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McMillan v. City of New York

February 4, 2009


The opinion of the court was delivered by: Townes, United States District Judge


Plaintiff, Jimmy E. McMillan III ("Plaintiff") brings this action pursuant to 42 U.S.C. § 1983 against the City of New York, the New York City Police Department ("NYPD"), Lieutenant Joseph Santangelo, and Police Officers James Armstrong and Karl Richards (collectively, the "Defendants"), principally alleging that he was falsely arrested while gathering the signatures needed to place him and his "Rent is Too Damn High Party" on the ballot for the gubernatorial elections in 2002. Plaintiff's Amended Complaint ("Am. Comp.") ¶¶ 3-4. Defendants now move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, principally arguing that the police had probable cause to arrest Plaintiff. For the reasons set forth below, Defendants' motion is granted and this action is dismissed.


By his own account, Plaintiff is a 62-year-old Vietnam Veteran who suffered serious physical and mental problems as a result of his military service. Deposition of James E. McMillan, III ("Plaintiff's Deposition") (attached as Ex. D to the Affidavit of John H. Graziadei) at 48.*fn1 Despite his history of problems, Plaintiff decided to run for Governor of the State of New York in 2002. According to Plaintiff, one of the reasons he "wanted to takeover [sic] this state as governor" was to stop "some things going on within the [police] department." Id. at 119-20. At his deposition, Plaintiff candidly admitted that he not only did not trust the police, id. at 119, but believed that they were trying to kill him. Id. at 116.

The incident at issue in this case took place late in the afternoon on July 3, 2002, as Plaintiff was attempting to collect the signatures necessary to place his name and that of his party on the gubernatorial ballot. By all accounts, Plaintiff had set up a table in front of 540 Nostrand Avenue, near a stairwell leading to the Nostrand Avenue "A" train station. He was in possession of a bullhorn, which he had purchased for $99 and was using periodically. Id. at 155, 164. However, Plaintiff did not have a permit to use any sort of sound amplification device. Id. at 164-65.

At approximately 6:00 that evening, Joseph Santangelo -- then, a sergeant assigned to the 79th Precinct -- and Police Officer Karl Richards were patrolling together near Nostrand Avenue and Fulton Streets, within the confines of the 79th Precinct. Affidavit of Joseph Santangelo ("Santangelo Aff.") at ¶¶ 2-3; Declaration of Karl Richards ("Richards Dec.") at ¶¶ 2-3. According to both officers, "numerous pedestrians approached [them] to complain about an individual who was standing next to a table he had placed near the Nostrand Avenue subway station." Santangelo Aff. at ¶ 3; Richards Dec. at ¶ 3. These pedestrians complained that the individual was blocking traffic on the sidewalk and subway stairs, and was shouting through a bullhorn "in close proximity to pedestrians." Santangelo Aff. at ¶¶ 4-5; Richards Dec. at ¶¶ 4-5.

As Santangelo and Richards proceeded north on Nostrand Avenue, they observed Plaintiff standing near the subway entrance. Santangelo Aff. at ¶ 6; Richards Dec. at ¶ 6. According to the officers, Plaintiff had positioned a table bearing his campaign literature "in such a way that he created a tight bottleneck through which pedestrians had to pass in order to enter and exit the subway station and move down the street." Santangelo Aff. at ¶ 7; Richards Dec. at ¶ 7. Both officers recalled that Plaintiff was shouting at nearby pedestrians through his bullhorn, with the volume set so high as to distort Plaintiff's voice and to create feedback, resulting in a "high-pitched, siren-like noise." Santangelo Aff. at ¶¶ 8-9; Richards Dec. at ¶¶ 8-9.

At a deposition conducted on January 18, 2005, Plaintiff denied that he was blocking access to the subway. Plaintiff's Deposition at 162. Although Plaintiff testified that he "never measured how far" he was from the station entrance, id., he recalled that he was "a distance" from the steps, "[m]aybe 25 yards." Id. at 152. Plaintiff also denied that he was using his bullhorn when the officers first approached, id. at 177, though he readily admitted having used the bullhorn at other times that day. Id. at 164.

Both officers recalled that Santangelo approached Plaintiff and asked whether he had a permit to use the bullhorn. Santangelo Aff. at ¶ 11; Richards Dec. at ¶ 11. Plaintiff, however, was hard of hearing and was relying principally on lip reading in order to understand what other people were saying. Plaintiff's Deposition at 123-24. Plaintiff understood that Santangelo was talking about a permit, id. at 174-75, but apparently thought Santangelo was demanding to see "a permit for petitioning for signatures." Id. at 134. At his deposition, Plaintiff initially testified that "[n]obody said nothing to [him] about a bullhorn," but immediately qualified that answer by saying, "If they did I didn't hear [them]." Id. at 169.

Both officers recalled that Plaintiff responded to Santangelo's inquiry by stating that he did not have a permit. Santangelo Aff. at ¶ 12; Richards Dec. at ¶ 12. According to the officers, Santangelo then informed Plaintiff that he was not permitted to use a sound amplification device without a permit. Santangelo Aff. at ¶ 13; Richards Dec. at ¶ 13. Santangelo also asked Plaintiff to move a short distance from the subway steps in order to allow people to enter and leave the station. Santangelo Aff. at ¶ 15; Richards Dec. at ¶ 15. Although Santangelo assured Plaintiff that "he could continue to distribute his pamphlets and speak to the public provided he did not interfere with or impede the flow of pedestrian traffic and did not use his bullhorn," id., Plaintiff continued to use his bullhorn and "indicated by word and gesture that he would not move away from the station entrance." Santangelo Aff. at ¶¶ 15-16; Richards Dec. at ¶¶ 15-16.

By all accounts, an argument ensued between the officers and Plaintiff. Santangelo Aff. at ¶ 17; Richards Dec. at ¶ 17; Plaintiff's Deposition at 134. Other officers responded to the scene, Santangelo Aff. at ¶ 18; Richards Dec. at ¶ 18, and, according to Plaintiff, surrounded his table, preventing citizens from signing his petitions. Plaintiff's Deposition at 134, 168, 180. Plaintiff believed then -- and continued to believe at the time of the deposition -- that the officers were acting to prevent him "from becom[ing] governor of the State of New York." Id. at 82, 179. However, in documents filed in opposition to the instant motion for summary judgment, Plaintiff opined that the officers "acted out of anger" over Plaintiff's refusal to obey their orders.

Plaintiff's Opposition, dated Dec. 18, 2007, at 1, 5.

Convinced that the officers were violating the law, Plaintiff demanded that the officers step away from the table and refused to communicate with them until they did. Id. at 149, 179. Plaintiff then "over talked them," drawing attention to the disturbance and exhorting the public to "call New York 1" and other television stations to alert them that he was "being treated like this running for public office." Id. at 134, 178-79. At first, Plaintiff -- a big man who "talk[s] loud anyway" -- may not have used the bullhorn. Id. at 178. However, at some juncture, aware that his "voice was going," Plaintiff picked up the bullhorn and started to use it. Id. at 134, 178.

By Plaintiff's own admission, officers warned him not to use the bullhorn as soon as he picked it up. At his deposition, Plaintiff testified:

[W]hen I picked it [the bullhorn] up somebody said put it down, you can't use it. I read his lips. I know what he said. I read his lips. He said put it down, you can't use that unless you have got a permit you can't use it.

Id. at 177. Plaintiff admitted that he used it nonetheless, although he claimed the bullhorn was set at "low volume." Id. at 134, 153.

Drawn by the disturbance, a crowd of pedestrians gathered near the subway entrance, blocking the stairs. Santangelo Aff. at ¶ 19; Richards Dec. at ¶ 19. Santangelo and Richards both believed that the blocked subway entrance posed safety risks, especially since it was rush hour in a high traffic area. Santangelo Aff. at ¶ 20; Richards Dec. at ¶ 20. However, Plaintiff refused to budge, telling the officers that he "wasn't going to stop campaigning." Plaintiff's Deposition at 181. At 6:13 p.m., when it became apparent to the officers that Plaintiff was not going move from the subway entrance or stop using the bullhorn, Officer Richards placed Plaintiff under arrest. Santangelo Aff. at ¶ 21; Richards Dec. at ¶ 21.

Plaintiff was handcuffed and placed in the back of a patrol car. Santangelo Aff. at ¶ 23; Richards Dec. at ¶ 23; Plaintiff's Deposition at 182, 187. There, Plaintiff waited for what he perceived as a "long time" while the police took down the table and loaded it and Plaintiff's other belongings into the trunk of the car. Plaintiff's Deposition at 187, 189. Plaintiff alleges that, during this period, he saw a man steal his black leather bag containing completed petitions. Id. at 187-88. When Plaintiff alerted the officers to the theft and complained that he was seated in an uncomfortable position, he was told to "shut the fuck up." Id. at 188-89.

Eventually, the police drove Plaintiff to the 79th Precinct. Santangelo Aff. at ¶ 23; Richards Dec. at ¶ 23; Plaintiff's Deposition at 190. Although Officer Richards began to prepare a Property Clerk's Invoice for the bullhorn, Officer Richards recalls that he subsequently decided to issue Plaintiff ...

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