether Genia obstructed traffic by blocking the path of the bulldozer. Due to obstructions and the distance of the camera from the demonstrators, the videotape does not clearly indicate whether Genia blocked the bulldozer. (Brewington Decl., Ex. O.) According to some of the trial and deposition testimony, see supra, Genia was standing in the middle of the road, rather than at the entrance to the construction site. The conflicting accounts of where Genia was located at the time of her arrest indicate that there are questions of fact as to whether defendants had probable cause to arrest Genia for disorderly conduct.

Moreover, even if Genia did block the bulldozer's access to the construction site, there are also disputed issues of fact as to whether she acted with "intent to cause public inconvenience, annoyance or alarm" or "recklessly created a risk thereof" as required by the disorderly conduct statute. N.Y. Penal Law § 240.20. By Genia's own account, she was talking with the troopers, other protestors, and a DOT representative at the time that the bulldozer approached.*fn16 Considering that the officers were aware of the circumstances underlying Genia's behavior, which Genia contends show an absence of intent to cause "public inconvenience, annoyance or alarm," a jury must decide whether the officers had probable cause to arrest her with regard to the intent element of the disorderly conduct statute.

Therefore, this Court cannot conclude, as a matter of law, that defendants Summerlin and Liberti had probable cause to arrest plaintiff Genia, either for trespassing or disorderly conduct.

b. Probable Cause to Arrest Wright

(1) Trespassing

According to defendants, Troopers Lewis and Liberti had probable cause to arrest Wright for trespassing and disorderly conduct. (Defs.' Br., at 8-9.) For the same reasons that this Court finds that it cannot determine, as a matter of law, that defendants had probable cause to arrest Genia for trespassing, the Court finds that there are issues of fact precluding summary judgment on whether there was probable cause to arrest Wright for trespassing.

First, as in the case of Genia, there is a question of fact as to whether Wright was actually standing on the contested property. Wright testified at his deposition that prior to his arrest, he had been standing on the side of the road in a grassy area designated as "public" land (described supra, in Part B(a)(1)). (Brewington Decl., Ex. G.) According to Wright, he had been standing "[o]n that piece where they said we were allowed to stand" when his arms were "grabbed" by Trooper Lewis. (Brewington Decl., Ex. G.) Haile corroborated this account, stating that just prior to his arrest, Wright had been standing "on the other side of the street [from Haile], and he was standing just the way we were told to stand." (Brewington Decl., Ex. N.) According to Trooper Lewis, at the time of Wright's arrest, he was "in the roadway," "standing on the pavement," rather than on the construction site. (Brewington Decl., Ex. N.) Sergeant Schultz described Wright as "refus[ing] to move out of the way to allow . . . the construction equipment on the sites," but did not state whether he was standing on the premises, in the road, or in a specially designated "public" area in a grassy portion of the shoulder of the road. (Brewington Decl., Ex. N.)

Second, there are material questions of fact as to whether Wright was standing in an area that was "open to the public" or whether he defied a lawful order to leave or not to remain in such public area. See supra.

(2) Disorderly Conduct

Likewise, the Court finds that there are questions of fact with regard to whether defendants Lewis and Liberti had probable cause to arrest Wright for disorderly conduct. As in the case of Genia, the videotape is inconclusive as to where Wright was standing and whether he blocked the path of the bulldozer. (Brewington Decl., Ex. O.) According to Trooper Lewis, the arresting officer, Wright "was standing in the roadway in front of the access point facing the construction equipment with his arms crossed." (Brewington Decl., Ex. N) Similarly, Sergeant Schultz testified that Wright "placed himself in the front of the piece of heavy equipment that was trying to come down and enter the construction site. He stood in front, folded his hands across his chest, and refused to move out of the way to allow this construction equipment on the sites." (Brewington Decl., Ex. N.) Trooper Lewis told Wright to move out of the path of approaching vehicles. (Brewington Decl., Ex. L.) According to Trooper Lewis, he provided Wright with an opportunity to comply with the order, and Wright failed to do so. (Id.) However, at trial, Wright testified that he "wasn't standing in the road blocking the bulldozer," but was "having a conversation with the State Trooper, and that is when the bulldozer came to us." (Brewington Decl., Ex. N.) Upon further questioning by the court, Wright explained "as the conversation was going on between us and State Troopers, the bulldozer came out into the road and came right in front of me." (Id.) When he finally received orders from the troopers to move, the instructions were issued simultaneously with physical force: "they told us to get out of the way, and at the same ...


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