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Carpenter v. The City of New York

United States District Court, S.D. New York

November 27, 2013


Order Filed: February 13, 2014

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[Copyrighted Material Omitted]

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For Plaintiffs: Ronald L. Kuby and Leah Marielle Busby, Law Office of Ronald L. Kuby, New York, NY.

For Defendants: Andrew Lucas, Assistant Corporation Counsel of the City of New York, New York City Law Department, New York, NY.


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DENNIS COTE, United States District Judge.

Plaintiffs Heather Carpenter (" Carpenter" ) and Julio Jose Jimenez-Artunduaga (" Jimenez" ) filed this action pursuant to 42 U.S.C. § 1983 seeking compensatory and punitive damages against six defendants: the City of New York (" the City" ), Chief of Department Joseph J. Esposito (" Chief Esposito" ), Chief of Patrol James P. Hall (" Chief Hall" ), Sergeant Robert Byrne (" Sergeant Byrne" ), Sergeant Christopher Newsom (" Sergeant Newsom" ), Sergeant

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Rodriguez (" Sergeant Rodriguez" ), and Sergeant Patrick Wright (" Sergeant Wright" ). This case arises out of an October 15, 2011 protest organized by a group known as Occupy Wall Street, during which the plaintiffs were arrested for criminally trespassing in a Manhattan Citibank branch.

The plaintiffs seek to impose civil liability under § 1983 on the four Sergeants for arresting them in violation of the Fourth Amendment, and using excessive force in doing so. The remaining claims seek to hold the City and the two Chiefs responsible under the Monell doctrine and as supervisors, respectively.

On June 24, 2013, defendants moved for summary judgment. Despite being granted repeated extensions, the plaintiffs failed to file a complete set of papers in opposition to the summary judgment motion within the time permitted. Having examined the record with care, summary judgment is granted in part. The false arrest claims are dismissed. As to excessive force, only the claims against the City are dismissed.


The following facts are undisputed or taken in the light most favorable to the plaintiffs unless otherwise indicated. This case arises out of a protest conducted by the Occupy Wall Street (" Occupy" ) movement. The Occupy movement explains that it came into being in September 2011, when it occupied Zuccotti Park, located near Wall Street in New York City's financial district. As relevant here, Occupy objects to the perceived greed of financial services institutions and their allegedly corrupt relationship with the government. Occupy organized a protest for October 15, 2011, which the New York City organizers called, in their Facebook post, a " Day of Action Against Banks." Through this Facebook post, Carpenter and Jimenez became aware of the October 15 protest.

During the evening prior to October 15, Carpenter visited Jimenez at the bar at which he worked and they discussed joining the protest. That night, Carpenter travelled to Zuccotti Park and joined the protestors. Jimenez joined her after he left work early on the morning of October 15. The couple slept for a few hours in Zuccotti Park.

On the afternoon of October 15, the plaintiffs arrived with other protestors at Washington Square Park, the staging ground for the Occupy protest. Carpenter intended to " participate" in the Occupy protest that day by closing her Citibank bank account. Carpenter had previously been notified by Citibank of a $17 monthly fee to maintain her account; Citibank had no such fee in the past. The plaintiffs joined a group of approximately 30 to 35 Occupy protesters marching to a Citibank branch at 555 LaGuardia Avenue in Greenwich Village. Defendant Sergeant Rodriguez was also in this group, dressed in plain clothes.

Sergeants Rodriguez, Newsom, and Byrne had attended a briefing the morning of October 15, in which the officers were advised of the Occupy protest planned for that day and told that the objective of the protesters was to " take over the banks." Sergeant Rodriguez learned at the briefing that some of the Occupy protesters were going to close their bank accounts as part of the protest. All three Sergeants were sent to Washington Square Park. As the protesters departed from Washington Square Park, a superior officer directed Sergeant Rodriguez to join the group and " blend in." Superior officers directed Sergeants Newsom and Byrne to monitor the group.

On the walk to the Citibank branch, all or nearly all members of the group chanted

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Occupy slogans, such as " Banks got bailed out, we got sold out." Both plaintiffs participated in the chanting. Jimenez carried a video camera; he filmed the group walking to the branch, interviewing members of the group as they walked. Sergeant Rodriguez noticed both plaintiffs, Carpenter because of her red hair and Jimenez because he was videotaping.

At or around 2 p.m., the group entered the Citibank branch. They gathered in the main reception area and formed a circle. At that point, three members of the group began a " teach-in." Other members of the group aired their grievances about the banking system and shared personal stories on topics such as student debt. The teach-in was audible to all those present in the bank branch. Carpenter did not speak during the teach-in, but she did clap along with the group. Jimenez walked through the area, filming the teach-in. Sergeant Rodriguez observed both plaintiffs among the protesters.

At or around 2:04 p.m.,[1] a Citibank employee addressed the protesters. She stated, " I'm asking you guys can you protest outside the branch. No cameras are allowed inside the branch." A member of the group responded, " You guys have cameras inside the branch." The Citibank employee then stated, " Respectfully, we're asking you to protest outside but not inside the branch." Both plaintiffs admit that they heard the statements by this first employee. Less than one minute later, a second Citibank employee addressed the group one more time. He said, " Guys, I kindly ask you if you could do this outside, but not inside the branch." Jimenez admits he heard this statement as well. Despite these statements by bank employees, only a few of the protestors left the bank. Carpenter and Jimenez were among those who remained in the bank.

While the remaining protesters continued with the teach-in, Carpenter closed her bank account. Jimenez handed Carpenter her bank card, and she approached a teller. When Jimenez attempted to film Carpenter's bank transaction, she told him not to. Jimenez then returned to filming the teach-in, which continued to take place within the bank.

Sergeant Rodriguez observed both plaintiffs remain in the bank after the bank employees had addressed the protestors, and he witnessed Jimenez handing the bank card to Carpenter. From what he observed, Sergeant Rodriguez assumed that Carpenter was closing her bank account, since he had been advised in the briefing earlier that day that some of the Occupy protesters would be closing their accounts.

Jimenez and Carpenter exited the bank branch about four to five minutes after the bank employees asked the protesters to move their protest outside. At about 2:08 p.m., Jimenez left the bank branch even though Carpenter had not yet completed her bank transaction. As Jimenez left, he shouted, " they're closing the doors." Almost immediately thereafter the police shut the doors to the bank.

At about 2:09 p.m., Carpenter completed her transaction and moved to exit the bank branch. Although there were police officers blocking people from leaving, Carpenter showed her receipt and was permitted to leave. Carpenter and Jimenez found each other, walked over to the bank branch windows, and spent the next few minutes watching -- and later recording -- what was happening inside the branch.

What they witnessed was the police arresting the Occupy protesters in the bank branch. A senior police officer told the

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fprotesters inside the branch that they were all under arrest for criminal trespass. As the protesters inside the bank were being placed under arrest, Sergeant Rodriguez looked out of the bank windows and recognized Carpenter and Jimenez. He informed Chief Esposito that there were two additional protesters who had been involved in the demonstration outside the bank. Chief Esposito authorized their arrest, and Sergeant Rodriguez left the bank branch, accompanied by Sergeant Newsom, to arrest the plaintiffs.

Around 2:15 p.m., Sergeant Rodriguez approached Carpenter. Many of the facts regarding what transpired at this point are disputed. It is undisputed, however, that Sergeant Rodriguez approached Carpenter as she held her iPhone and recorded what was happening inside the branch. He stated that she was " inside with the rest of them" and that she would have to " come with him." Carpenter repeatedly stated that she was a " customer," pointing to the receipt from her transaction. Jimenez identified himself as Carpenter's boyfriend or fiancé, said something along the lines of " let's go," and then placed his arm behind Carpenter's back, as if to guide her away from Sergeant Rodriguez. Sergeant Rodriguez then grabbed Carpenter from behind and moved her to the front of the bank. Chief Hall, who had just arrived on the scene, assisted Sergeant Rodriguez by grabbing Carpenter's arm and helping Rodriguez direct her to the wall of the bank branch, where Rodriguez then handcuffed her.

At virtually the same time, Jimenez was arrested. Sergeant Newsom and Sergeant Wright, who had just arrived, brought Jimenez into the bank vestibule. As Jimenez was being brought inside the vestibule, he grabbed and held onto the doorframe for a few seconds. Inside the vestibule, additional officers helped arrest Jimenez.

On June 21, 2011, plaintiffs filed this action, asserting that they had been falsely arrested and subjected to excessive force during those arrests. Following the completion of discovery, the defendants moved for summary judgment on June 24, 2013. The plaintiffs only filed exhibits and seven pages of a Rule 56.1 Statement by the extended deadline for the plaintiffs' ...

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