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Gonzalez v. Shield

United States District Court, S.D. New York

January 31, 2017



          GREGORY H. WOODS United States District Judge

         Plaintiff, 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.

         I. BACKGROUND

         A. Factual Background[1]

         The 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 described below.

         1. The February 1, 2012 Incident

         Ms. 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.

         Court 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.

         The 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.[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 ¶ 17.

         As a 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.

         2. The April 10, 2012 Incident

         Ms. 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.

         The 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.

         Ms. 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.

         3. The July 12, 2012 Incident

         Ms. 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 ¶ 39.[3] 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.

         B. Procedural History

         Ms. 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.


         Defendants 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.

         To 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.

         In 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.


         A. Claims Arising Out of the February 1, 2012 Incident

         1. ...

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