KARINA GARCIA, as Class Representative on behalf of herself and others similarly situated, YARI OSORIO, as Class Representative on behalf of herself and others similarly situated, BENJAMIN BECKER, as Class Representative on behalf of himself and others similarly situated, CASSANDRA REGAN, as Class Representative on behalf of herself and others similarly situated, YAREIDIS PEREZ, as Class Representative on behalf of herself and others similarly situated, TYLER SOVA, as Class Representative on behalf of himself and others similarly situated, STEPHANIE JEAN UMOH, as Class Representative on behalf of herself and others similarly situated, MICHAEL CRICKMORE, as Class Representative on behalf of himself and others similarly situated, BROOKE FEINSTEIN, as Class Representative on behalf of herself and others similarly situated, Plaintiffs-Appellees, MARCEL CARTIER, as Class Representative on behalf of himself and others similarly situated, Plaintiff,
JANE AND JOHN DOES 1-40, individually and in their official capacities, Defendants-Appellants, RAYMOND W. KELLY, individually and in his official capacity, CITY OF NEW YORK, MICHAEL R. BLOOMBERG, individually and in his official capacity, Defendants. [*]
Argued April 22, 2013
Rehearing Filed December 18, 2014
Amended: February 23, 2015
[Copyrighted Material Omitted]
Defendants-appellants, New York Police Department officers, appeal from an order of the United States District Court for the Southern District of New York (Jed S. Rakoff, Judge) denying their motion pursuant to Rule 12(b)(6) to dismiss plaintiffs-appellees' complaint against them on qualified immunity grounds. Defendants argue that the district court erred in concluding that plaintiffs' complaint, and other materials that could properly be considered on a motion to dismiss for failure to state a claim, did not establish that defendants had arguable probable cause to arrest plaintiffs for disorderly conduct. On August 21, 2014, we issued an opinion affirming the district court's judgment. On December 17, 2014, this opinion was withdrawn. On appellants' petition for rehearing, we now grant the petition, reverse the judgment of the district court, and remand with instructions to dismiss the complaint.
MARA VERHEYDEN-HILLIARD (Andrea Hope Costello and Carl Messineo, on the brief), Partnership for Civil Justice Fund, Washington, D.C., for Plaintiffs-Appellees.
RONALD E. STERNBERG, Assistant Corporation Counsel (Leonard Koerner and Arthur G. Larkin, Assistant Corporation Counsel, on the brief), for Michael A. Cardozo, Corporation Counsel of the City of New York, New York, New York, for Defendants-Appellants.
Before: CALABRESI, LIVINGSTON, and LYNCH, Circuit Judges.
Gerard E. Lynch, Circuit Judge
Plaintiffs-appellees, participants in a demonstration who were arrested after a confrontation with police at the Manhattan entrance to the Brooklyn Bridge, brought this action for false arrest in violation of their First, Fourth, and Fourteenth Amendment rights. Defendant-appellant police officers appeal from a ruling of the United States District Court for the Southern District of New York (Jed S. Rakoff, Judge ) denying their motion to dismiss the complaint pursuant to Rule 12(b)(6) on grounds of qualified immunity. By a divided vote, we initially affirmed the district court's judgment. On December 17, 2014, the Court entered an order granting appellants' petition for rehearing en banc and withdrawing our prior opinion. On appellants' petition for rehearing, we now conclude that appellants are entitled to qualified immunity. Accordingly, we GRANT the petition for rehearing, REVERSE the judgment below, and REMAND the case with instructions to dismiss the complaint.
Plaintiffs brought this action for false arrest under 42 U.S.C. § 1983 following their arrests during a demonstration in support of the Occupy Wall Street movement. Plaintiffs attached five video excerpts and nine still photographs as exhibits to the Second Amended Complaint (the " Complaint" ), which we consider when deciding this appeal. See DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). We also consider videos submitted by defendants, which plaintiffs concede are similarly incorporated into the Complaint by reference. For purposes of
this appeal, we take as true the facts set forth in the Complaint, see Almonte v. City of Long Beach, 478 F.3d 100, 104 (2d Cir. 2007), to the extent that they are not contradicted by the video evidence.
I. The Protest and Plaintiffs' Arrests
On October 1, 2011, thousands of demonstrators marched through Lower Manhattan to show support for the Occupy Wall Street movement. The march began at Zuccotti Park in Manhattan and was to end in a rally at Brooklyn Bridge Park in Brooklyn. Although no permit for the march had been sought, the New York City Police Department (" NYPD" ) was aware of the planned event in advance, and NYPD officers escorted marchers from Zuccotti Park to the Manhattan entrance to the Brooklyn Bridge (the " Bridge" ), at times flanking the marchers with officers on motorscooters or motorcycles. Those officers issued orders and directives to individual marchers, at times directing them " to proceed in ways ordinarily prohibited under traffic regulations absent police directive or permission." J. App'x at 165. The officers blocked vehicular traffic at some intersections and on occasion directed marchers to cross streets against traffic signals. As far as appears from the video excerpts, neither the demonstration nor the actions of the officers in controlling or facilitating it caused any significant disruption of ordinary traffic patterns during this stage of the march.
When the march arrived at the Manhattan entrance to the Bridge, the first marchers began funneling onto the Bridge's pedestrian walkway. Police, including command officials, and other city officials stood in the roadway entrance to the Bridge immediately south of the pedestrian walkway and, at least at first, watched as the protesters poured across Centre Street towards the Bridge. A bottleneck soon developed, creating a large crowd at the entrance to the Bridge's pedestrian walkway. While video footage suggests that the crowd waiting to enter the pedestrian walkway blocked traffic on Centre Street, defendants do not contend that they had probable cause to arrest plaintiffs for their obstruction of traffic at that point, as opposed to their later obstruction of traffic on the Bridge roadway. Indeed, plaintiffs alleged in their Complaint that the police themselves stopped vehicular traffic on Centre Street near the entrance to the Bridge before the majority of the marchers arrived at the entrance.
While a steady stream of protesters continued onto the walkway, a group of protesters stopped and stood facing the police on the ramp constituting the vehicular entrance to the Bridge at a distance of approximately twenty feet. By this time, a large crowd of demonstrators had pooled behind that lead group. Given the size and density of the crowd, it would clearly have been impossible for vehicles to enter the bridge using the ramp at that location. Some of the protesters began chanting " Take the bridge!" and " Whose streets? Our streets!" At this point, all the video evidence confirms that the march had divided; one group was proceeding across ...