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Charles v. The City of New York

United States District Court, E.D. New York

February 8, 2017

THE CITY OF NEW YORK, RAYMOND KELLY, Commissioner of the New York City Police Department, PAMELA BENITES, a New York City Police Officer, RAYMOND WILLIAMS, a New York City Police Officer, and ANTHONY FAMIGHETTI, a New York City Police Sergeant, Defendants.


          SANDRA L. TOWNES United States District Judge.

         Plaintiff Hadiyah Charles brings this civil rights action against the City of New York, former New York City Police Department ("NYPD") Commissioner Raymond Kelly and three police officers, alleging that her First and Fourth Amendment rights were violated when she was arrested and briefly imprisoned following an incident in which she intervened in, and videotaped, an encounter between the officers and three African-American teenagers. Defendants now move for summary judgment, arguing that there was probable cause for Plaintiffs arrest, that there is insufficient evidence that the arrest was motivated by Plaintiffs exercise of First Amendment rights, and that the officers are entitled to qualified immunity on both the First and Fourth Amendment claims. In addition, Defendants argue that spoliation sanctions are appropriate because Plaintiff is no longer able to produce the videotape of the incident.

         For the reasons stated below, Defendants' motion for summary judgment is denied. Defendants' motion for spoliation sanctions is denied without prejudice to renewal if the evidence adduced at trial establishes that the videotape of the incident was likely to favor Defendants.


         The following facts are not in dispute. On the early evening of June 5, 2012, while walking on the Brooklyn block on which she resided, Plaintiff observed an encounter between Officers Benites and Williams and teenagers on the sidewalk in front of 281 Clifton Place (Defendants' Statement of Material Facts Pursuant to Local Rule 56.1 ("Defendants' 56.1 Statement"), ¶ 2; Plaintiffs Response to Defendants' 56.1 Statement ("Plaintiffs 56.1 Statement"), ¶ 2). Plaintiff did not know any of the teens personally, although she claimed to recognize them "from being on the block [and] having lived there for six years." (Defendants' 56.1 Statement, ¶ 5; Plaintiffs 56.1 Statement, ¶ 5). However, after overhearing one of teens protesting that they had done nothing wrong, Plaintiff wondered why the police had stopped them. (Defendants' 56.1 Statement, ¶ 6; Plaintiffs 56.1 Statement, ¶ 6). Plaintiff believed that she, as a "taxpaying citizen that [sic] lives on the block, " had a right to "ask a question about a process on the block." (Defendants' 56.1 Statement, ¶ 7; Plaintiffs 56.1 Statement, ¶ 7).

         Standing about five feet from the officers, Plaintiff asked why they had stopped the teens. (Defendants' 56.1 Statement, ¶ 10; Plaintiffs 56.1 Statement, ¶ 10). According to Plaintiff, the officers ignored her question, prompting her to ask it a second time. (Defendants' 56.1 Statement, ¶¶ 11-12; Plaintiffs 56.1 Statement, ¶¶ 11-12). Officer Williams eventually responded, saying that it was "police business, " and accusing Plaintiff of "interfering" in it. (Defendants' 56.1 Statement, ¶¶ 13, 15; Plaintiffs 56.1 Statement, ¶¶ 13, 15).

         At some juncture, Plaintiff started to videotape the officers, using the recording features on her iPhone. (Defendants'56.1 Statement, ¶ 20; Plaintiff s 56.1 Statement, ¶ 20). According to Plaintiff, she stepped backwards on two occasions at the request of Officer Benites, (Defendants' 56.1 Statement, ¶ 22; Plaintiffs 56.1 Statement, ¶ 22), but refused to comply with Benites' third request. (Defendants' 56.1 Statement, ¶¶ 22-23; Plaintiffs 56.1 Statement, ¶¶ 22-23). Thereafter, Benites made some sort of physical contact with Plaintiff, which Plaintiff characterized as a "shove." (Defendants' 56.1 Statement, ¶ 28; Plaintiffs 56.1 Statement, ¶ 28). After both Plaintiff and "people on the street" commented on the shove, Benites radioed her supervisor, Sergeant Anthony Famighetti. (Defendants' 56.1 Statement, ¶¶ 29-31; Plaintiffs 56.1 Statement, ¶¶ 29-31).

         Shortly thereafter, Famighetti arrived, along with Police Officer Adam Dumelle. (Defendants' 56.1 Statement, ¶ 31; Plaintiffs 56.1 Statement, ¶ 31). Plaintiff was arrested and taken to the precinct. (Defendants' 56.1 Statement, ¶¶ 32-33; Plaintiffs 56.1 Statement, ¶¶ 32-33). She was detained in a holding cell for a period of 80 minutes or less before being released with a summons charging her with disorderly conduct in violation of New York Penal Law § 240.20(2). (Defendants' 56.1 Statement, ¶ 33; Plaintiffs 56.1 Statement, ¶ 33).

         On June 6, 2012, Plaintiff viewed the video on her iPhone and confirmed that the video remained intact. (Defendants' 56.1 Statement, ¶ 37; Plaintiffs 56.1 Statement, ¶ 37). According to Plaintiff, the video depicted events until the time she was handcuffed. (Id.). However, Plaintiff claims that she lost her iPhone either during or immediately after a gala on the night of June 7, 2012, and that the video it contained, which had not been downloaded, was lost in the process. (Defendants' 56.1 Statement, ¶ 38; Plaintiffs 56.1 Statement, ¶ 38).

         This Action

         On December 17, 2012, Plaintiff, represented by the New York Civil Liberties Union, commenced this civil action against the City of New York, then-Commissioner Kelly, Benites, Williams and Famighetti, who was sued as a "John Doe" because his identity was then unknown to Plaintiff. The original complaint alleged that the NYPD has a "practice of interfering with the right of individuals to film police activity in public places, " and suggested that Benites, Williams and Famighetti acted in retaliation for Plaintiffs "filming a stop and frisk that took place across the street from her residence." (Complaint, ¶ 1). The pleading principally advanced claims pursuant to 42 U.S.C. § 1983, alleging that "[a]s a direct result of the acts, omissions, and policies of the Defendants, " Plaintiff was deprived of her rights under the First and Fourth Amendments of the United States Constitution. (Id., ¶¶ 53-54). The complaint also advanced state-law claims, alleging that Defendants' acts, omissions, and policies violated Plaintiffs rights under Article I, sections 8 and 12, of the New York State Constitution and her common-law right "to be free from false arrest, false imprisonment, assault, and battery." (Id., ¶¶ 55-57). The complaint sought declaratory relief, as well as compensatory and punitive damages.

         In mid-April 2013, Plaintiff amended the complaint upon consent of Defendants. The Amended Complaint substituted Famighetti for the Doe defendant, and dropped the requests for declaratory relief. The Amended Complaint was identical to the original pleading in all other respects.

         The Instant Motion

         Defendants now move for summary judgment, advancing three arguments. First, Defendants argue that the individual officers had probable cause to arrest Plaintiff for both obstruction of governmental administration, N.Y. Penal Law § 195.05, and disorderly conduct, N.Y.Penal Law § 240.20. Defendants note that probable cause is a complete defense to an action for false arrest and malicious prosecution and imply that the Court should grant summary judgment with respect to Plaintiffs Fourth Amendment and Article I, section 8, claims, as well as Plaintiffs common-law claims for false arrest and false imprisonment.

         Second, Defendants seek summary judgment with respect to Plaintiffs First Amendment retaliation claim. Defendants argue that the retaliation claim requires proof that the arrest was motivated by the videotaping and is unavailable when the arrest and subsequent prosecution was supported by probable cause. Implicitly relying on the analysis in Point I, Defendants argue that the officers had probable cause to arrest. Defendants also argue that Plaintiff has adduced no evidence of an improper motive for the arrest.

         Third, Defendants argue that the officers are entitled to qualified immunity. With respect to the Fourth Amendment claim, Defendants argue that the officers had at least "arguable" probable cause to arrest Plaintiff. With respect to the First Amendment claim, Defendants argue that the right to videotape police stops was not "clearly established" as of June 5, 2012.

         In addition, Defendants argue that the Court should impose spoliation sanctions for Plaintiffs loss of the cell phone on which the video of the incident was recorded. Defendants contend that the video contained evidence that Plaintiff acted unlawfully during the June 5, 2012, incident and that Plaintiff purposely destroyed the inculpatory evidence in furtherance of her efforts to "make [the] summons disappear." (Defendants' Memorandum of Law in Support of Motion for Summary Judgment and Spoliation Sanctions ("Defendants' Memo"), p. 24). Defendants claim that dismissal of this action "is the only fair sanction in this instance, " but argue, in the alternative, for an adverse inference charge. (Id., pp. 24-25). Defendants also argue that if factual issues preclude determination of the motion for sanctions, the Court should conduct a hearing to resolve those issues.

         Plaintiff opposes all of Defendants' arguments in her Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment and Spoliation Sanctions ("Plaintiffs Memo"). Plaintiff principally argues that genuine issues of material fact preclude the Court from awarding summary judgment. In particular, Plaintiff either expressly argues or implies that factual disputes exist regarding whether the stop and frisk of the teenagers was authorized by law, whether Plaintiff physically interfered with the stop-and-frisk, whether Plaintiff made "unreasonable noise, " whether Benites' third order to step back was lawful, and whether Plaintiffs loss of the cell phone was purposeful or inadvertent.

         In support of the arguments contained in their memoranda of law, both Defendants and Plaintiff principally rely on excerpts from depositions taken during discovery. These excerpts are attached to declarations signed by the parties' attorneys: the Declaration of Mark D. Zuckerman (the "Zuckerman Declaration"); the Declaration of Alexis Karteron in Opposition to Defendants' Motion for Summary Judgment and Spoliation Sanctions (the "Karteron Declaration"); and the Supplemental Declaration of Mark D. Zuckerman (the "Second Zuckerman Declaration"). The excerpts attached to the Zuckerman and Karteron Declarations are largely drawn from the same depositions, although the particular pages excerpted from those depositions vary. For example, portions of Officer Williams' deposition (the "Williams Deposition") are attached to the Zuckerman Deposition as Exhibit A and to the Karteron Declaration as Exhibit 5; portions of Officer Benites' deposition (the "Benites Deposition") are attached to the Zuckerman Deposition as Exhibit B and to the Karteron Declaration as Exhibit 4; and portions of Plaintiff s deposition (the "Charles Deposition") are attached to the Zuckerman Deposition as Exhibit D, to the Second Zuckerman Declaration as Exhibit P, and to the Karteron Declaration as Exhibit 10. In addition, the parties' declarations attach excerpts from the depositions of various non-party witnesses to the incident: one of the teenagers, D.C. (Zuckerman Declaration, Ex. E, and Karteron Declaration, Ex. 9); D.C.'s mother, Louise Cannon (Zuckerman Declaration, Ex. F, and Karteron Declaration, Ex. 12); Cannon's upstairs neighbor, Louisa Brown (Zuckerman Declaration, Ex. G, and Karteron Declaration, Ex. 11); another neighbor, Ivory Cannady (Zuckerman Declaration, Ex. H, and Karteron Declaration, Ex. 8), and Officer Dumelle (Zuckerman Declaration, Ex. J, and Karteron Declaration, Ex. 1).

         The Varying Accounts of the Incident

         These depositions provide detailed, if often contradictory, accounts of how the officers came to stop the teenagers, how Plaintiff intervened, and what happened thereafter. In June 2012, Sergeant Famighetti and Officers Williams, Benites, and Dumelle were all assigned to the 79th Precinct's Conditions Unit, which "enforce[s] quality of life matters." (Karteron Declaration, Ex. 1, p. 11; Ex. 3, pp. 29, 33; Ex. 4, p. 15; & Ex. 5, pp. 13-14). Williams and Benites were partners and were patrolling in a marked police van on the evening of June 5, 2012. (Karteron Declaration, Ex. 4, pp. 32, 47, & Ex. 5, p. 31). Meanwhile, Sergeant Famighetti, the supervisor of the unit, was patrolling in an unmarked car with Dumelle. (Karteron Declaration, Ex. l, p.47, &Ex. 3, p. 62).

         The sergeant conducted roll call around 5:30 p.m. on June 5, 2012, at the start of the officers' shift. (Karteron Declaration, Ex. 1, p. 45; Ex. 4, p. 32; & Ex. 5, p. 21). Famighetti, Williams and Benites all recalled that Famighetti discussed a "robbery pattern" involving men on bicycles. (Karteron Declaration, Ex. 3, pp. 48-49; Ex. 4, pp. 29-31; & Ex. 5, pp. 20-21). However, these three witnesses' recollections of the description of the suspects and the location of the "robbery pattern" differed. Williams initially recalled that the pattern involved "gunpoint robberies" by "young teens on bicycles" "in the vicinity of Clifton Place from Nostrand to Classon"-a three block area which includes the block on which 281 Clifton Place is located. (Karteron Declaration, Ex. 5, pp. 20-21). He subsequently testified that the "entire area" in which robberies fitting the pattern occurred may have included Lafayette and Greene Avenues, which are one block north and one block south of Clifton Place, respectively. (Id., p. 21).

         Benites recalled that the robbery pattern involved "three to five males between the ages of 15 and 20, ... on bicycles, ... stealing cell phones." (Zuckerman Declaration, Ex. B, p. 34; see Karteron Declaration, Ex. 4, pp. 29-30). She recalled that pattern was in the "vicinity of Bedford Avenue and Nostrand Avenue"-the streets at the east and west ends of the block encompassing 281 Clifton Place-and "between Clifton" Place and some other street (Karteron Declaration, Ex. 4. P. 36). Benites could not recall if that unnamed street "was the block before or after [Clifton Place] or if it was both blocks." (Id.).

         Famighetti testified that the pattern involved "three male blacks committing robberies on bicycles, " but that the males were aged 18 to 30. (Karteron Declaration, Ex. 3, p. 49). While he, too, recalled that the pattern involved the theft of cell phones, Famighetti recalled that robberies were reportedly "strong-arm robberies" in which no weapons were involved. (Id.). The sergeant could not recall whether all three men were alleged to be on bicycles. (Id.). However, he recalled that the robbery complaints encompassed the five blocks from DeKalb Avenue in the north to Lexington Avenue in the south and the two blocks from Bedford Avenue in the east to Marcy Avenue in the west-an area of 10 square blocks which encompasses 281 Clifton Place. (Id.).

         The three witnesses' testimony was contradicted both by Dumelle's testimony and by physical evidence. First, although Dumelle recalled that Famighetti conducted roll call on June 5, 2012, he did not recall the sergeant saying anything about a robbery pattern. (Karteron Declaration, Ex. 1, p. 45). However, Dumelle also could not recall what Famighetti actually said at roll call or the first thing that occurred thereafter. (Id., pp. 45-47).

         Second, the description of the robbery pattern which was contained in the 79th Precinct's Command Conditions Report for the week from June 4 to June 12, 2012, differed from the description Famighetti allegedly gave to his officers. That Report, which is attached to the Zuckerman Declaration as Exhibit C, stated that the pattern involved one black man approaching victims on the street, snatching "property (electronics), " and fleeing on a bike. According to a declaration signed by Famighetti on July 17, 2014 (the "Famighetti Declaration"), which has been submitted to the Court by both Defendants and Plaintiff (Karteron Declaration, Ex. 6), the Command Conditions Report served as the basis of his discussion of the robbery pattern at the June 5, 2012, roll call. (Famighetti Declaration, ¶ 2). Yet, the Report did not mention the age of the perpetrator or offer any descriptive details aside from his sex and race, did not mention any accomplices, and did not indicate precisely where the robberies had occurred.

         The Stop and Frisk

         At about 8:15 p.m., while driving their van on Clifton Place between Nostrand and Bedford Avenues, Williams and Benites saw a group of black teenagers on the sidewalk. (Zuckerman Declaration, Ex. A, p. 35, & Ex. B, p. 47; Karteron Declaration, Ex. 4, pp. 47, 51, & Ex. 5, pp. 32, 35-36). One of the teens was D.C., who was 18 years old and still in high school when he was deposed in October 2013-approximately 16 months after the incident at issue (Karteron Declaration, Ex. 9, p. 3). According to D.C., he was working to repair a flat tire on his bicycle at the time, and had the bicycle upside down on the sidewalk in front of 281 Clifton Place, the apartment building in which he lived with his mother. (Karteron Declaration, Ex. 9, pp. 3, 6, 10). D.C. testified that he was with three friends: J.M. and his brother, both of whom lived at 285 Clifton Place, and a male known to him only as "Els, " who lived on the same block. (Id., pp. 8-10). D.C. further testified that he was the only one of the four with a bicycle. (Id., p. 10).

         This portion of D.C s testimony was corroborated, to some extent, by that of his mother, Louise Cannon, and J.M.'s downstairs neighbor, Ivory Cannady. Cannon recalled that D.C. was with three friends whose names she did not know, and that her son was the only one with a bicycle. (Karteron Declaration, Ex. 12, pp. 12, 25-26). Cannady initially recalled seeing D.C. and "two or three ... younger kids, " (Karteron Declaration, Ex. 8, p. 15), but later testified that there were only three boys, whom she identified as D.C, J.M., and Elmer. (Id., p. 18). Cannady, like Cannon, testified that D.C. was the only one with a bicycle, which was upside down on the ground. (Id., p. 15).

         Williams and Benites recalled seeing three individuals and more than one bicycle. Williams initially testified that he saw "two teens on bicycles, " along with a third teen who did not have one. (Karteron Declaration, Ex. 5, p. 32). He subsequently clarified that the teens were not riding at the time, but either sitting on or standing next to bicycles that were stationary on the sidewalk. (Id.). Later, however, Williams testified that he saw "three young teens on bikes." (Id., p. 35). This testimony was consistent with Benites' recollection that she "observed ... three males on bicycles." (Zuckerman Declaration, Ex. B, p. 47). Benites subsequently stated that she was unsure how many bicycles she saw. (Karteron Declaration, Ex. 4, p. 51).

         Although both Williams and Benites testified to seeing a "bulge" in the clothing of one of the young men, their description of the bulge differed somewhat. Williams described it as "something large" or a "large object, " and specifically recalled that it was in the right front pocket of the young man without a bicycle. (Zuckerman Declaration, Ex. A, pp. 36, 39; Karteron Declaration, Ex. 5, pp. 36, 39). Benites recalled that the object was less than six inches wide, but testified that it appeared to have "the shape of a firearm." (Karteron Declaration, Ex. 4, p. 58). She remembered that the bulge was "around the waistband." (Karteron Declaration, Ex. 4, p. 47).

         Although the witnesses agree that the teens saw the officers before they exited the van, they disagree on whether the young men behaved suspiciously. D.C. testified that he saw "the van driving around, " but that the police "didn't stop at first." (Karteron declaration, Ex. 9, pp. 6-7). D.C. claimed that he "knew they were going to come back around, the way they slowed down, " but that he and his friends stayed outside while the van "circled around the block, " "came back around" and stopped. (Id., p. 7).

         Williams testified that he and Benites observed the teens from a stationary van for a period of less than five minutes. (Karteron Declaration, Ex. 5, pp. 35-36, 38, 40). Although the teens were looking at the van, Williams saw nothing suspicious other than the bulge. (Id., pp. 39-40). However, Benites recalled that the young man with the bulge "moved his body" in a way that she perceived as preventing the officers from observing the bulge. (Zuckerman Declaration, Ex. B, p. 47; Karteron Declaration, Ex. 4, pp. 47, 65-66).

         According to Williams, he and Benites briefly discussed whether to exit the van. (Karteron Declaration, Ex. 5, p. 40). Although he could not recall what was said, (id.), both officers testified that they believed the young men fit the robbery pattern. Williams claimed that "three young teens on bikes ... roughly matched the robbery pattern, " (id., p. 35), while Benites claimed: "They matched the pattern that we were told, young males between 15 and 20 on bicycles." (Zuckerman Declaration, Ex. B, pp. 47-48; Karteron Declaration, Ex. 4, p. 47).

         The officers agree that the police encounter began with a frisk. Benites testified that she immediately frisked the waistband of the man with the bulge, "patting ... the portion of the body where [she] observed the bulge." (Zuckerman Declaration, Ex. B, p. 73). She claimed that she did so because she feared for her safety, thinking the bulge could be a firearm. (Id., pp. 74-75). At her deposition, Benites could not recall what caused the bulge, but testified that the pat down revealed that it was not a weapon. (Karteron Declaration, Ex. 4, p. 79).

         Although Benites testified that she could not recall what Williams was doing at the time she was conducting the frisk, (id.), Williams testified that either he or Benites also frisked the other teens. (Karteron Declaration, Ex. 5, pp. 167-68). Williams could not recall the details of those frisks, but stated that he or Benites "would have touched their pockets or waistband" to make sure that they did not have "something dangerous." (Id., pp. 168-69). Williams also testified that he had no reason to believe that those teens posed a threat and did not suspect any of the teens of committing a crime. (Id., pp. 169-70). D.C. corroborated Williams' testimony, stating that the female officer "checked" him and his friends by patting their pants pockets. (Karteron Declaration, Ex. 9, pp. 7, 19-20). Cannady testified that she observed "the female officer ... searching in the boys' pockets" and taking things out of Elmer's and D.C.'s pockets. (Karteron Declaration, Ex. 8, pp. 15, 32).

         Both Williams and Benites testified that after the frisks failed to uncover any weapons, there was no evidence that the teens were engaged in criminal activity and they were free to leave. (Zuckerman Declaration, Ex. B, p. 149; Karteron Declaration, Ex. 5, p. 47). Nonetheless, the officers continued to talk to the young men, asking for their names, addresses, and "[b]asic information." (Karteron Declaration, Ex. 5, p. 47). Although Plaintiff may have interrupted that process, as discussed below, Williams testified that the officers "finished copying down whatever information [they] needed from the teens." (Id. p. 77). Indeed, Benites testified that she used that information to create three Stop, Question and Frisk Reports ("UF-250s"). (Karteron Declaration, Ex. 4, p. 224).

         Plaintiff Intervenes

         At some point during the verbal exchange between the two officers and the teens, Plaintiff intervened. According to Cannady, who claimed to have observed the incident from the time the police first pulled up in front of her apartment building, "maybe ten other people" were outside at the time. (Karteron Declaration, Ex. 8, pp. 15, 31 -32). These onlookers were on both sides of street and some, like Cannady herself, were in their front yards. (Id., pp. 33, 35).

         After observing the police stop and frisk the teens, some onlookers questioned the officers, asking why the teens had been stopped or, after the police removed the objects from the boys' pockets, why the officers were arresting them. (Id., pp. 15-16, 32, 34). Cannady herself recalled asking: "Why are you arresting them? Are you arresting them?" (Id., p. 35). However, according to Cannady, the onlookers remained in their yards and did not "engage in what was going on." (Id., pp. 33-35). Indeed, when Cannady received no response to her questions, she alerted J.M.'s mother by ringing her doorbell rather than intervening herself. (Id., pp. 19, 22, 35).

         Sometime after Cannady rang J.M.'s doorbell, Plaintiff approached the officers. (Id., pp. 35, 39). Five witness testified that they saw her arrive, but the witnesses' accounts differed substantially. Three of the witnesses-the two officers and Cannon-testified that Plaintiff arrived either screaming, yelling, or talking very loudly. Benites testified that Plaintiff "came in screaming and yelling" that the officers did not "have a reason to be annoying these kids." (Zuckerman Declaration, Ex. B, p. 85; Karteron Declaration, Ex. 4, p. 85). Williams also recalled that she was screaming, but testified that she directly addressed the officers, saying, "excuse me, why are you harassing these boys?" (Zuckerman Declaration, Ex. A, p. 55). Cannon variously described Plaintiffs tone as "talking really loud" and "kind of yelling, " but could not testify as to what Plaintiff said because she "wasn't concentrating on what she was saying." (Zuckerman Declaration, Ex. F, p. 15; Karteron Declaration, Ex. 12, pp. 15, 20).

         In contrast, two other witness, as well as Plaintiff herself, testified that Plaintiffs voice was never more than slightly raised throughout the incident. Cannady testified that Plaintiffs voice was only "a little raised" when she began speaking to the officers and that she "wasn't yelling." (Zuckerman Declaration, Ex. H, p. 41). D.C. recalled that Plaintiff spoke first to the teens, asking if the police were "harassing" them, and was not screaming or yelling. (Zuckerman Declaration, Ex. E, p. 24; Karteron Declaration, Ex. 9, p. 35).

         Plaintiff testified that she spoke first to the officers, twice asking them why the teens had been stopped. (Zuckerman Declaration, Ex. D, pp. 36-37). She recalled that one of the teens was "talking loudly" when she approached, but that she did not raise her voice. (Zuckerman Declaration, Ex. D, p. 58; Karteron Declaration, Ex. 10, p. 27). Indeed, Plaintiff claimed that she never screamed or yelled at the officers and only spoke "slightly above normal, " in a "distressed voice, " after Benites shoved her. (Zuckerman Declaration, Ex. D, p. 59; Karteron Declaration, Ex. 10, pp. 59-60).

         There was also a dispute regarding whether Plaintiffs actions caused a crowd to gather, or whether the crowd had already gathered before she arrived. Williams testified that as Plaintiff "got louder and louder with her yelling, " "more people started to come out of the apartment building behind where the kids were." (Zuckerman Declaration, Ex. A, pp. 56, 58). Benites attributed the crowd to Plaintiffs behavior, claiming that "people started coming out because [Plaintiff] was so loud." (Zuckerman Declaration, Ex. B, p. 91; Karteron Declaration, Ex. 4, p. 91). Although Plaintiff denied that she was loud, a social media post she made shortly after her release from detention stated that people "started to come out and get involved" after she intervened, and that "[t]here was about to be a riot." (Zuckerman Declaration, Ex. I, p. 1). In contrast, Cannady recalled that a crowd of "maybe ten" onlookers were already present and were questioning the police actions before Plaintiff even arrived. (Karteron Declaration, Ex. 8, pp. 32-35).

         Although all the witnesses agree that Plaintiff began to videotape the police activity using her iPhone, there is some dispute as to how close she was to the officers. Plaintiff testified that she was "[a]bout five feet" from the officers when she spoke to them initially, but that she had to step another foot away in order to "get[] a full shot of what was going on." (Zuckerman Declaration, Ex. D, pp. 36, 44; Karteron Declaration, Ex. 10, pp. 36, 44). When Plaintiff announced, "I am going to videotape your process, " Benites said that Plaintiff Was "interfering with police business and ... needed to step back." (Zuckerman Declaration, Ex. D, p. 45; Karteron Declaration, Ex. 10, p. 45).

         Plaintiff claims that she responded to Benites by stepping back another foot, but that Benites kept asking her to move back. (Zuckerman Declaration, Ex. D, pp. 46-47; Karteron Declaration, Ex. 10, pp. 46-47). Plaintiff stepped back a second time, but believed that stepping back a third time "would have put [her] without reach of being able to videotape the process." (Zuckerman Declaration, Ex. D, p. 47; Karteron Declaration, Ex. 10, p. 47). Accordingly, when Benites asked her to move back a third time, Plaintiff did not comply, believing she "was within the law in terms of being so many feet away at that point." (Zuckerman Declaration, Ex. D, p. 48; Karteron Declaration, Ex. 10, p. 48).

         Officers Benites and Williams recalled that Plaintiff approached, rather than backed away from them, during the videotaping. Williams testified that he and Benites continued to interview the teens until Plaintiff "began to put the cell phone up close to [his] face and up to [his] shield and ... nameplate." (Zuckerman Declaration, Ex. A, pp. 60-61; Karteron Declaration, Ex. 5, p. 61). When she was within six inches of him, Williams told Plaintiff: "Miss, you're free to record whatever you want, but you have to do it from a safe distance." (Zuckerman Declaration, Ex. A, p. 61; Karteron Declaration, Ex. 5, p. 61). According to Williams, Plaintiff then backed up six inches and demanded to know why the officers had stopped the teens. (Karteron Declaration, Ex. 5, pp. 62-63). Williams again told Plaintiff that she needed to back up, saying that the officers would "be happy to speak with her" when they finished interviewing the teens. (Zuckerman Declaration, Ex. A, p. 63; Karteron Declaration, Ex. 5, p. 63). Plaintiff not only refused to back up, even when asked repeatedly to do so, but again placed the cell phone "very close" to Williams' face. (Zuckerman Declaration, Ex. A, p. 63; Karteron Declaration, Ex. 5, pp. 63, 68).

         Benites recalled that Plaintiff not only "had the phone in [her] face and [Williams'] face, " but actually touched Benites' face with the iPhone. (Zuckerman Declaration, Ex. B, p. 92; Karteron Declaration, Ex. 4, p. 104). Benites described Plaintiff as "so close" that Benites "didn't even have space for [her]self." (Karteron Declaration, Ex. 4, p. 104). Both Benites and Williams testified that Benites told Plaintiff to back up. (Zuckerman Declaration, Ex. A, p. 66, & Ex. B., p. 92; Karteron Declaration, Ex. 4, p. 92, & Ex. 5, p. 68).

         In contrast, several of the civilian witnesses recalled that Plaintiff remained further away from the officers. Cannady recalled that Plaintiff announced that she was "taking ... badge numbers, " then held her phone up and appeared to film both officers' badges. (Zuckerman Declaration, Ex. H, p. 42; Karteron Declaration, Ex. 8, p. 42). However, according to Cannady, Plaintiff remained "[f]urther than an arm's length ... [m]aybe three or four feet away" from Williams as she attempted to film his badge. (Zuckerman Declaration, Ex. H, p. 42; Karteron Declaration, Ex. 8, p. 42). She then took two steps towards Benites, closing to within "[approximately three feet." (Karteron Declaration, Ex. 8, pp. 44-45). Although the officers told Plaintiff to stop recording or to turn the camera off, Plaintiff responded that it was "not illegal for [her] to record" and continued toward Benites. (Zuckerman Declaration, Ex. H, p. 41; Karteron Declaration, Ex. 8, pp. 16-17, 41, 45-46).

         Cannady never heard the officers tell Plaintiff that she could record if she moved back. (Karteron Declaration, Ex. 8, p. 51). Rather, Cannady heard Williams repeatedly tell Plaintiff to move back and heard the officers tell Plaintiff at least five times to stop recording. (Id., pp. 51, 70-71). According to Cannady, Plaintiff moved back two feet every time the officers asked, but refused to stop filming, saying: "It's not against the law to record." (Karteron Declaration, Ex. 8, pp. 52, 71).

         Like Cannady, Brown recalled that Plaintiffs phone was three or four feet from the officers, (Zuckerman Declaration, Ex. G, p. 24; Karteron Declaration, Ex. 11, p. 24), and that Plaintiff and the officers argued about the filming. Brown variously testified that the officers told Plaintiff to "stop filming or to stop with the phone, " to "turn that off, " or that she couldn't film there. (Karteron Declaration, Ex. 11, pp. 25, 35). Brown also recalled that an officer told Plaintiff either to "move along" or that "she couldn't film there." (Id. p. 35). However, Brown conceded that it was possible that the officers told Plaintiff that she could film from a safe distance. (Id.). According to Brown, Plaintiff moved back "a couple of steps"-maybe "four or five feet"-in response to police demands, but argued with the officers, maintaining that she had a right to film and saying: "I have my rights. I can stand here." (Id., pp. 25, 35, 44).

         D.C. recalled that Plaintiff was "about two feet" from the officers while she recorded them, although he characterized the distance as not "that close" or not "fairly close." (Zuckerman Declaration, Ex. E, p. 27; Karteron Declaration, Ex. 9, p. 27). He further recalled that the officers told her to "stop recording" and that "one cop told her to leave." (Karteron Declaration, Ex. 9, pp. 8, 26).

         The Physical Contact and ...

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