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Leibovitz v. City of New York

United States District Court, E.D. New York

March 2, 2018




         In a fourth amended complaint, plaintiff Etan Leibovitz (“plaintiff”), a self-described “full time activist and ‘citizen journalist, '” proceeding pro se, alleges various violations of his constitutional rights by defendants City of New York (the “City”) and police officers Brendan Anderson (“Officer Anderson”), Christopher Ryan (“Officer Ryan”), and David Del Villar, sued herein as “Del Villar, ” (“Officer Del Villar, ” together with Officer Anderson and Officer Ryan, the “officers” or “individual defendants, ” and the individual defendants together with the City, “defendants”) in connection with his arrest on November 19, 2014 and subsequent criminal proceedings. (See Fourth Amended Verified Complaint (“Compl.” or the “complaint”), ECF No. 62, at ¶¶ 1-6, 18.) Defendants have moved to dismiss the complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6). (Defendants' Memorandum of Law (“Def. Mem.”), ECF No. 84, at 1.)[1]For the reasons set forth below, defendants' motion to dismiss for failure to state a claim is granted in its entirety.


         I. Factual Background

         A. Plaintiff's Arrest

         As alleged in the complaint, at approximately 4:45 p.m. on November 19, 2014, plaintiff was arrested near the intersection of 84th Drive and Queens Boulevard in Queens, New York. (See Compl. at ¶¶ 25-76, 103.) On that date, plaintiff had been walking when he came upon Officers Anderson, Ryan, and Del Villar[2] searching a car and detaining an unidentified man, at approximately 4:30 p.m. (Id. at ¶¶ 26-27.) The car was the “first car on the street, ” i.e., closest to the intersection, and was parked on 84th Drive facing Queens Boulevard. (Id. at ¶ 27.) The detainee was “positioned with his back towards [the car], by the trunk, [and] standing, ” with Officer Anderson facing him. (Id.) Officer Ryan was searching the back seat of the car, Officer Del Villar was searching the front passenger area, and both officers were “positioned sideways, parallel to the ground.” (Id.) From approximately ten to twelve feet away from the hood of the vehicle being searched, plaintiff also observed that a crowd of twenty-five to thirty bystanders had gathered on the southeast and southwest corners of the intersection of 84th Drive and Queens Boulevard. (Id.)

         After plaintiff had observed the scene “for a few minutes, ” Officer Del Villar asked plaintiff, “[c]an I help you?” (Id. at ¶¶ 27-28.) Plaintiff responded by stating “[n]o, I am just observing.” (Id. at ¶ 29.) The officers did not, at that time, direct plaintiff to move. (Id. at ¶ 30.) At this point, plaintiff began recording on his cellular phone the officers' search of the vehicle. (Id. at ¶ 31.) Several minutes later, Officer Anderson asked plaintiff what plaintiff was doing, and plaintiff stated that he was recording the search. (Id. at ¶¶ 35-36.) Officer Anderson then directed plaintiff to “move back, ” (id. at ¶ 37), and plaintiff asked the officers where they would like him to stand. (Id. at ¶ 38.) Officer Anderson ordered plaintiff to move “approximately 3 [to] 5 feet in the direction of Main Street, ”[3] (id. at ¶ 40), and plaintiff complied. (Id. at ¶ 39.)

         According to plaintiff's complaint, after initially complying with Officer Anderson's direction to move back toward Main Street, plaintiff found it “more difficult to observe and record” the officers, (id. at ¶¶ 39-40), and, after a few minutes, plaintiff desired to document “that the detainee had his back to [the car] as well as the crowd that was gathering.” (Id. at ¶ 42.) Plaintiff then moved back toward the search on 84th Drive; specifically, he alleges that, “[w]hile still videotaping, [he] walked straight ahead on the side walk [sic], approximately 20 feet, parallel to 84th [Drive], ” then “made a U-turn and headed back.” (Id. at ¶¶ 43-44.) As plaintiff was returning to the area from which he had previously been filming, Officer Del Villar stated to plaintiff, “[h]ey sir!” (Id. at ¶ 45.) Plaintiff replied, “I am just taping it. Cameras make officers accountable.” (Id. at ¶ 45.) Officer Anderson responded to plaintiff by saying “[y]ou are going to make it to Hollywood, ” and threw an unidentified object “at [plaintiff].” (Id. at ¶ 46.)

         Plaintiff then asked Officer Anderson if he had thrown an object at plaintiff, and an unidentified bystander said, to one or more of the officers, “[h]ey, that's not nice[.]” (Id. at ¶¶ 47-48.) Plaintiff then said, to the bystander, “I know, did you see that?” (Id. at ¶ 49.) The bystander responded, “I saw it. . . . I am on your side honey.” (Id. at ¶ 50.) Plaintiff responded by stating, “[t]hey are retaliating, should we have them arrested? These pigs . . . [t]hey think they run the streets here. They work for us.” (Id. at ¶¶ 51-52.)

         At this point, Officer Del Villar approached plaintiff and said, in relevant part, “you can film all you want . . . [b]ut you will not use bad language in front of me!” (Id. at ¶¶ 53-57.) Officer Anderson then asked plaintiff why he was recording, and plaintiff replied that he was exercising his First Amendment right to record the officers conducting what Mr. Leibovitz believed to be an unlawful search. (Id. at ¶¶ 58-59.) Officer Anderson responded by referring to plaintiff as “‘a punk, ' or words to that effect, ” and plaintiff responded, “[w]hat? . . . I know my rights, according to Glik v. Cunniffe.” (Id. at ¶¶ 60-61.) Officer Anderson then ordered plaintiff to leave the scene. (Id. at ¶¶ 62-63.) Plaintiff “chose to continue recording, ” (id. at ¶ 65), and stated that he had “every right to record.” (Id. at ¶ 66.) At this point, the officers handcuffed and arrested plaintiff (See Id. at ¶¶ 67-76.) During that time, Officer Anderson stated “[o]h no, I have a cut now, we have you for assault.” (Id. at ¶ 71.) Additionally, according to plaintiff's complaint, “[a]t no point did the [officers] state for [plaintiff] to put his hands behind his back, ” (id. at ¶ 68), and plaintiff “did not resist arrest nor did he assault anyone.” (Id. at ¶ 73 (emphasis in original).) Plaintiff was arrested at approximately 4:45 p.m. (Id. at ¶ 76.)

         After the officers arrested plaintiff, they placed him in the back of a police car. (Id. at ¶ 75.) While plaintiff was in the car, an unidentified New York Police Department supervisor arrived at the scene and spoke with the officers. (Id. at ¶ 84-86.) The supervisor then, in relevant part, told plaintiff that he was being arrested for “disorderly conduct, resisting arrest, and OGA, ” or obstruction of governmental administration. (Id. at ¶ 89.) Approximately thirty to forty witnesses observed the incident and arrest. (Id. at ¶ 93.) The officers then transported plaintiff to the 107th Precinct, where his arrest was processed. (Id. at ¶¶ 92-96.)

         Following plaintiff's arrest, Officer Ryan initiated a criminal proceeding by executing under oath a criminal complaint, which he caused to be filed. (Id. at ¶¶ 98-99.) The criminal complaint, in relevant part, asserted that Officer Anderson had asked plaintiff to step back multiple times, that plaintiff had refused and began to yell and curse, causing a crowd to gather, and that plaintiff refused to provide identification when asked. (Id. at ¶ 99.) The criminal complaint further asserted that when Officer Anderson was attempting to handcuff plaintiff, plaintiff flailed his arms, grabbed Officer Anderson's hand, and lunged forward into a metal gate causing Officer Anderson to sustain lacerations and substantial pain to his hand, which required medical treatment at a local hospital. (Id.) Plaintiff asserts that the officers lied to the Queens District Attorney's Office and that the criminal complaint was “falsified, ” but does not elaborate as to any allegedly false allegations in the criminal complaint. (Id. at ¶¶ 97, 101.)

         B. Criminal Proceedings Against Plaintiff

         Based on the criminal complaint, executed by Officer Ryan, the Queens County District Attorney's Office charged plaintiff with one count of assault in the second degree, one count of obstructing governmental administration in the second degree, and one count of resisting arrest. (Id. at ¶ 103.) Plaintiff was arraigned and released on his own recognizance on November 20, 2014. (Id. at ¶¶ 104-05.) Plaintiff appeared in Queens County Criminal Court on December 11, 2014, at which time the Queens County District Attorney's Office offered to reduce the assault charge from a second degree charge to a third degree charge and offered plaintiff an adjournment in contemplation of dismissal, which he declined. (Id. at ¶ 122.)

         Plaintiff subsequently made several appearances in Queens County Criminal Court and made various demands for discovery. (See, e.g., Id. at ¶¶ 129, 163, 168 (noting appearances in January, March, and April 2015 and demands made at each appearance); see also Id. at ¶ 177 (discussing other appearances).) On October 30, 2015, the criminal case was “disposed of favorably” with respect to plaintiff. (Id. at ¶ 182.)

         C. Plaintiff's CCRB and Internal Affairs Complaints

         On November 26, 2014, plaintiff filed a complaint (the “CCRB Complaint”) with the New York City Civilian Complaint Review Board (“CCRB”). (Id. at ¶ 106.) On November 28, 2014, plaintiff filed a separate complaint (the “IAB Complaint”) with the New York Police Department's Internal Affairs Bureau (“IAB”).[4] (Id. at ¶¶ 107.) More specifically, plaintiff spoke with Oleg Chemyavsky of the “Legal Department at One Police Plaza, ” who opened the IAB Complaint, and the IAB Complaint was assigned complaint number 2014-39042. (Id. at ¶¶ 107-09.) The investigation of the IAB Complaint was subsequently referred to the New York Police Department's Queens South office, (id. at ¶ 110-11), which in turn informed plaintiff on January 7, 2015 that “Sergeant Busby” of the 107th Precinct had been assigned to investigate plaintiff's IAB Complaint.[5] (Id. at ¶ 125.) Plaintiff “expressed his concern” that it might be improper for the New York Police Department to investigate allegations of misconduct by its own officers and was told that such investigation is “standard NYPD policy.” (Id. at ¶¶ 126-27.) Plaintiff then began trying to contact Sergeant Busby. (Id. at ¶ 128.)

         Plaintiff's efforts to reach Sergeant Busby were unsuccessful, (id. at ¶ 131), but on March 13, 2015, plaintiff spoke with “Lieutenant Almonte” of the 107th Precinct regarding his IAB Complaint. (Id. at ¶¶ 131-34.) Lieutenant Almonte informed plaintiff that he would be investigating plaintiff's IAB Complaint, [6] and plaintiff reiterated his concerns about the New York Police Department's policies regarding investigations of allegations of officer misconduct. (Id. at 135-37.) Lieutenant Almonte stated that the department's policies were “established” and asked plaintiff what happened on the date of plaintiff's arrest. (Id. at ¶¶ 138-39.) Plaintiff suggested that he could provide Lieutenant Almonte with a copy of plaintiff's “Verified Amended Complaint” in the instant action, Lieutenant Almonte declined, and plaintiff subsequently ended the call because plaintiff's “recording device battery died.” (Id. at ¶¶ 140-43.)

         Plaintiff spoke to Lieutenant Almonte again on March 19, 2015. (Id. at ¶¶ 146-47.) At that time, and in relevant part, Lieutenant Almonte advised plaintiff that he had concluded his investigation, “as a result of [plaintiff] stating that he didn't want the NYPD to investigate.” (Id. at ¶ 148.) For his part, plaintiff questioned the thoroughness of the investigation in light of Lieutenant Almonte's admission that he had not reviewed “the criminal complaint relating to [plaintiff's] November 19th, 2014 arrest, ” suggested the investigation should be reopened, and expressed his view that Lieutenant Almonte might have a conflict of interest because the defendant officers “were from his precinct.” (See Id. at ¶¶ 152-160.) As of March 19, 2015, the investigation regarding plaintiff's IAB Complaint concluded with a finding that the defendant officers' actions were justified. (Id. at ¶¶ 161-62.)

         On April 30, 2015, plaintiff filed a new complaint with IAB. (Id. at ¶ 170.) Plaintiff's new complaint complained of the poor handling of his prior IAB Complaint, questioned the New York Police Department's practice of investigating allegations of misconduct against its own officers, and expressed concerns regarding certain aspects of his arrest and the criminal complaint against him. (Id. at ¶ 172.) On May 18, 2015, plaintiff was informed that “Sergeant Smith” was assigned to investigate the new IAB complaint, and that same day, plaintiff placed a phone call to Sergeant Smith and communicated his concerns. (Id. at ¶¶ 173-74.) Over the following months, plaintiff called Sergeant Smith several times to inquire as to the status of Sergeant Smith's investigation, (id. at ¶¶ 175), and on November 12, 2015, Sergeant Smith informed plaintiff that he had concluded his investigation and found no malfeasance by Lieutenant Almonte or the defendant officers. (Id. at 183-86.)

         II. Procedural Background

         Plaintiff commenced the instant action on December 1, 2014, by filing a “verified complaint, ” (“Initial Complaint, ” ECF No. 1), against the City, Officer Anderson, [7] and two fictitious defendants. On December 9, 2014, Magistrate Judge Lois Bloom granted plaintiff's motion to proceed in forma pauperis under 28 U.S.C. § 1915, (Order Granting In Forma Pauperis Application, ECF No. 4), and on December 15, 2014, plaintiff filed his first amended complaint (“FAC, ” ECF No. 6), that, in relevant part, replaced the two fictitious defendants with Officers Del Villar and Ryan. The Initial Complaint and FAC both alleged that the defendants had violated plaintiff's rights under the United States and New York State Constitutions by preventing him from recording his interactions with public officials. (Initial Complaint at ¶¶ 82-89; FAC at ¶¶ 80-87.) On April 22, 2015, the court held a pre-motion conference at which the court granted plaintiff leave to file a second amended complaint (“SAC”) and granted defendants leave to file a motion to dismiss plaintiff's SAC. (See April 22, 2015 Minute Entry.)

         On May 20, 2015, plaintiff filed his SAC, (ECF No. 31), which, among other things, added claims for false arrest, false imprisonment, and malicious abuse of process under federal and New York law, as well as for assault and battery under New York law. (SAC at ¶¶ 172-77, 183-202.) Because, at that time, plaintiff's criminal case remained pending and defendant indicated that he would not waive his Fifth Amendment rights with respect to the instant action, defendants sought, plaintiff consented to, and Magistrate Judge Bloom granted, a stay of this action. (See Letter Motion for Stay, ECF No. 33; Order Granting Stay, ECF No. 34.)

         In a letter dated November 4, 2015, plaintiff notified the court that the Queens County District Attorney's Office dismissed the criminal case against him on October 30, 2015, and indicated that he would seek to file a third amended complaint. (See November 4, 2015 Letter, ECF No. 35.) Plaintiff provided defendants with a copy of his proposed third amended complaint (“TAC, ” ECF No. 43), and filed it with the court on January 27, 2016. On February 4, 2016, defendants consented to plaintiff's amendment. (February 4, 2016 Letter, ECF No. 46.) On April 6, 2016, defendants sought leave to move to dismiss the TAC, (see Letter Seeking Pre-Motion Conference, ECF No. 52), and at a pre-motion conference held on May 6, 2016, the court granted plaintiff leave to file a fourth amended complaint and instructed the parties to inform the court how they intended to proceed following plaintiff's amendment. (See May 6, 2016 Minute Entry.)

         Plaintiff filed his Fourth Amended Complaint, which is presently before the court, asserting fourteen causes of action under federal and New York law, on May 20, 2016.[8] Plaintiff's first and second causes of action are against the City and are brought pursuant to 42 U.S.C. § 1983 (“section 1983”) and Monell v. Department of Social Services, 436 U.S. 658 (1978), and allege, respectively, deprivation of plaintiff's First Amendment right to videotape police officers, (Compl. at ¶¶ 202-18), and plaintiff's Fourteenth Amendment rights by virtue of the New York Police Department's practice of itself conducting investigations of misconduct by its own employees. (Id. at ¶¶ 219-25.) Plaintiff's third through sixth causes of action are brought under section 1983 against Officers Anderson, Ryan, and Del Villar and allege deprivation of plaintiff's First Amendment right to videotape police officers, (id. at ¶¶ 226-30), false arrest and false imprisonment in connection with Plaintiff's November 19, 2014 arrest and subsequent detention, (id. at ¶¶ 231-36), “denial of due process” under the Fourth and Fourteenth Amendments, and malicious prosecution (id. at ¶¶ 237-47), and malicious abuse of process. (Id. at ¶¶ 248-54.) Plaintiff's malicious prosecution and malicious abuse of process claims arise out of the officers' roles in arresting plaintiff as well as in initiating and maintaining his criminal prosecution. (Id. at 237-54.)

         Plaintiff's remaining causes of action are brought under state law and arise out of plaintiff's November 19, 2014 arrest and subsequent proceedings. (See generally Id. at ¶¶ 255-99). More specifically, plaintiff asserts, against the City, a claim for negligent hiring and/or failure to supervise, (id. at ¶¶ 259-260), and against the individual defendants, claims for violation of his rights under the New York State Constitution, false arrest and false imprisonment, malicious prosecution, malicious abuse of process, “the torts of assault and battery, ” and intentional infliction of emotional distress against Officers Anderson, Ryan, and Del Villar. (See Id. at ¶¶ 261-99.) Plaintiff also seeks to hold the City liable for the individual officers' alleged tortious conduct under the doctrine of respondeat superior.[9] (Id. at ¶¶ 255-58.)

         Defendants now move to dismiss the fourth amended complaint, (see generally Def. Mem.), and plaintiff opposes their motion. (See generally Plaintiff's Memorandum in Opposition to Defendants' Motion to Dismiss (“plaintiff's opposition, ” or “Opp.”), ECF No. 86.)[10]

         Legal Standard

         I. Rule 12(b)(6)

         A. Standard

         “To survive a motion to dismiss pursuant to Rule 12(b)(6), a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face when it contains sufficient factual content to “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). Although “[t]he plausibility standard is not akin to a ‘probability requirement, '” pleading “facts that are ‘merely consistent with' a defendant's liability” does not suffice to establish plausibility. Id. (citing and quoting Twombly, 550 U.S. at 556-57). “A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do, '” nor will a complaint that merely “tenders ‘naked assertions' devoid of ‘further factual enhancement.'” Id. (citing and quoting Twombly, 550 U.S. at 555-57). Importantly, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions, ” id., as well as to any “legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986) (citations omitted).

         Where a plaintiff proceeds pro se, courts must construe the plaintiff's complaint “liberally” at the motion to dismiss stage. Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). This means that the court must interpret a pro se complaint “to raise the strongest arguments that [it] suggest[s].” Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). Nonetheless, to survive a motion to dismiss, a pro se complaint “must contain sufficient factual allegations to meet the plausibility standard.” Green v. McLaughlin, 480 F. App'x 44, 46 (2d Cir. 2012) (summary order) (citing Harris, 572 F.3d at 72).

         B. Matters Outside the Pleadings

         As discussed above, a motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint. Therefore, “the district court is normally required to look only to the allegations on the face of the complaint.” Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007). “Documents that are attached to the complaint or incorporated in it by reference are deemed part of the pleading and may be considered, ” and “a document upon which the complaint solely relies and which is integral to the complaint may [also] be considered.” Id. (internal quotations, citations, and emphasis omitted).

         Here, in opposition to defendants' motion to dismiss, plaintiff has submitted various documents that are outside the scope of the Rule 12(b)(6) inquiry, including an affidavit, a statement of material facts pursuant to Local Rule 56.1, and a compact disc containing photographs, documents, and a video. (See, e.g., Plaintiff's Affidavit, ECF No. 85; Opp. at 6-9 (attaching statement of facts), 27-30 (attaching photographs and image of compact disc).) None of these documents were attached to, or incorporated by reference in, any of plaintiff's complaints, nor do they appear to be documents upon which the complaint relies such that they are integral to it. The court, therefore, will not consider those documents in deciding the defendants' motion.[11]

         II. Qualified Immunity

         In addition to asserting that plaintiff fails to state a claim under Rule 12(b)(6), Defendants argue that the individual defendants are entitled to qualified immunity. (See Def. Mem. at 11-16.)

         “Qualified immunity protects public officials from liability for civil damages when one of two conditions is satisfied: (a) the defendant's action did not violate clearly established law, or (b) it was objectively reasonable for the defendant to believe that his action did not violate such law.” Garcia v. Does, 779 F.3d 84, 92 (2d Cir. 2015) (quoting Russo v. City of Bridgeport, 479 F.3d 196, 211 (2d Cir. 2007)). Regarding the first of these conditions, “[o]nly Supreme Court and Second Circuit precedent existing at the time of the alleged violation is relevant in deciding whether a right is clearly established.” Moore v. Vega, 371 F.3d 110, 114 (2d Cir. 2004) (citing Townes v. City of New York, 176 F.3d 138, 144 (2d Cir. 1999)).

         As to the second condition, “the relevant question is whether a reasonable officer could have believed the [challenged conduct] to be lawful, in light of clearly established law and the information the . . . officer[] possessed.” Id. at 115 (quoting Anderson v. Creighton, 483 U.S. 635, 641 (1987)). As this formulation implies, the court may not evaluate the officer's conduct “with 20/20 hindsight.” Salim v. Proulx, 93 F.3d 86, 91 (2d Cir. 1996). Instead, “[t]he doctrine of qualified immunity serves to protect police from liability and suit when they are required to make on-the-spot judgments in tense circumstances, ” Lennon v. Miller, 66 F.3d 416, 424 (2d Cir. 1995) (citations omitted), and the court must therefore evaluate challenged conduct “from the perspective of a reasonable officer on the scene.” Kerman v. City of New York, 261 F.3d 229, 239 (2d Cir. 2001) (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)).

         Importantly, a defendant public official will be entitled to qualified immunity even if his decision was mistaken, so long as the decision was reasonable. Castro v. United States, 34 F.3d 106, 112 (2d Cir. 1994) (quoting Hunter v. Bryant, 502 U.S. 224, 229 (1991)). Further, “[t]he protection of qualified immunity applies regardless of whether the government official's error is a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quotation marks and citation omitted). In sum, “[t]he qualified immunity standard ‘gives ample room for mistaken judgments' by protecting ‘all but the plainly incompetent or those who knowingly violate the law.'” Hunter, 502 U.S. at 229 (quoting Malley v. Briggs, 475 U.S. 335, 343, 341 (1986)).

         Finally, because qualified immunity grants immunity from suit as well as from liability, courts should address it at the “earliest possible stage in litigation, ” Pearson, 555 U.S. at 231-32, and courts may “exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Id. at 236.


         I. Section 1983 Claims

         Section 1983 imposes liability on any “person” who deprives another of the rights, privileges, or immunities secured by the Constitution or laws of the United States and does so under color of law. See 42 U.S.C. § 1983. A section 1983 claim therefore has two essential elements. First, the “the conduct complained of must have been committed by a person acting under color of state law.” Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994) (citation omitted). Second, the conduct must have deprived the plaintiff of “rights, privileges or immunities secured by the Constitution or laws of the United States.” Id.

         A. Section 1983 Claims Against Individual Defendants

         i. First Amendment Claim

         The complaint asserts that Officers Anderson, Ryan, and Del Villar violated plaintiff's First Amendment rights in connection with the events of November 19, 2014, including by making “intimidating demands and unlawful direct orders . . . that plaintiff [cannot] record interactions between public officials in a public place.” (Compl. at ¶ 228.) “To recover on a First Amendment claim under [section] 1983, a plaintiff must demonstrate that his conduct is deserving of First Amendment protection and that the defendants' conduct of harassment was motivated by or substantially caused by his exercise of free speech.” Rattner v. Netburn, 930 F.2d 204, 208 (2d Cir. 1991) (quoting Donahue v. Windsor Locks Board of Fire Commissioners, 834 F.2d 54, 58 (2d Cir. 1987)); see also Dorsett v. Cty. of Nassau, 732 F.3d 157, 160 (2d Cir. 2013) (“To plead a First Amendment retaliation claim a plaintiff must show: (1) he has a right protected by the First Amendment; (2) the defendant's actions were motivated or substantially caused by his exercise of that right; and (3) the defendant's actions caused him some injury.” (citation omitted)).[12]

         Here, plaintiff fails adequately to allege that the conduct prompting his arrest was protected by the First Amendment because, even assuming that he has a “clearly established” right to observe and videotape police activity, any orders by the police that resulted in restrictions on that right were reasonable and permissible under the circumstances alleged.[13] In the alternative, plaintiff fails adequately to allege that the defendant officers are not entitled to qualified immunity because even assuming that the right to videotape police is “clearly established” and that defendant officers' conduct violated this right, it was objectively reasonable for the officers to believe that their actions did not violate clearly established law.

         The complaint alleges that when plaintiff informed Officer Anderson that plaintiff was recording the search, Officer Anderson directed him to move approximately three to five feet in the direction of Main Street, i.e., away from the car that the defendant officers were searching. (Compl. at ¶¶ 35-40.) Plaintiff alleges that he initially complied, (id. at ¶ 39), but then moved back toward the search on 84th Drive, because he wanted to record the incident and the gathering crowd. (Id. at ¶¶ 42-43.) The complaint also alleges that, after plaintiff had turned back toward the area to which Officer Anderson had directed him, he exchanged words with the officers, (id. at ¶ 44-45), including asking another bystander if plaintiff and the bystander should “have them arrested” and calling them “pigs.” (Id. at ¶ 51.) Officer Del Villar then left the ongoing search, walked over, and told plaintiff, in relevant part, “you can film all you want . . . [b]ut you will not use bad language in front of me!” (Id. at ¶¶ 53-57.)

         The court notes that the allegations in the complaint, accepted as true, therefore contradict plaintiff's stated basis for his First Amendment claim, which is that the defendant officers told plaintiff that he was categorically barred from “recording public officials in a public place.” (Id. at ¶ 228.) Instead, plaintiff's allegations establish that the defendant officers allowed plaintiff to record the search of the vehicle, though from a location that plaintiff alleges did not provide the best viewpoint. The complaint also alleges that Officer Del Villar affirmatively advised plaintiff, “you can film all you want.” (Id. at ¶ 55.) The court notes that the complaint does not allege any personal involvement of Officer Ryan vis-à-vis plaintiff until after plaintiff was placed under arrest, and thus does not allege a section 1983 First Amendment claim against Officer Ryan.

         Nevertheless, because plaintiff is proceeding pro se, the court reads the complaint to raise the strongest possible argument that it suggests. Read liberally, the complaint suggests that Officer Anderson's initial instruction to move back three to five feet in the direction of Main Street, (Compl. at ¶ 40), and his ultimate order to leave the scene, (id. at ¶ 63), were motivated or substantially caused by plaintiff's exercise of his First Amendment rights.

         Plaintiff asserts that there is a First Amendment right to videotape police officers in the performance of their official duties. As noted, the Second Circuit and the Supreme Court have not expressly recognized such a right. Even the courts that have recognized this right have made clear that the right to videotape is “not without limitations” and “may be subject to reasonable time, place, and manner restrictions.” Glik v. Cunniffe, 655 F.3d 78, 84 (1st Cir. 2011) (citing Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) (“[W]e agree with the Smiths that they had a First Amendment right, subject to reasonable time, manner and place restrictions, to photograph or videotape police conduct.”)); see also Higginbotham v. City of New York, 105 F.Supp.3d 369, 379 (S.D.N.Y. 2015) (“All of the circuit courts that have [addressed the issue] . . . have concluded that the First Amendment protects the right to record police officers performing their duties in a public space, subject to reasonable time, place and manner restrictions.” (citations omitted)). Time, place, and manner restrictions, in turn, are permissible if they “(1) are justified without reference to the content of the regulated speech, (2) are narrowly tailored to serve a significant governmental interest, and (3) leave open ample alternative channels for communication of the information.” Akinnagbe v. City of New York, 128 F.Supp.3d 539, 548 (E.D.N.Y. 2015) (quoting Marcavage v. City of New York, 689 F.3d 98, 104 (2d Cir. 2012)).

         Furthermore, “the right [to record police officers in public] does not apply when the recording would impede police officers in the performance of their duties.” Higginbotham, 105 F.Supp.3d at 379-80; see also Basinksi, 192 F.Supp.3d at 368 (“[C]ourts within this Circuit have recognized that ‘in cases where the right to record police activity has been recognized by our sister circuits, it appears that the protected conduct has typically involved using a handheld device to photograph or videotape at a certain distance from, and without interfering with, the police activity at issue.'” (quoting Rivera v. Foley, No. 14-CV-196(VLB), 2015 WL 1296258, at *10 (D. Conn. Mar. 23, 2015))).

         The allegations in the complaint, accepted as true, establish that when plaintiff first came upon the defendant officers, a crowd of twenty-five to thirty onlookers had formed and the officers were performing their official duties, specifically by searching a car and detaining a person. (Compl. at ¶ 27.) The complaint further alleges that plaintiff was initially standing ten to twelve feet away from the vehicle search, (id.), that Officer Anderson instructed plaintiff to step back three to five feet, (id. at ¶¶ 37-40), and that a crowd continued to gather. (Id. at ¶ 42.)

         Even viewing these allegations in the light most favorable to plaintiff, Officer Anderson's initial instruction to step back constitutes a justified and narrow restriction on the manner in which plaintiff could exercise his asserted First Amendment right to film the defendant officers' search. The police request to step back three to five feet is de minimis and the allegations in the complaint, if true, would not establish that the police directive to retreat ...

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