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Nicholas v. The City of New York

United States District Court, S.D. New York

February 27, 2017

THE CITY OF NEW YORK, et al., Defendants.


          J. PAUL OETKEN United States District Judge.

         Plaintiff Jason B. Nicholas, a professional photojournalist, filed this action pro se against Defendants William Bratton, Stephen Davis, Michael DeBonis, and the City of New York on December 8, 2015. (Dkt. No. 2.) Nicholas alleges that Defendants violated his First and Fourteenth Amendment rights by revoking his New York Police Department (“NYPD”) press credential without due process and in retaliation for the content of his speech. (Id.) Nicholas moved for a preliminary injunction compelling Defendants to return the press credential that they had revoked. (Dkt. No. 3.) The Court denied Nicholas's motion without prejudice. (Dkt. No. 34.) Nicholas thereafter filed an amended complaint (Dkt. No. 48 (“Compl.”)), which Defendants now move to dismiss under Federal Rules of Civil Procedure 12(b)(6) and 12(b)(1). (Dkt. No. 52.) For the reasons that follow, the motion is denied.

         I. Background

         The facts described herein are, unless otherwise noted, taken from the operative amended complaint, papers appended to the complaint, or, consistent with the Court's responsibility to liberally construe a pro se plaintiff's papers, from Nicholas's opposition to the motion to dismiss. See Escoffier v. City of N.Y., No. 13 Civ. 3918, 2016 WL 590229, at *1 (S.D.N.Y. Feb. 11, 2016). Nicholas's allegations are presumed true for the purposes of this motion.

         Nicholas is a professional photojournalist. (Compl. ¶ 52.) The NYPD first issued him a press credential (or “press pass”) in 2007. (Id.) According to Nicholas, an NYPD press credential is essentially required for photojournalists because it permits them to gain entry to official press conferences, to cross police lines, and to cover crime and fires scenes. (Id. ¶¶ 54-56.) For that reason, Nicholas alleges, most editors who hire journalists and photojournalists to cover New York City news consider a press credential to be a “necessary prerequisite for employment.” (Id. ¶ 57.)

         In his amended complaint, Nicholas details several encounters with the NYPD that led to the summary revocation of his press pass, including the incident that prompted the filing of his initial motion for a preliminary injunction.

         First, on September 17, 2014, Nicholas, on assignment for the New York Daily News, was “attacked and assaulted” by Thomas Crowe, a retired NYPD detective who was working as a bodyguard for someone Nicholas was trying to photograph. (Id. ¶ 59.) When the police arrived on the scene, they arrested Nicholas and charged him with assaulting Crowe. (Id.) Nicholas alleges that, as a result of the incident, Deputy Commissioner, Public Information (“DCPI”) Lieutenant Eugene Whyte seized Nicholas's press credential. (Id. ¶ 60.) Nicholas claims that his press credential was not returned until the charges against him were dropped four months later. (Id.)

         Second, on January 4, 2015, NYPD officers prevented Nicholas from photographing the funeral of a slain NYPD officer, despite the fact that Nicholas was standing across the street from the funeral home on a sidewalk that, according to Nicholas, was “open to the public.” (Id. ¶ 61.) Nicholas alleges that NYPD officers “ordered” him to get into a “press pen” about 150 yards away. (Id.) When Nicholas refused, Whyte appeared and declared the sidewalk on which Nicholas had been standing to be a “‘floating' frozen zone, ” where pedestrians could pass but credentialed press could not stand. (Id.) When Nicholas tried to film this exchange, Whyte took his press credential. (Id.) It was returned later the same day. (Id.)

         Third, as detailed in the Court's earlier Opinion and Order in this case, on October 30, 2015, Nicholas went to the scene of a building collapse in midtown Manhattan to obtain photographs of the rescue effort for the New York Daily News. (Id. ¶ 62.) When Nicholas arrived at the scene (which was under the control of New York City Fire Department (“FDNY”) as a “fire scene” (id. ¶¶ 75-77)), one construction worker had been brought out of the collapse dead and another worker was trapped but still alive (id. ¶¶ 63-64). Because the rescue effort could not be seen from the street, Nicholas positioned himself on the sidewalk next to the building-his press credential in plain view. (Id. ¶ 65.) An individual who refused to identify himself asked Nicholas to move, so he entered a store next door. (Id.)

         Shortly thereafter, DCPI personnel, including Defendants Michael DeBonis (a DCPI detective (id. ¶ 12)) and Stephen Davis (the Deputy Commissioner (id. ¶ 11)), arrived and promptly “rounded up” the NYPD-credentialed journalists who had been up on the public street, and “corralled” them into a “press pen” located so far from the scene that the journalists were unable to witness the rescue (id. ¶¶ 66-68). Nicholas, meanwhile, continued to wait in the store to witness the ongoing rescue attempt. (Id. ¶ 66.)

         When the second worker was finally freed and wheeled out on a stretcher, Nicholas left the store and walked “unimpeded” and not “challenged”-about 150 feet into the street and up to the ambulance-to take photographs. (Id. ¶¶ 91-92.) Nicholas maintains that he was “totally out of [the] way” of emergency workers, keeping a distance “standard among professional photojournalists.” (Id. ¶ 93.)

         It was only when Nicholas began to raise his camera, to photograph the worker's being loaded into the ambulance, that DeBonis “physically seized” him and “pulled [him] away from the scene.” (Id. ¶ 94-95.) Davis, who was also present at the scene, said to Nicholas: “This is the last time you'll do that, ” and “[e]veryone else over there is working with [the City].” (Id. ¶¶ 98-99.) Davis also remarked, “We work with you all the time.” (Id. ¶ 99.) He ordered DeBonis to “hold on” to Nicholas's press credential and to talk to Davis “personally” before returning it. (Id.) Davis added: “Get out of here. . . . Team player.” (Id.) DeBonis then instructed Nicholas to hand over his press credential, and Nicholas complied. (Id. ¶ 100.) As Nicholas left the scene, as directed, DeBonis remarked that the worker “was probably going to die, ” and Nicholas understood him additionally to imply that it would be problematic for Nicholas to use any photographs he might have taken. (Id. ¶¶ 101-02.) (The New York Daily News did, ultimately, publish Nicholas's photographs and video from the incident. (Id. ¶ 106.)) DeBonis loudly announced, in front of the “press pen, ” where the other journalists had been gathered, that Nicholas's credential had been revoked because he “jumped on the back of the ambulance” and that he was “never getting another press card.” (Id. ¶¶ 103-04.)

         Nicholas alleges that Defendants knew that the second trapped worker could not be saved and that Defendants therefore restricted press access to the scene to avoid “imagery created of a dead worker being brought out.” (Id. ¶¶ 80-83.) While Defendants removed photojournalists and journalists from the scene, other photographers remained “in the middle of the scene, taking pictures.” (Id. ¶ 84.) These photographers included individuals from city agencies, such as the FDNY and the NYPD, as well as a utility provider. (Id.) Nicholas alleges that these photographers were “charged, in part, with creating imagery for public distribution, ” and that none of their ultimately disseminated photographs depicted images of the two victims of the collapse. (Id. ¶ 105.) Members of the public were also permitted to walk on the sidewalk across the street from the scene, and some passersby took photographs or videos on their cell phones or cameras. (Id. ¶ 86.) DeBonis and Davis also knowingly, according to Nicholas, permitted two NYPD-credentialed photojournalists (from Reuters and the New York Post) to photograph the scene from “behind police lines, opposite the damaged building, ” from “within a commercial establishment”; they did so without consequence. (Id. ¶¶ 88-90.)

         Nicholas sent four emails to DeBonis in an attempt to recover his press credential. Each contained evidence that Nicholas had not been interfering with rescue personnel. (Id. ¶¶ 107-15.) DeBonis responded with only the phrase: “FROZEN ZONE.” (Id. ¶ 113.) This was the first Nicholas heard of a “frozen zone”-an area that the NYPD has designated as off-limits to certain journalists-during the rescue effort. (Id. ¶¶ 118-20.) Nicholas twice requested an opportunity to meet regarding the revocation of the credential, but DeBonis ignored these requests. (Id. ¶¶ 114-16.)

         Nicholas first learned that the revocation of his press credential was “temporary” and that he had a right to a hearing on the subject on May 12, 2016, during oral argument on his preliminary injunction motion in this case. (Id. ¶ 126.) The next day, he demanded a hearing. (Id. ¶ 127.) As discussed in this Court's previous Opinion and Order denying Nicholas's motion for a preliminary injunction, the procedures for obtaining an NYPD press credential, and for contesting its revocation, are codified in Sections 11-01 and 11-11 of Title 38 of the Rules of the City of New York. See 38 R.C.N.Y. §§ 11-01, 11-11. Under Section 11-11, a person whose press credential is summarily suspended may request a hearing before the NYPD (“Section 11- 11 hearing”) within five business days. Id. at § 11-11(b). The Commanding Officer of the NYPD Office of the DCPI must provide a written opinion explaining its decision within forty-five days of the hearing. Id. § 11-11(e).

         On May 19, 2016, Edward Mullen, DCPI's Commanding Officer, served as the hearing officer in Nicholas's proceeding, but Nicholas alleges that the proceeding was not “fair and impartial, ” in part because Whyte also presided over the proceeding, and because both Whyte and Mullen report to Davis (who made the decision to revoke Nicholas's credential in the first instance). (Compl. ¶¶ 128-30, 132-39.) According to Nicholas, another “member of the NYPD without an authorized role” was also present and was a biased participant in the decision-making process. (Id. ¶ 131.) Nicholas further alleges that he was not told what rule he had violated or afforded an opportunity to confront adverse witnesses or review adverse evidence, which he infers were presented and reviewed without him present. (Id. ¶¶ 140-47).

         On June 21, 2016, Whyte emailed Nicholas, inviting him to call at his convenience to discuss the results of the hearing. (Id. ¶ 149.) Two days later, at a status conference in this lawsuit, Nicholas learned that Defendants had decided to return the press credential. (Id. ¶¶ 150-51.) Nicholas's credential was returned to him on June 27, 2016. (Id. ¶ 154.) He was not provided with a written explanation of the decision. (Id. ¶¶ 150-51)

         Nicholas alleges that, because of Defendants' revocation of his press credential, his “news-gathering activity has been significantly abridged, ” and he was unable to get assignments from December 12, 2015, lost regular work for the New York Daily News, and missed out on other employment opportunities. (Id. ¶ 153.) (Nicholas separately represents that he is once again working as a photojournalist, as of July 4, 2016. (Dkt. No. 59 at 17-18.))

         Nicholas brings a claim pursuant to 42 U.S.C. § 1983 against DeBonis and Davis, for violating his First, Fourth, and Fourteenth Amendment rights when they removed him from the rescue scene on October 30, 2015. He alleges that they engaged in “content-based prior restraint of news-gathering, ” or in the alternative, that even if their actions were content-neutral, they were not reasonably related or narrowly tailored to a legitimate purpose; he also alleges that they violated the Equal Protection Clause by targeting Nicholas in particular. (Compl. ¶¶ 156-57.)

         Nicholas also brings a Section 1983 claim against William Bratton (then Police Commissioner of the NYPD), Davis, and the City of New York for violations of his First, Fourth, and Fourteenth Amendment rights by creating, following, encouraging and enforcing an unwritten policy, custom, or practice of interfering with news-gathering by: (1) physically blocking some news-gatherers' access; (2) confining journalists and photojournalists to “press pens” or other areas out of earshot or sight ...

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