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Hershey v. Goldstein

United States District Court, S.D. New York

April 9, 2013

MATTHEW GOLDSTEIN, Chancellor and Chief Executive Officer of the City University of New York; RICARDO R. FERNANDEZ, President of Lehman College; DOMENICK A. LAPERUTA, Lehman College Director of Public Safety; VINCENT ZUCCHETTO, Executive Assistant to the Vice President for Student Affairs at Lehman College; ESDRAS TULIER, Special Counsel to the President of Lehman College; CUNY Public Safety Officer EDWIN FREYTES, Shield No. 470; CUNY Public Safety Officer IRIZARIZ, Shield No. 353; CUNY Public Safety Sergeant GALLAN, Shield No. 209; CUNY Public Safety Lieutenant CRUZ, Shield No. 120; JOHN DOES; AND RICHARD ROES, Defendants

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For Richard Hershey, Plaintiff: Jeffrey Adam Rothman, LEAD ATTORNEY, Jeffrey Rothman -Attorney at Law, New York, NY.

For Matthew Goldstein, Chancellor and Chief Executive Officer of the City University of New York, Ricardo R. Fernandez, President of Lehman College, Domenick A. Laperuta, Lehman College Director of Public Safety, Vincent Zucchetto, Executive Assistant to the Vice President for Student Affair at Lehman College, Esdras Tulier, Special Counsel to the President of Lehman College, Edwin Freytes, CUNY Public Safety Oficer, Shield No. 470, Irizariz, CUNY Public Safety Officer, Shield No. 353, Gallan, CUNY Public Safety Sergeant, Shield No. 209, Cruz, CUNY Public Safety Lieutenant, Shield No. 120, Defendants: William James Taylor, Jr., LEAD ATTORNEY, Office of The Attorney General (NYS), New York, NY.

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Paul A. Engelmayer, United States District Judge.

Plaintiff Richard Hershey (" Hershey" ) brings this lawsuit under 42 U.S.C. § 1983 against various officials and administrators of Lehman College (" Lehman" ), the Chancellor and Chief Executive Officer of the City University of New York (" CUNY" ), and a collection of CUNY Public Safety officers (collectively, " defendants" ), alleging that defendants violated his rights under the United States Constitution, including the First, Fourth, and Fourteenth Amendments, in connection with restrictions imposed on his leafleting on the Lehman campus and in certain areas outside of the campus gates. Also as a result of these restrictions, and his subsequent arrest outside of the campus gates, Hershey brings claims of assault and battery, malicious prosecution, abuse of process, negligence, and violations of the New York State Constitution. Defendants move to dismiss for failure to state a claim, pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, that motion is granted in part and denied in part.

I. Background[1]

This action arises out of Hershey's leafleting activities on and near the

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campus of Lehman, a senior liberal arts college in the CUNY system. Hershey is a vegetarian advocate who devotes much of his time to distributing free, educational booklets advocating the supposed ethical and nutritional benefits of a plant-based diet. Specifically at issue in this action are two distinct but related instances of leafleting on May 16, 2011: Hershey's leafleting (1) on a main walkway on Lehman's campus, and, immediately afterwards, (2) just outside the Lehman gates, which resulted in his being arrested for trespassing. The Court reviews the facts underlying both the on-campus and off-campus leafleting activity in turn. The Court also reviews later events relating to Hershey's post-arrest interactions with school officials regarding the preservation of evidence and Lehman's on-campus leafleting policy, and the criminal proceedings against Hershey stemming from his arrest.

A. On-Campus Leafleting Activity

On the morning of May 16, 2011, Hershey stationed himself on the main public walkway in the middle of Lehman's campus to hand out leaflets on behalf of a non-profit organization called Vegan Outreach. Am. Compl. ¶ ¶ 13, 16. Many students accepted leaflets from Hershey when passing by him on the walkway. Taylor Decl., Ex. B-1. As Hershey continued to distribute his leaflets, Public Safety Officer Edwin Freytes (a named defendant) approached Hershey and informed him that " he needed permission from the [Lehman] administration in order to hand out materials." Am. Compl. ¶ 17. Freytes clarified that he was not responding to any complaint about Hershey; upon Hershey's request, he escorted Hershey to defendant Vincent Zucchetto, Executive Assistant to the Vice President for Student Affairs at Lehman, whom Freytes identified as the appropriate person for Hershey to ask about obtaining permission to leaflet. Id. ¶ ¶ 18-20.

Zucchetto refused to grant such permission. Id. ¶ 21. In fact, during his meeting with Hershey, Zucchetto represented to Hershey that " he was not allowed to leaflet on the Lehman College campus, and that the campus was private property." Id. Unconvinced, Hershey replied that Lehman was public and state-funded, and he requested from Zucchetto a copy of Lehman's on-campus leafleting policy. Id. ¶ 22. Zucchetto then directed Hershey that he would need to make his request in writing, which Hershey offered to do while still in Zucchetto's office. Id. ¶ ¶ 23-24. However, Zucchetto stated that he would not respond to Hershey's request that day, and Freytes ordered Hershey to leave the office before he could briefly write out the request. Id. ¶ ¶ 25-26. Although denying Hershey permission to leaflet on campus, Zucchetto and Freytes represented to Hershey that he " had permission to hand out his booklets on the sidewalk outside any of the college's gates." Id. ¶ 28. After the meeting with Zucchetto, Freytes escorted Hershey off of the campus. Id. ¶ 29; Taylor Decl. Ex. B-2.

B. Off-Campus Leafleting Activity

Hershey's off-campus leafleting activity is best explained in three parts: (1) his first stint of off-campus leafleting, and

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public safety officers' response thereto; (2) his arrest outside of the campus gates and detainment in the public safety office; and (3) his second stint of off-campus leafleting, following his arrest.

1. Initial Off-Campus Leafleting and Public Safety Officer Response

After his meeting with Zucchetto, Hershey sought out the most student-accessible off-campus spot from which to hand out booklets. Id. ¶ 30. He settled on the intersection of Paul Avenue and Bedford Park Boulevard, occupying the sidewalk in front of Lehman's entrance. Id. As made clear in the third and fourth video segments defendants filed with the Court, and which the Amended Complaint incorporates by reference, at this intersection sits a public sidewalk in front of, and running alongside, the main gate to campus. Id. ¶ 34; Taylor Decl. Ex. B-3. A driveway entrance to, and exit from, the campus crosses and is perpendicular to this sidewalk. Am. Compl. ¶ 35; Taylor Decl. Ex. B-3. Judging from the video, this intersection generates significant foot traffic, and, from time to time, vehicles turn onto the driveway to enter campus. Taylor Decl. Ex. B-3.

Once situated, Hershey started to distribute his booklets, " peaceably," on the sidewalk in front of the campus gate. Am. Compl. ¶ 31. Instead of standing in one spot to leaflet, Hershey paced up and down the sidewalk, frequently crossing the driveway, Taylor Decl., Ex. B-3, to " approach[] individuals who were walking in the vicinity of the campus gate," Am. Compl. ¶ 32. Hershey did not force leaflets onto anyone and " never pressed the issue" with uninterested passers-by. Id. ¶ 33.

No more than 11 minutes after he started leafleting in front of the campus gate, Hershey was interrupted by campus authorities again.[2] Id. ¶ 34. Public Safety Officer Irizariz (a defendant) approached Hershey and told him that he " was not allowed to leaflet there," instead directing him to leaflet adjacent to a food cart several yards east of the main gate to campus. Id.; Taylor Decl., Ex. B-3. The food stand was on a bridge on Bedford Park, in a " narrow area" that Hershey did not find suitable for leafleting mainly because he did not want to cause any additional congestion or inconvenience to pedestrians. Am. Compl. ¶ 56. Hershey alleges that Irizariz's statement " had nothing to do" with the driveway's intersecting part of the area of the sidewalk on which Hershey was leafleting. Id. ¶ 35. Nor, Hershey alleges, did Irizariz offer him the option of leafleting on the public sidewalk west of the campus gate and driveway, in the opposite direction of the bridge and food cart. Id. ¶ 36. Hershey alleges that Irizariz's request " was entirely arbitrary," and that " no explanation was given as to why [Hershey] should have to leaflet" on a narrow walkway next to a food truck (which, contrary to Hershey's precepts, served meat). Id. ¶ 37. Hershey also claims that leafleting in this " constricted" area " might potentially cause congestion of pedestrian traffic and inconvenience to pedestrians, which [Hershey] specifically did not want to do." Id. ¶ 56. Accordingly, Hershey told Irizariz that " he was within

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his rights to leaflet" where he had been leafleting, and he continued to distribute his materials in the same spot. Id. ¶ 38.

Following this exchange, Public Safety Lieutenant Cruz (a defendant) approached Hershey and repeated Irizariz's order that Hershey " needed to stand by the food stand." Id. ¶ ¶ 39-40. Hershey alleges that this directive was arbitrary, unrelated to the driveway's intersecting the sidewalk in front of the gate, and that Cruz did not offer him the option to leaflet west of the gate. After Cruz left, Hershey alleges, he moved to the west of the gate. Id. ¶ ¶ 41-44.[3]

2. Hershey's Arrest and Detainment

A few minutes later, a team of public safety officers, including Cruz, Freytes, Irizariz, and Public Safety Sergeant Gallan (all defendants) pulled up to the intersection in front of the gate in sports utility vehicles, got out of their cars, and surrounded Hershey, who was standing to the west of the gate and driveway area. Id. ¶ ¶ 45-46. Cruz advised Hershey that he would be arrested if he did not leave. Id. ¶ 47. Hershey allegedly replied that he was standing on a public New York City sidewalk, not Lehman property, and that " he had a First Amendment right to peaceably hand out his literature on that public sidewalk." Id. ¶ 48. He also requested that he and the public safety officers call the New York City Police Department to clarify this point. Id. ¶ 49. Cruz replied that " that was what they were going to do (i.e., call the New York City Police Department)." Id. ¶ 50.

However, Hershey alleges that their discussion morphed into a forcible and unlawful arrest. He claims that Irizariz " forcibly grabbed" him while Cruz " forcibly grabbed" his booklets, confiscating them from him and handing them to Gallan. Id. ¶ ¶ 50-51. The officers then handcuffed Hershey and escorted him to Lehman's public safety office, where they searched him and his property without his consent and read " private documents" which they took from his pockets," id. ¶ ¶ 53, 59-60, despite Hershey's twice protesting that they were violating his Fourth Amendment rights, id. ¶ ¶ 52, 61. Hershey also alleges that the officers had placed the handcuffs on him " with an excessive and painful tightness" and asked the officers to remove or loosen them because his hands " were tingling." Id. ¶ ¶ 62-63. The officers allegedly ignored this request, as well as two other requests to remove or loosen his handcuffs. Id. ¶ ¶ 64, 70, 76.

Hershey further alleges that at no time during the arrest, or the events leading up to it, did any officer claim that he was blocking the driveway or traffic. Id. ¶ 54. In fact, Hershey claims, he never blocked, or intended to block, any traffic--vehicular or pedestrian--while leafleting, id. ¶ ¶ 55, 58; ironically, he contends, the public safety officers obstructed pedestrian traffic when they parked their vehicles in front of the gate for more than six minutes, id. ¶ 56.

Hershey maintains that the officers held him in handcuffs in the public safety office for approximately one hour, inquiring about his affiliations and deciding on an appropriate charge before issuing him a summons. Id. ¶ ¶ 65-67, 75-76. Irizariz asked whether he " was involved with [People for the Ethical Treatment of Animals (PETA)]" or any other organizations; Hershey stated that his only relevant affiliation

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was with Vegan Outreach, for which he had been leafleting that day. Id. ¶ ¶ 65-68. Hershey again explained to Irizariz that he " had a First Amendment right to leaflet on the City sidewalk," id. ¶ 72, to which Irizariz replied that he was " just complying with his supervisors' directives," id. ¶ 74.

The officers issued Hershey a summons for trespass, pursuant to § 140.05 of the New York State Penal Law, which was signed by Freytes. Id. ¶ ¶ 76-77. After issuing the summons, the officers removed the handcuffs from Hershey, whose " wrists were bright red from the[ir] excessive tightness." Id. ¶ 79. Hershey instructed Cruz to take note of the red marks, and " Cruz stated, without interest, that she saw the marks." Id. ¶ ¶ 80-81. Finally, before leaving the public safety office, Hershey warned the officers not to destroy any video surveillance tapes because they would " be needed for use in court." Id. ¶ 82. Freytes then escorted him off campus for the second time that day. Id. ¶ 83.

3. Post-Arrest Leafleting and Handcuff-Related Pain

Later that afternoon, undeterred by his arrest and receipt of a summons, Hershey returned to the same spot where he had been arrested, and telephoned the New York City Police Department which, per Hershey's request, dispatched NYPD Officer Perez to his location. Perez allegedly confirmed that Hershey had a right to leaflet at the intersection of Paul Avenue and Bedford Park Boulevard--the intersection at which the public safety officers had objected to his presence--and told Hershey that he would " have a word with the campus public safety officers." Id. ¶ 85. Hershey then told Perez that he planned to continue leafleting there, and Perez nodded with approval. Id. ¶ 86.

For the next hour-and-a-half, Hershey handed out his booklets without further incident, as various public safety officers, including Irizariz, watched from their vehicles; however, the pain in his hands from the allegedly tight handcuffs made it difficult for Hershey to distribute his booklets. Id. ¶ ¶ 87-89. Hershey alleges that he " continued to experience paresthesia in his hands from the extended period of time during which he had been held in excessively tight handcuffs," prompting him to " drop his booklets that he was attempting to hand out." Id. ¶ 89. This discomfort, combined with the less efficient, off-campus location and the time he had lost during his interactions with public safety officers and his arrest, eventually led Hershey to discontinue his leafleting efforts that day. Id. ¶ 90. Hershey claims that he continued to suffer from this paresthesia in his hands for the next three weeks and was unable to leaflet again, after attempting to do so the next day, until June 11, 2011. Id. ¶ ¶ 91, 108.

C. Hershey's Follow-Up with School Officials and Allegations of Video Spoliation

In the days following his arrest, Hershey sought to preserve related evidence and inquire more fully and formally about Lehman's on-campus leafleting policy. He now alleges that (1) some related video surveillance evidence was spoliated, and that (2) Lehman has no written policy governing leafleting on campus by outsiders.

1. Video Spoliation

On May 20, 2011, four days after his arrest, Hershey e-mailed the Lehman Director of Public Safety, Domenick A. Laperuta (a defendant), and told him to preserve any video surveillance records from May 16, 2011, between 10 a.m. and 3 p.m. Id. ¶ ¶ 96-97. On July 21, 2011, Laperuta " acknowledged," by e-mail response, that

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" he had complied with the preservation notice." Id. ¶ 98.

Nonetheless, Hershey alleges that " significant portions of video have been spoliated by Defendants." In support of this claim, he notes that the third and fourth video segments defendants filed with the Court " begin to run with [Hershey] already present and leafleting outside of the College gates," id. ¶ 102; and the fourth segment ends while he is still leafleting, id. ΒΆ 103. As such, he argues that meaningful portions of video footage--including of his telephoning the New York Police Department, ...

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