United States District Court, S.D. New York
MEMORANDUM AND ORDER
P. KEVIN CASTEL, District Judge.
Plaintiff Douglas Higginbotham brings this action against defendants the City of New York (the "City"), Police Office Curtis Sylvester, Police Sergeant Christophe Tomlinson, and an unnamed police captain, asserting six claims under 42 U.S.C. § 1983. He alleges that, while working as a journalist covering an Occupy Wall Street protest, he was arrested without probable cause and prevented from exercising his First Amendment rights. The defendants now move to dismiss the complaint pursuant to Rule 12(b)(6), Fed.R.Civ.P. For the following reasons, the motion is denied with respect to Higginbotham's false arrest and First Amendment claims, but granted with respect to all the other claims.
The following facts are taken from the complaint, and are accepted as true for the purposes of this motion. On the morning of November 15, 2011, Higginbotham was working as a freelance video-journalist for TV New Zealand, covering an Occupy Wall Street protest in lower Manhattan. (Compl. ¶ 9.) To get a better vantage point, he climbed onto the top of a telephone booth. (Compl. ¶ 10.) While he was filming "an arrest that resulted in a significant injury to the person being arrested, " he was ordered to climb down from the telephone booth by the defendant police captain, but could not immediately comply because there were too many people surrounding the booth. (Compl. ¶¶ 11-12.) Eventually, he began to climb down, and when he did so, the three individual defendants pulled his legs out from under him, causing him to drop his camera and fall onto the ground. (Compl. ¶ 13.) He was placed in plastic handcuffs and transported to a police processing center, where officers had to use a bread knife to cut off the handcuffs. (Compl. ¶ 14-15.) In total, he spent approximately three hours in handcuffs, which caused bruising and pain to his wrists. (Compl. ¶ 15.) After approximately four hours in custody, Sylvester issued Higginbotham a summons to appear in court, and released him. (Compl. ¶ 16.) Higginbotham was charged with one count of disorderly conduct, but the charge was dismissed on February 17, 2012. (Compl. ¶ 17-18.)
In addition to physical injuries, Higginbotham alleges that his video camera was damaged during the arrest. (Compl. ¶ 19.) He also alleges that, because his arrest resulted in international press coverage, various news outlets stopped working with him, resulting in a significant loss of income. (Compl. ¶ 20.)
Higginbotham filed this action on October 27, 2014. (Dkt. No. 1.) The defendants moved to dismiss on February 23, 2015. (Dkt. No. 10.) The Court heard oral argument on the motion on April 24, 2015.
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id . "The plausibility standard... asks for more than a sheer possibility that a defendant has acted unlawfully." Id . In assessing the complaint, the district court must draw all reasonable inferences in favor of the non-movant. In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir. 2007). Legal conclusions and "[t]hreadbare recitals of the elements of a cause of action, " however, are not entitled to any presumption of truth. Iqbal, 556 U.S. at 678.
I. False Arrest Claim
Higginbotham's first claim under section 1983 is for false arrest. "A section 1983 claim for false arrest is substantially the same as a claim for false arrest under New York law." Jenkins v. City of N.Y., 478 F.3d 76, 84 (2d Cir. 2007). To establish such a claim, "a plaintiff must show that (1) the defendant intended to confine him or her, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement, and (4) the confinement was not otherwise privileged.'" Holland v. City of Poughkeepsie, 90 A.D.3d 841, 844 (2d Dep't 2011) (quoting Lee v. City of N.Y., 272 A.D.2d 586, 586 (2d Dep't 2000)).
The defendants argue that the fourth element is not satisfied, because there was probable cause to arrest Higginbotham. "Probable cause is an absolute defense to a false arrest claim.'" Stansbury v. Wertman, 721 F.3d 84, 89 (2d Cir. 2013) (quoting Torraco v. Port Auth. of N.Y. & N.J., 615 F.3d 129, 139 (2d Cir. 2010)). "An officer has probable cause to arrest when he or she has knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed a crime.'" Id . (quoting Jaegly v. Couch, 439 F.3d 149, 152 (2d Cir. 2006)) (ellipsis omitted). Even if probable cause for the actual arrest charge did not exist, the existence of probable cause to arrest for any offense precludes a false arrest claim. Jaegly, 439 F.3d at 154.
First, the defendants contend that there was probable cause to arrest Higginbotham for a violation of N.Y. Penal Law § 240.20(6), the provision under which he was in fact charged. That subdivision of New York's disorderly conduct statute prohibits "congregat[ing] with other persons in a public place and refus[ing] to comply with a lawful order of the police to disperse, " "with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof."
The parties dispute whether, as a journalist covering the protest, Higginbotham can properly be said to have been "congregating" with the protesters within the meaning of the statute. The Court need not resolve this question, however, because there is a different reason why the statute does not cover Higginbotham's conduct: the defendants' order for Higginbotham to climb down from the telephone booth was not an order to "disperse." That word, as used in the statute, means "[t]o separate, go different ways." Oxford English Dictionary (2d ed. online version Mar. 2015). There is no allegation that Higginbotham was ordered to "separate" himself from the rest of the crowd, by leaving the scene of the protest. On the contrary, as alleged, the defendants instructed that he climb down from the phone booth into the crowd. Further, "[a] group can disperse; an individual cannot." Goodwine v. Nat'l R.R. Passenger Corp., No. 12-cv-3882(TLM), 2014 WL 795756, at *7 (E.D.N.Y. Feb. 27, 2014). Because the defendants' order was directed at Higginbotham alone, it could not be an order to disperse. See id. (holding that there was no violation of section 240.20(6) where the officer instructed the plaintiff alone to leave the area, rather than instructing the congregation of which the plaintiff was allegedly a member to disperse). United States v. Nelson, 500 F.Appx. 90 (2d Cir. 2012), on which the defendants rely, is not to the contrary. In that non-precedential decision, the Second Circuit affirmed the undersigned's finding that there was probable cause to arrest the defendant under section 240.20(6), even though the defendant was standing alone at the time of his arrest. Unlike here, however, it was undisputed in Nelson that the defendant "was standing with two other persons at the time the officer ordered the group to disperse." Id. at 92.
The defendants' attempt to rely on section 240.20(6) fails for the additional reason that Higginbotham is alleged to have complied with the defendants' order as soon as he had the opportunity to do so. The complaint states that he "was unable to immediately comply with [the] order because there were many people surrounding the booth" (Compl. ¶ 12), but that he then "began to climb down." (Compl. ¶ 13.) There is nothing in the complaint to suggest that Higginbotham ever "refused" to comply with the order, as required by the statute. See Dinler v. City of N.Y., No. 04 Civ. 7921(RJS)(JCF), 2012 WL 4513352, at *11 (S.D.N.Y. Sept. 30, 2012) (holding that there was no probable cause under section 240.20(6) to arrest protesters who had no opportunity to comply with a dispersal order because their route was blocked). And there is no allegation suggesting that a reasonable police officer in the defendants' situation would have believed that Higginbotham was refusing to comply.
Next, the defendants invoke section 240.20(7), another subdivision of the disorderly conduct statute. That subdivision, which carries the same mens rea requirement as subdivision 6, prohibits "creat[ing] a hazardous or physically offensive condition by any act which serves no legitimate purpose." The defendants argue that Higginbotham could have fallen off the phone booth or dropped his camera, putting the crowd below him at risk of injury, and further contend that, while it was legitimate for Higginbotham ...