United States District Court, S.D. New York
MEMORANDUM OPINION AND ORDER
GREGORY H. WOODS United States District Judge
Christina Gonzalez, was arrested three times at the Bronx
criminal courthouse while protesting the New York City Police
Department's “Stop and Frisk” policy. She
claims that the court's officers arrested her in order to
chill the exercise of her First Amendment rights, and that
the officers used excessive force against her. Ms. Gonzalez
filed this action under 42 U.S.C. § 1983, alleging false
arrest, the use of excessive force, and First Amendment
retaliation against three court officers involved in her
arrests. Because the Court finds that there are insufficient
facts to support Plaintiff's excessive force claim, and
because the Court finds that the arresting officers had
probable cause-or at least arguable probable cause-to arrest
Ms. Gonzalez on all three occasions, Defendants' motion
for summary judgment is GRANTED.
salient facts regarding Plaintiff's arrests are largely
not in dispute. Ms. Gonzalez repeatedly protested the
NYPD's “Stop and Frisk” policies in
demonstrations at the criminal courthouse in the Bronx. First
Amended Complaint (“FAC”), Dkt. No. 13
¶¶ 1, 8; see also Pl.'s Local Rule
56.1 Responsive Statement (“Pl.'s 56.1), Dkt. No.
59. As a result of her protests, Ms. Gonzalez was arrested by
court officers on three separate occasions, each of which is
The February 1, 2012 Incident
Gonzalez was at the courthouse on February 1, 2012 to observe
a scheduled hearing. Pl.'s 56.1 ¶¶ 6-7. Ms.
Gonzalez was not the only person in attendance; a large crowd
formed outside the courtroom, including attorneys, the media,
and members of the public. Id. ¶ 12.
Officer Mark Hirschman was on duty that day. Id.
¶ 6. While patrolling inside the courthouse, Officer
Hirschman saw Ms. Gonzalez and noticed that she was holding a
cellular phone with video recording capabilities.
Id. ¶ 8. Based on this observation, Officer
Hirschman believed that Ms. Gonzalez was recording the events
taking place inside the courthouse and directed Ms. Gonzalez
to stop. Id. ¶ 9. Shortly thereafter, Officer
Hirschman noticed that Ms. Gonzalez was holding a device with
audio recording capabilities. Id. ¶ 10.
Pursuant to a Unified Court System (“UCS”)
policy, “[d]evices with the ability to record audio,
still images or video shall not be not permitted in the court
facilities and courthouses and must be vouchered until the
conclusion of the owner's court business.”
Id. ¶ 11. The “provision does not apply
to cellular telephones with auxiliary cameras or recording
devices, provided that these devices are not used to take
picutres or record proceedings in the courthouse.”
Id. Accordingly, Officer Hirschman informed Ms.
Gonzalez that her recording device was not permitted within
the courthouse. Id. ¶ 10.
parties disagree regarding precisely what happened next, but
do not dispute that Officer Hirschman told Ms. Gonzalez that
she must leave the premises or be subject to arrest.
Id. ¶ 12; see also Decl. of Paul L.
Mills (“Mills Decl.”), Dkt. No. 58, Ex. 1
(“Gonzalez Dep.”) 127:20-128:2. Ms. Gonzalez
refused to leave the courthouse, and Officer Hirschman
arrested her. Pl.'s 56.1 ¶¶ 13-14. According to
Ms. Gonzalez, her “wrist was grabbed, ” she was
“thrown against the wall, ” and was then
“dragged down the [courthouse] hallway in
handcuffs.” Gonzalez Dep. 125:17-24. But Ms. Gonzalez
did not sustain an injury as a result. Decl. of Michael Berg
in Supp. of Defs.' Mot. for Summ. J. (“Berg
Decl.”), Dkt. No. 52, Ex. N (Pl.'s Resp. to
Defs.' First Set of Irrogs.) ¶ 5. Although Ms.
Gonzalez stated that the handcuffs were tight and that she
had marks on her wrists, she did not seek medical attention
following the incident because she did not want to
“waste a doctor's time on something like
that.” Id. 137:16-23; 178:12-24; 289:3-11
(stating that she had “marks on [her] wrists and on
[her] arms” and that “pretty much any time [she
is] arrested, [she] ha[s] some kind of bruises or
something”); see also Pl.'s 56.1 ¶
result of the February 1, 2012 incident, Ms. Gonzalez was
charged with (1) resisting arrest in violation of New York
Penal Law § 205.30; (2) obstructing governmental
administration in the second degree in violation of New York
Penal Law § 195.05; (3) trespass in violation of New
York Penal Law § 140.05; and (4) disorderly conduct in
violation of New York Penal Law § 240.20(1) and (6).
Pl.'s 56.1 ¶ 20. Plaintiff ultimately accepted an
adjournment in contemplation of dismissal (“ACD”)
of those charges. Pl.'s 56.1 ¶ 21.
The April 10, 2012 Incident
Gonzalez's second arrest at the courthouse took place on
April 10, 2012. Court Officer Peter Dauria and Sergeant
Roberto Vargas were on duty that day. Id.
¶¶ 22-23. Ms. Gonzalez entered the courthouse
wearing a red shirt with the inscription “Warning: Stop
Frisk Kills” and a button with a similar inscription.
Gonzalez Dep. 204:10-21; 205:11-17. As part of the
courthouse's standard security measures, Ms. Gonzalez
placed her bags on the x-ray machine for inspection.
Pl.'s 56.1 ¶ 25. During the x-ray security
procedure, Officer Dauria noticed Ms. Gonzalez's shirt
and button, and instructed her to remove the button and to
turn her shirt inside-out to obscure its message. Gonzalez
Dep. 216:6-15. Sergeant Vargas, who made his way to the
security post, concurred with Officer Dauria's
instructions. Id. 217:6-218:12. Ms. Gonzalez
objected, agreeing to remove the button since it could be
used as a weapon, but refused to change her shirt or wear it
inside out. Id. 218:4-12.
officers then focused on the contents of Ms. Gonzalez's
bag. Id. Pursuant to a UCS policy, court officers
must monitor personal items scanned in the x-ray machine,
“search[ ] the visitors' bags as warranted by
circumstances; and follow[ ] as appropriate.” Pl.'s
56.1 ¶ 24 (internal quotation marks and citations
omitted). During the x-ray scan, Officer Dauria observed
several metal items in Ms. Gonzalez's bags, conducted a
search of the bags for contraband, and found a canister of
pepper spray. Id. ¶¶ 25-26. Defendants
point out that the canister did not have the proper label
required under the New York State Health Code; Ms. Gonzalez
does not dispute that fact, but maintains that she legally
purchased the spray at a pharmacy in Manhattan and that the
canister had a small tag warning carriers from touching their
eyes if their hands came into contact with the contents.
Id. ¶ 26; Gonzalez Dep. 206:12-24,
220:17:221-15. Officer Dauria and Sergeant Vargas then
informed Ms. Gonzalez that they had to confiscate the pepper
spray. Pl.'s 56.1 ¶ 27.
Gonzalez objected to the search and believed that Officer
Dauria and Sergeant Vargas had targeted her because of the
message on her shirt. Gonzalez Dep. 223:2-16. It was Ms.
Gonzalez's position that she had the right to carry the
pepper spray and that she needed it for her own protection.
Id. Ms. Gonzalez's made her objections audible
to the people in the vicinity; she was “speaking loudly
enough that everyone could hear [her].” Id. at
220:6-16. Sergeant Vargas asked Ms. Gonzalez to lower her
voice, but Ms. Gonzalez refused because she “want[ed]
everyone [there] to understand what was happening.”
Id. 223:16-23. At that point, Officer Dauria
arrested Ms. Gonzalez for disorderly conduct in violation of
New York Penal Law § 240(2) and (5) and unlawful
possession of pepper spray in violation of Section 54.3 of
the New York State Health Code. Pl.'s 56.1 ¶ 30;
see also Berg Decl., Ex. L.
The July 12, 2012 Incident
Gonzalez's third arrest at the courthouse took place on
the afternoon of July 12, 2012. Ms. Gonzalez, accompanied by
another person, was standing on the sidewalk outside the
courthouse. Pl.'s 56.1 ¶ 33. Several court officers
were standing nearby. Id. At some point that
afternoon, Officer Hirschman exited the courthouse, and Ms.
Gonzalez's companion pointed at him, yelling, “Is
that the f***ing pig who assaulted you?”. Id.
¶¶ 34-35. Sergeant Vargas, who was also present,
handcuffed Ms. Gonzalez's companion and escorted him into
the courthouse. Id. ¶ 36. While Sergeant Vargas
was placing the handcuffs on her companion, Ms. Gonzalez
reached toward them from behind. Id. ¶ 38.
Specifically, Ms. Gonzalez stated that she tried to get a
book that was in her companion's possession by leaning
toward him while he was being placed in handcuffs. Gonzalez
Dep. 246:5-23. According to Defendants, another officer
present at the scene observed what transpired, believing that
Ms. Gonzalez was attempting to interfere with the arrest,
relayed that information to Officer Hirschman and instructed
him to place Ms. Gonzalez under arrest. Pl.'s 56.1 ¶
Officer Hirschman proceeded to handcuff Ms. Gonzalez and
placed her under arrest for disorderly conduct in violation
of New York Penal Law § 240.20(1) & (5). Pl.'s 56.1
¶ 40; Berg Decl. Exs. L, M. Sergeant Vargas, was present
at the scene and took Ms. Gonzalez's companion into
custody, but did not “physically restrain [or]
seize” Ms. Gonzalez. Gonzalez Dep. 256:3-15. The charge
was ultimately dismissed. Pl.'s 56.1 ¶ 41. According
to Ms. Gonzalez, Sergeant Vargas “handcuffed [her
companion], and [Officer] Hirschman handcuffed [her].”
Gonzalez Dep. 256:16-18.
Gonzalez filed this action on February 3, 2015. Dkt. No. 1.
She filed an amended complaint on June 28, 2015. Dkt. No. 13.
On July 20, 2015, Defendants moved to dismiss the amended
complaint. Dkt. No. 16. And on January 28, 2016 the Court
granted in part and denied in part Defendants' motion to
dismiss. Defendants moved for summary judgment on April 8,
2016. Dkt. No. 47. The motion was fully briefed on May 13,
2016. Dkt. No. 61.
are entitled to summary judgment on a claim if they can
“show[ ] that there is no genuine dispute as to any
material fact and [they are] entitled to judgment as a matter
of law.” Fed.R.Civ.P. 56(a); see also Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986) (“[S]ummary
judgment is proper ‘if the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.'”
(quoting former Fed.R.Civ.P. 56(c))). A genuine dispute
exists where “the evidence is such that a reasonable
jury could return a verdict for the nonmoving party, ”
while a fact is material if it “might affect the
outcome of the suit under governing law.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
“Factual disputes that are irrelevant or unnecessary
will not be counted.” Id.
defeat a motion for summary judgment, Plaintiff “must
come forward with ‘specific facts showing that there is
a genuine issue for trial.'” Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986) (quoting former Fed.R.Civ.P. 56(e)). “[M]ere
speculation or conjecture as to the true nature of the
facts” will not suffice. Hicks v. Baines, 593
F.3d 159, 166 (2d Cir. 2010) (internal quotation marks and
citations omitted). Plaintiff “must do more than simply
show that there is some metaphysical doubt as to the material
facts.” Matsushita, 475 U.S. at 586.
determining whether there exists a genuine dispute as to a
material fact, the Court is “required to resolve all
ambiguities and draw all permissible factual inferences in
favor of the party against whom summary judgment is
sought.” Johnson v. Killian, 680 F.3d 234, 236
(2d Cir. 2012) (internal quotation marks and citation
omitted). The Court's job is not to “weigh the
evidence or resolve issues of fact.” Lucente v.
Int'l Bus. Machines Corp., 310 F.3d 243, 254 (2d
Cir. 2002). Rather, the Court must decide whether a rational
juror could find in favor of Plaintiff. Id.
Claims Arising Out of the February 1, 2012 Incident