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Jones v. McMahon
United States District Court, N.D. New York.March 28, 2005Not Reported in F.Supp.2d (Approx. 14 pages)
Jones v. McMahon
United States District Court, N.D. New York.March 28, 2005Not Reported in F.Supp.2d (Approx. 14 pages)
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.Andrew JONES; Stonehorse Goeman; Marie Peters; Wealthy Bucktooth, individually and as guardian ad litem for Holly Lyons and Jordan Bucktooth; Robert E. Bucktooth, Jr.; Cheryl Bucktooth, individually and as guardian ad litem for Nadine Bucktooth, Robert Bucktooth, and Garrett Bucktooth; Martha Bucktooth; Roberta Bucktooth, individually and as guardian ad litem for Houston Rockwell, Clay Rockwell, Odenhaida Rockwell, and Abilene Rockwell; Robert Bucktooth; Ronald Jones, Sr.; Ronald Jones, Jr.; Ruth Jones; Debby Jones; Karen Jones; Nikki Jones; Karoniakata Jones; Shawn Jones; Tracy Kappelmeier; individually and as guardian ad litem for Matthew Kappelmeier, Adam Kappelmeier, and Gabrielle Misener; Jackie Ashton; Shirley Snyder; Andrea Potter; Samantha Thompson; Martha J. Skye, individually and as guardian ad litem for Cara Skye, Andrew Skye, and Stormy Skye; Steven Lee Skye; Verna Montour; Sesiley R. Snyder; Alice Thompson; Minnie Garrow; Frances Dione; Wentawawi Dione; Joely Vandommelen, individually and as guardian ad litem for Daronhiokwas Horn, A‘Anase Horn, and Tekahawakwen Rice; Kahente Horn Miller, individually and as guardian ad litem for Karonhioko'he Horn; Kahentinetha Horn; Malcolm Hill; Kathy Melissa Smith; William Green III; Kevin Henhawk; Dyhyneyyks; Mona Logan; Gerald Logan, Jr.; Anthony Kloch, Jr.; Kenneth Kappelmeier; Frank Bistrovich; Brent Lyons; Brad Cooke, individually and as guardian ad litem for Brad Cooke, Jr.; Janet Cornelius; Jina Jimerson; Duane Beckman; Chad Hill; Donna Hill; Steve Stacy; Dale Dione; Robin Wanatee, individually and as guardian ad litem for Joshua Wanatee and Ally Wanatee; Esther Sundown; Shelley George; Shiela (Fish) Ninham, individually and as guardian ad litem for Shenna Green; Joe Stefanovich; Tyler Hemlock; Hayden Hemlock; Skroniati Stacy; Kakwirakeron; Tekarontake; Teyonienkwataseh; Daniel Moses; Andrew Moses; Ross John; Holly John; Barry Buckshot; Juanita (Lewis) Buckshot, individually and as guardian ad litem for Seth Tarbell, Deirdre M. Tarbell, and Andrew Buckshot; Kent Papineau; Leighann Neff; and Elaine Horton, as guardian ad litem for Marissa Horton, Plaintiffs,
v.
Superintendent of New York State Police James W. MCMAHON, in his personal capacity; County of Onondaga; Onondaga County Sheriff's Department; Onondaga County Sheriff Kevin Walsh, in his official and personal capacity; and the following persons in their personal capacities as New York State Troopers, Major James J. Parmley; Captain George Beach; Inv. Pamela J. Morris; Inv. Dennis J. Blythe; Inv. John F. Ahern; Sgt. Joseph W. Smith; Trp. Jeffrey Sergott; Trp. Michael S. Slade; Trp. James D. Moynihan; Trp. James J. Jecko; Sgt. Robert Haumann; Trp. Mark E. Chaffee; Trp. Christopher J. Clark; Trp. Paul K. Kunzwiler; Trp. Douglas W. Shetler; Trp. Patrick M. DiPirro; Trp. Gregory Eberl; Sgt. Gary A. Barlow; Trp. Mark E. Lepcyzk; Trp. Martin Zubrzycko; Trp. Glenn Miner; Trp. Gary Darstein; Trp. Kevin Buttenschon; Sgt. Chris A. Smith; Sgt. Norman Mattice; Capt. John E. Wood; Lt. Thomas P. Connelly; Inv. Jerry Brown; Sgt. Harry Schleiser; Inv. Norman Ashbarry; Trp. Peter S. Leadley; Trp. Martin J. Williams; Trp. Gloria L. Wood; Trp. David G. Bonner; Trp. Dennis J. Burgos; Trp. John P. Dougherty; Trp. David V. Dye; Trp. Daryl O. Free; Sgt. James J. Greenwood; Trp. Andrew Halinski; Trp. Robert B. Heath; Trp. Robert H. Hovey, Jr.; Trp. Robert A. Jureller; Trp. Stephen P. Kealy; Trp. Troy D. Little; Trp. Edward J. Marecek; Trp. Ronald G. Morse; Trp. Paul M. Murray; Trp. Anthony Randazzo; Trp. Allen Riley; Sgt. Chris A. Smith; Trp. Frederick A. Smith; Sgt. Steven B. Kruth; John Doe 1-100; and Jane Doe 1-100, Defendants.
No. 5:98-CV-374 FJS/GHL.
March 28, 2005.
Attorneys and Law Firms
Morvillo, Abramowitz, Grand, Iason & Silberberg, P.C., New York, New York, for Plaintiffs, Robert J. Anello, Elkan Abramowitz, Alvin Leonard Bragg, James C. Dugan, Jodi M. Peikin, of counsel.
Hoffman, Hubert & Hoffman, LLP, Syracuse, New York, for Plaintiffs, Terrence Hoffman, of counsel.
Office of Onondaga County Attorney, Syracuse, New York, for Defendants Walsh, County of Onondaga, and Onondaga County Sheriff's Department, Carol L. Rhinehart, Joanna Gozzi, of counsel.
Office of the New York State Attorney General, Syracuse, New York, for Defendant McMahon and State Defendants, Senta B. Siuda, AAG, of counsel.
MEMORANDUM-DECISION AND ORDER
SCULLIN, Chief J.
I. INTRODUCTION
*1 Some or all of Plaintiffs bring the following causes of action against some or all of Defendants: (1) excessive use of force in violation of the Fourth and Fourteenth Amendments to the United States Constitution and pursuant to 42 U.S.C. § 1983; (2) denial of due process in violation of the Fifth and Fourteenth Amendments and pursuant to § 1983; (3) denial of the freedoms of speech, assembly, and religion in violation of the First and Fourteenth Amendments and pursuant to § 1983; (4) conspiracy to deny the freedom of speech, assembly, and religion pursuant to § 1983; (5) conspiracy to deny equal access to the freedom of speech, assembly, and religion pursuant to § 1985(3); (6) deliberate indifference to medical needs in violation of the Eighth Amendment and pursuant to § 1983; (7) state law false arrest and false imprisonment; (8) state law assault and battery; (9) state law malicious prosecution; (10) state law intentional infliction of emotional distress; and (11) state law negligent infliction of emotional distress.1
Presently before the Court are (1) Defendant Walsh's motion for summary judgment on all claims, (2) Defendant McMahon's and State Defendants'2 motion for summary judgment on all claims except that of Plaintiff Kenneth Kappelmeier for excessive use of force, and (3) Plaintiffs' cross-motion for summary judgment on their claims against State Defendants.
On September 20, 2004, the Court issued an Order limiting the scope of the pending motions to the issue of qualified immunity. See Dkt. No. 317 at 4. Accordingly, with the exception of Defendants Walsh's and McMahon's motions, the Court will limit its consideration of the parties' motions to that issue. With respect to Defendants Walsh and McMahon, the Court finds that the parties have fully briefed the merits of Plaintiffs' claims and that, therefore, the Court's consideration of the merits of those claims will not prejudice Plaintiffs.
II. BACKGROUND
Nearly every specific factual issue in this case is in dispute. However, the broad factual background is undisputed. In early 1997, there was a conflict among members of the Onondaga Nation with respect to an agreement that had been entered into by the State of New York and certain tribal leaders. That agreement concerned the collection of New York state sales tax for sales made on the reservation. On May 8, 1997, a number of tribal members opposed to the agreement started a bonfire in protest on or near property that Plaintiff Andrew Jones owned along the east side of I-81 near Nedrow, New York. The bonfire continued to burn throughout the following week.
Sometime after the bonfire was started, Onondaga chiefs, whose legitimacy Plaintiffs question, provided Defendants with information about a large gathering of protesters that was planned for May 18, 1997, on Andrew Jones' property. Defendants were also aware of flyers that advertised the gathering. On May 18, 1997, a large number of members from the Onondaga Nation, members of other tribes, members of the media, and a few non-Native American supporters gathered at the site of the fire (“gathering area”). At the same time, a large number of State Police troopers assembled at an area to the east of the interstate and north of the gathering area. Early in the afternoon, several of the Native Americans entered the northbound lanes of the interstate. They completely blocked northbound traffic and proceeded to hand out flyers to motorists. After a time, they began to allow motorists to proceed along the left shoulder. However, even then, traffic was forced to stop momentarily in order to go around the protesters. As the motorists were stopped, some protesters walked down the interstate and handed out literature to the stopped motorists. After a time, the protesters moved off the highway to the gathering area and on the right shoulder of the highway. After they did so, State Police troopers in riot gear advanced southward toward the gathering area and proceeded to arrest twenty-four individuals in the crowd of protesters. The Onondaga County Sheriff's Department transported those arrested to the Onondaga County Justice Center where they were processed.
III. DISCUSSION
A. Standard of review
*2 A court may grant summary judgment when the moving party carries its burden of showing the absence of a genuine issue of material fact. See Fed.R.Civ.P. 56(c). In making this determination, the court must resolve all ambiguities and draw all reasonable inferences in a light most favorable to the non-moving party. See Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.1991) (citation omitted). If the moving party has met its burden, the nonmoving party may not rely upon his pleadings but must come forward with specific facts showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56(e).
B. Defendant Walsh3
1. Plaintiffs' due process claims
Plaintiffs' second claim for relief asserts that
[t]he conduct of the trooper defendants in arresting, detaining, and prosecuting the plaintiffs ... constitutes deprivation of the right to due process of law guaranteed by the Fifth and Fourteenth Amendments.... The supervising defendants caused these acts to occur either through deliberate indifference or by ratifying, condoning or ordering such acts.
See Second Amended Complaint at ¶ 586. Plaintiffs' second claim for relief relies upon the due process clauses of the Fifth and Fourteenth Amendments. However, “[w]here a particular Amendment ‘provides an explicit textual source of constitutional protection’ against a particular sort of government behavior, ‘that Amendment, not the more generalized notion of “substantive due process,” must be the guide for analyzing these claims.” ’ Albright v. Oliver, 510 U.S. 266, 273 (1994) (quotation and footnote omitted). Constitutional claims related to a plaintiff's arrest, detention, or prosecution must be brought pursuant to the Fourth Amendment rather than the due process clauses. See id. at 281 (Kennedy and Thomas, JJ., concurring) (arrest); Murphy v. Lynn, 118 F.3d 938, 944-45 (2d Cir.1997) (citation omitted) (detention); Washington v.. County of Rockland, 373 F.3d 310, 316 (2d Cir.2004) (citation omitted) (prosecution). Therefore, the factual allegations of Plaintiffs' second claim for relief do not state due process claims. Accordingly, the Court grants Defendant Walsh's motion and for summary judgment with respect to Plaintiffs' due process claims.4
2. Plaintiffs' First Amendment claims
It is well-settled in the Second Circuit that personal involvement of the defendant in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983. See Moffit v. Town of Brookfield, 950 F.2d 880, 886 (2d Cir.1991) (quotation and other citation omitted).
A defendant who occupies a supervisory position may be found to be personally involved in the following ways: (1) direct participation in the wrong; (2) failure to remedy the wrong after learning of the violation through a report or appeal; (3) creation of a policy or custom under which unconstitutional practices occurred or permitting such a policy or custom to continue; and (4) gross negligence in managing the subordinates who caused the unlawful event or deliberate indifference to the rights of the plaintiff by failing to act on information that unconstitutional practices have taken place. See id. (quotation and footnote omitted).
*3 There appear to be two aspects to Plaintiffs' theory regarding their First Amendment claims against Defendant Walsh. First, they believe that Defendant Walsh participated in the events leading up to Plaintiffs' arrests with knowledge that State Defendants would likely violate Plaintiffs' First Amendment rights. Second, they believe that Defendant Walsh should have released them from detention once he was aware of the circumstances of their arrests.
With respect to the first aspect of Plaintiffs' First Amendment claim against Defendant Walsh, Plaintiffs refer to Defendant Walsh's Statement of Material Facts and their response to it for evidentiary support. These documents indicate that, on or about May 15 or 16, 1997, the Onondaga chiefs met twice with Onondaga County Sheriff's Department members. See Plaintiffs' Response to Defendant Walsh's Statement of Material Facts at ¶ 6P. The chiefs were working with the Onondaga County Sheriff's Department to provide information about the gathering on Andrew Jones' property of persons whom the chiefs regarded as “ ‘troublemakers” ’ and “ ‘dissidents.” ’ See id. at ¶ 7P. Prior to the day of the arrests, Defendant Walsh or his subordinates saw flyers advertising the gathering on Plaintiff Andrew Jones' property. Defendant Walsh's subordinates kept him informed about the planning and preparations for the joint police response. See id. at ¶ 9P. As of the date of the arrests, the Onondaga County Sheriff's Department had had a long-standing relationship with the Onondaga chiefs. See id. at ¶ 10P. When State Defendants moved to the gathering area, one of Defendant Walsh's subordinates, with his authorization, called Onondaga County Sheriff's Department members for backup. Finally, Defendant Walsh states that, some time prior to the day of the arrests, he learned that there was going to be a protest on or near the interstate in Nedrow, New York. See Defendant Walsh's Statement of Material Facts at ¶ 2.
Despite Plaintiffs' assertion to the contrary, these statements do not indicate that Defendant Walsh had any part in determining when State Defendants would approach the gathering area, what they would do once they arrived, or whom they would arrest. Therefore, the Court finds that Plaintiffs have not shown that Defendant Walsh was personally involved in their arrests.
With respect to the second aspect of Plaintiffs' First Amendment claim against Defendant Walsh, they cite to documents in the record that show that Defendant Walsh became aware of the circumstances of the arrests. Assuming arguendo that Defendant Walsh did become aware of the arrest circumstances, the question is whether he violated Plaintiffs' First Amendment rights by failing to release them from detention. Plaintiffs have cited no legal authority for the proposition that a sheriff may release arrestees committed to his care when he believes that their arrests were unlawful. Moreover, under New York law, Defendant Walsh had no legal authority to release Plaintiffs without a judicial order to do so. See N.Y. Correct. Law § 500-c(4), (6). Therefore, because Defendant Walsh had no legal authority to release Plaintiffs, the Court finds that they cannot hold him liable for his failure to do so. Furthermore, the Court concludes that, even if Defendant Walsh had the legal authority to release Plaintiffs, his failure to do so in reliance upon the arrests that State Defendants made would have been reasonable. Accordingly, the Court grants Defendant Walsh's motion for summary judgment with respect to Plaintiffs' First Amendment claims.
*4 “To prove a § 1983 conspiracy, a plaintiff must show: (1) an agreement between two or more state actors or between a state actor and a private entity; (2) to act in concert to inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal causing damages.” Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir.1999) (citations omitted).
Plaintiffs' Response to Defendant Walsh's Statement of Material Facts provides no evidence of an agreement between Defendant Walsh or his subordinates and any other state actor or private entity to act in concert to inflict an unconstitutional injury. At most, the evidence shows that Defendant Walsh agreed to assist State Defendants in the event that the interstate was blocked. Since state action to ensure free passage on an interstate is appropriate if done in a lawful manner, there is nothing unlawful about an agreement to assist with such state action. Since Plaintiffs have produced no evidence that Defendant Walsh conspired with other state actors or private entity to act in concert to inflict an unconstitutional injury, they have failed to show a constitutional violation. Accordingly, the Court grants Defendant Walsh's motion for summary judgment with respect to Plaintiffs' § 1983 conspiracy claims.
4. Plaintiffs' § 1985(3) conspiracy claims
To state a § 1985(3) claim, a plaintiff must allege facts showing
(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of equal protection of the laws, or of equal privileges and immunities under the laws; (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right of a citizen of the United States.
Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1087-88 (2d Cir.1993) (citation omitted). “Furthermore, the conspiracy must also be motivated by ‘some racial or perhaps otherwise class-based, invidious discriminatory animus behind the conspirators' actions.” ’ Id. at 1088 (quotation omitted).
Plaintiffs cite Defendant Walsh's Statement of Material Facts and their response to it in support of their assertion that Defendant Walsh was motivated by discriminatory intent. However, these documents do not show that Defendant Walsh acted with class-based discriminatory animus. At most, they indicate that the Onondaga County Sheriff's Department had cultivated a working relationship with the Onondaga Nation and its representatives. Since Plaintiffs have offered no evidence that Defendant Walsh acted out of animus toward them because they were Native Americans, they have failed to show a constitutional violation. Accordingly, the Court grants Defendant Walsh's motion for summary judgment with respect to Plaintiffs' § 1985(3) claims.
5. Plaintiffs' Eighth Amendment claims
Plaintiffs' sixth claim for relief asserts that Defendant Walsh violated the Eighth Amendment when he acted with deliberate indifference to arrested Defendants' medical needs. The Eighth Amendment only applies to persons who have been convicted. See City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983) (quotation and other citation omitted). It does not protect arrestees. Therefore, Plaintiffs have not shown that Defendant Walsh violated their Eighth Amendment rights. Accordingly, the Court grants Defendant Walsh's motion for summary judgment with respect to Plaintiffs' Eighth Amendment claims.
6. Plaintiffs' false arrest and false imprisonment claims
*5 Under New York law, the torts of false arrest and false imprisonment have the same elements. To establish either tort, a plaintiff “must show that: (1) the defendant intended to confine him, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement and (4) the confinement was not otherwise privileged....” Broughton v. State, 37 N.Y.2d 451, 456-57 (1975) (citations omitted) (false imprisonment); accord Savino v. City of N.Y., 331 F.3d 63, 75 (2d Cir.2003) (quotation omitted) (false arrest). Plaintiffs admit that neither Defendant Walsh nor any employee of the Onondaga County Sheriff's Department made any arrests. See Plaintiffs' Response to Defendant Walsh's Statement of Material Facts at ¶¶ 12, 18. Nor have they produced any evidence that Defendant Walsh was involved in deciding whom State Defendants would arrest. Furthermore, insofar as Plaintiffs claim that Defendant Walsh committed these torts by failing to release them, his detention of Plaintiffs following State Defendants' arrests of them was privileged. See N.Y. Correct. Law § 500-c(4), (6). Accordingly, because Defendant Walsh's only actions relevant to Plaintiffs' confinement were privileged, the Court grants Defendant Walsh's motion for summary judgment with respect to Plaintiffs' false arrest and false imprisonment claims.
7. Plaintiffs' assault and battery claims
Plaintiffs' eighth claim for relief states that “[t]he trooper defendants, in their arrests of the above named plaintiffs, intentionally, knowingly, and willfully, either inflicted personal injury on the plaintiffs or placed them in apprehension thereof. The supervising defendants caused these acts to occur either through deliberate indifference or by ratifying, condoning or ordering such acts....” See Second Amended Complaint at ¶ 607. Plaintiffs admit that neither Defendant Walsh nor any employee of the Onondaga County Sheriff's Department made any arrests. See Plaintiffs' Response to Defendant Walsh's Statement of Material Facts at ¶¶ 12, 18. Plaintiffs have produced no evidence that Defendant Walsh acted with deliberate indifference with respect to their arrests or ratified, condoned, or ordered their arrests. Accordingly, the Court grants Defendant Walsh's motion for summary judgment with respect to Plaintiffs' assault and battery claims.
8. Plaintiffs' malicious prosecution claims
Under New York law “[t]he elements of the tort of malicious prosecution are: (1) the commencement or continuation of a criminal proceeding by the defendant against the plaintiff, (2) the termination of the proceeding in favor of the accused, (3) the absence of probable cause for the criminal proceeding and (4) actual malice.” Broughton, 37 N.Y.2d at 457 (citation omitted). Plaintiffs admit that neither Defendant Walsh nor any employee of the Onondaga County Sheriff's Department made any arrests. See Plaintiffs' Response to Defendant Walsh's Statement of Material Facts at ¶¶ 12, 18. They also admit that Defendant Walsh did not write any complaints. See id. at ¶ 18. They have produced no evidence that Defendant Walsh was involved in deciding whom State Defendants would arrest. Accordingly, because Plaintiffs have produced no evidence that Defendant Walsh was involved in the commencement or continuation of criminal proceedings against them, the Court grants Defendant Walsh's motion for summary judgment with respect to Plaintiffs' malicious prosecution claims.
9. Plaintiffs' intentional infliction of emotional distress claims
*6 The elements of intentional infliction of emotional distress are “(i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress.” Howell v. N.Y. Post Co., Inc ., 81 N.Y.2d 115, 121 (1993).
Plaintiffs argue that the Court should not consider their emotional distress claims at this time because they include claims of non-arrested Plaintiffs whom the parties have not yet deposed. Regardless, the Court finds that Defendant Walsh is entitled to summary judgment with respect to Plaintiffs' intentional infliction of emotional distress claims at this time. Plaintiffs have made numerous arguments with respect to their other claims attempting to show a connection between the events of May 18, 1997, and thereafter and Defendant Walsh's acts or omissions. In support of these arguments, Plaintiffs have presented no evidence that Defendant Walsh acted in an extreme or outrageous manner or with an intent to cause severe emotional distress. Accordingly, because Plaintiffs' extensive submissions fail to raise a genuine issue with respect to either of these elements, the Court grants Defendant Walsh's motion for summary judgment with respect to Plaintiffs' intentional infliction of emotional distress claims.
10. Plaintiffs' negligent infliction of emotional distress claims
“Under New York law, a plaintiff may establish [a negligent infliction of emotional distress] claim in one of two ways: (1) the ‘bystander’ theory; or (2) the ‘direct duty theory.” ’ Mortise v. United States, 102 F.3d 693, 696 (2d Cir.1996). Under the “bystander theory,”
where a defendant negligently exposes a plaintiff to an unreasonable risk of bodily injury or death, the plaintiff may recover, as proper element of his or her damages, damages for injuries suffered in consequence of the observation of the serious injury or death of a member of his or her immediate family-assuming, of course, that it is established that the defendant's conduct was a substantial factor bringing about such injury or death.
Bovsun v. Sanperi, 61 N.Y.2d 219, 230-31 (1984) (footnote omitted). Under the “direct duty theory,” “when there is a duty owed by defendant to plaintiff, breach of that duty resulting directly in emotional harm is compensable even though no physical injury occurred.” Kennedy v. McKesson Co., 58 N.Y.2d 500, 504 (1983).
Plaintiffs have not produced any evidence that Defendant Walsh either exposed them to an unreasonable risk of bodily injury or death or breached a duty that he owed to them. Accordingly, the Court grants Defendant Walsh's motion for summary judgment with respect to Plaintiffs' negligent infliction of emotional distress claims.6
C. Defendant McMahon7
Plaintiffs have made several assertions regarding Defendant McMahon. Some of these assertions involve events that occurred after May 18, 1997, which Plaintiffs have not linked to their alleged injuries. See Plaintiffs' Statement of Material Facts at ¶¶ 172, 173, 448. Plaintiffs also state that Defendant McMahon is the highest ranking official within the State Police and is vested with ultimate supervisory power over the State Police. See id. at ¶ 444. They assert that he was aware of the possibility of a protest at the gathering area on May 18, 1997. See id. at ¶ 445. They also state that Defendant Parmley kept people in Albany, including one of Defendant McMahon's direct subordinates, informed about events as they transpired on May 18, 1997. See id. at ¶ 446. Finally, they assert, without citation to the record, that Defendant McMahon was in communication with Defendant Parmley and/or other supervisors on May 18, 1997. See id. at ¶ 447. The citation to the record that they do provide accompanies the following assertion that, prior to the arrests of May 18, 1997, Defendant Parmley attempted to contact Defendant McMahon's direct subordinate. See id. Even if true, none of these statements or any other statements in Plaintiffs' Statement of Material Facts supports a conclusion that Defendant McMahon was personally involved in the alleged deprivations of their First Amendment rights, that he conspired with anyone to do anything, or, more generally, that he took or failed to take, either directly or indirectly, any action that can be linked to their injury. Accordingly, the Court grants Defendant McMahon's motion for summary judgment with respect to all of Plaintiffs' claims.
*7 The remaining Defendants (“State Defendants”) are all current or former State Police officers. When a defendant officer claims that he is entitled to qualified immunity, the court first asks “whether the facts, viewed in the light most favorable to the plaintiff, establish a constitutional violation.” Sira v. Morton, 380 F.3d 57, 68-69 (2d Cir.2004) (citation omitted). If they do, the court next asks “ ‘whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” ’ Id. at 69 (quotation omitted). “If a reasonable officer could have believed that the challenged conduct was lawful at the time of the violation, then qualified immunity bars the claim .” Id. (citations omitted).
With these principles in mind, the Court will examine each of Plaintiffs' federal-law claims.
1. Plaintiffs' First Amendment claims
State Defendants do not argue that Plaintiffs' gathering standing alone was not protected First Amendment activity or that a reasonable officer could have believed that the First Amendment did not protect such activity. Assuming that the gathering of Plaintiffs was protected First Amendment activity, the Court finds that there are still issues of fact with respect to whether State Defendants' actions violated Plaintiffs' First Amendment rights. See Redd v. City of Enterprise, 140 F.3d 1378, 1383 (11th Cir.1998) (“When a police officer has probable cause to believe that a person is committing a particular public offense, he is justified in arresting that person, even if the offender may be speaking at the time that he is arrested.” (citations omitted)). As is discussed in detail below, based upon the present record, the Court is unable to determine as a matter of law whether a reasonable officer in State Defendants' circumstances could have believed that he had probable cause to disperse the gathering and make arrests. Accordingly, the Court denies State Defendants' motion and denies Plaintiffs' cross-motion for summary judgment with respect to Plaintiffs' First Amendment claims against State Defendants.10
2. Plaintiffs' § 1983 conspiracy claims
As noted above, for Plaintiffs to establish § 1983 conspiracy claims, they must produce evidence that State Defendants entered a conspiracy to act in concert to inflict a constitutional injury. See Pangburn, 200 F.3d at 72 (citations omitted). The papers that Plaintiffs have submitted with respect to the pending motions do not indicate what evidence they believe supports their conspiracy claims.11 As noted above, Plaintiffs have presented evidence that Defendant Walsh agreed to assist State Defendants if they had to respond to an interstate blockage. Plaintiffs have not shown that this was an agreement to inflict a constitutional injury. With respect to the interactions among State Defendants, Plaintiffs have also failed to offer any evidence that would suggest that there were agreements to act in concert to inflict a constitutional injury. In fact, Plaintiffs' repeated reference to the uncertainty that State Defendants had as to what they should do undermines any allegation of conspiracy. See Plaintiffs' Statement of Material Facts at ¶¶ 123-27, 129-30, 133. Accordingly, the Court grants State Defendants' motion and denies Plaintiff's cross-motion for summary judgment with respect to Plaintiffs' § 1983 conspiracy claims.
3. Plaintiffs' § 1985(3) conspiracy claims
*8 As noted above, for a plaintiff to establish a § 1985(3) claim, he must allege, inter alia, that the defendants conspired to deny the plaintiff the equal protection of the laws and were motivated by some class-based discriminatory animus. See Mian, 7 F.3d at 1088 (quotation omitted).
Although Plaintiffs have apparently ignored these elements of a § 1985(3) claim, they have sought to marshal the following evidence relevant to these elements as part of their theory of their § 1985(3) claims. State Defendants formed an “Indian Detail.” See Plaintiffs' Statement of Material Facts at ¶ 51. A State Defendant trooper states that some of the troopers were discussing how they believed that they were asked to respond to the potential interstate blockage so that the Onondaga County Sheriff's Department would not be hampered in its desire to maintain good day-to-day relations with the Onondaga Nation. See Deposition of David Dye, taken on May 22, 2001, at 124-25. State Defendant troopers were instructed that Plaintiffs might put women and children in front of them to prevent law enforcement action. See Plaintiffs' Statement of Material Facts at ¶ 107. When State Defendants arrested Plaintiff Peters, they did not grant her request to put down her sacred pipe before restraining her. See Deposition of Marie Mitchell Peters, taken October 16, 2001, at 115. Despite Plaintiffs' assertion to the contrary, the Court finds that none of this evidence, even when considered in the aggregate, shows that State Defendants were motivated by class-based discriminatory animus. Instead, the evidence tends to show that State Defendants engaged in standard police procedures and, perhaps, exercised prudent political judgment.
As a final piece of evidence, Plaintiffs note that State Defendants did not arrest the members of the media who were present. Although Plaintiffs state that the media members were non-Native Americans, they do not cite to anything in the record that establishes that fact. Regardless, even if the media members were non-Native Americans, it is clear that State Defendants made a distinction in their arrests between media members and non-media members rather than between Native Americans and non-Native Americans.12 Moreover, three Caucasians allege that Defendants violated their First Amendment rights, and two Caucasians allege that State Defendant unlawfully arrested them. See Second Amended Complaint at ¶¶ 12-13, 18, 24. Furthermore, Plaintiffs state that State Defendants “relied almost exclusively on the supposed Onondaga chiefs for information regarding the gathering,” and that, on May 15 or 16, they met twice with Onondaga chiefs. See Plaintiffs' Statement of Material Facts at ¶ 28, 31.
Even assuming the truth of Plaintiffs' assertions,13 and drawing all reasonable inferences therefrom, Plaintiffs have failed to produce evidence showing that there is a genuine issue of fact with respect to whether State Defendants conspired against them as a result of class-based discriminatory animus. Accordingly, the Court grants State Defendants' motion and denies Plaintiffs' cross-motion for summary judgment with respect to Plaintiffs' § 1985(3) conspiracy claims.
E. Plaintiffs' due process claims
*9 For the reasons stated above with respect to Plaintiffs' due process claims against Defendant Walsh, the Court grants State Defendants' motion and denies Plaintiffs' cross-motion for summary judgment with respect to Plaintiffs' due process claims.
F. Plaintiffs' excessive use of force claims14
The Fourth Amendment protects persons from “unreasonable searches and seizures....” U.S. Const. amend. IV. For a court to determine whether a seizure is unreasonable because a state actor used excessive force “requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham v. Connor, 490 U.S. 386, 396 (1989) (citation omitted). Moreover, when a defendant makes an unlawful arrest, any force that he uses to do so is necessarily excessive. See Atkins v. N.Y. City, 143 F.3d 100, 103 (2d Cir.1998).
1. probable cause
Generally, “[a] warrantless arrest is unlawful absent probable cause.” See United States v. Perea, 986 F.2d 633, 642-43 (2d Cir.1993) (citation omitted). State Defendants have not asserted that they had arrest warrants for Plaintiffs. Therefore, unless State Defendants had probable cause for the arrests that they made, any force that they used in making those arrests was excessive.
“To determine whether an officer had probable cause to arrest an individual, [the Court examines] the events leading up to the arrest, and then decide[s] ‘whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to’ probable cause....” Maryland v. Pringle, 540 U.S. 366, 371 (2003) (quotation omitted). For an officer to have probable cause, his “belief of guilt must be particularized with respect to the person” arrested. See id. (citation omitted). This requirement of particularity applies even in cases of mass disruptions. Although when “[c]onfronted with a mob the police ... may deal with the crowd as a unit,” that does not mean “that one who has violated no law may be arrested for the offenses of those who have been violent or obstructive.” Wash. Mobilization Comm. v.. Cullinane, 566 F.2d 107, 120 (D.C.Cir.1977). Rather
the police may validly order violent or obstructive demonstrators to disperse or clear the streets. If any demonstrator or bystander refuses to obey such an order after fair notice and an opportunity to comply, his arrest does not violate the Constitution even though he has not previously been violent or obstructive.
Id. (footnote omitted); accord Dellums v. Powell, 566 F.2d 167, 181 n. 31 (D.C.Cir.1977) (quotation omitted); Barham v. Ramsey, 338 F.Supp.2d 48, 58 (D.D.C.2004) (citation omitted).
State Defendants bear the burden of proving that they had probable cause to arrest Plaintiffs.15 State Defendants had probable cause to arrest Plaintiffs if they had “ ‘knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime.” ’ Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir.2004) (quotation omitted). Specifically, State Defendants must show that they had such knowledge or information at the time that they arrested Plaintiffs. See Ricciuti v. N.Y.C. Transit Auth., 124 F .3d 123, 128 (2d Cir.1997) (citation omitted).
*10 If State Defendants identified a Plaintiff as being on the interstate, it would have been objectively reasonable for them to believe that they had probable cause to arrest that Plaintiff for, at least, disorderly conduct and trespass. Although State Defendants state that 20-25 protesters entered the interstate, see State Defendants' Memorandum of Law at 15, in their papers supporting their summary judgment motion they only identify Plaintiffs Robert E. Bucktooth, Jr., Holly Lyons, Malcolm Hill, Goeman, William Green III, Smith, and Kloch as persons who probably entered the interstate, see State Defendants' Statement of Material Facts at ¶ 69. Specifically, State Defendants assert that these Plaintiffs may appear from video footage to have been on the interstate or the shoulder of the road.16 See id. However, State Defendants have not asserted that they had identified17 the Plaintiffs appearing on the video prior to their arrests.
Although State Defendants do not cite to it in their papers supporting their summary judgment motion, the Court finds that there is evidence in the record suggesting that State Defendants had identified at least three Plaintiffs as having entered the interstate before arresting them.18 See Deposition of Dennis J. Blyth, sworn to October 18, 2001, at 29:11-13 (Plaintiffs Goeman and Beckman); Deposition of Anthony W. Randazzo, sworn to June 19, 2001, at 211:16-24 (Plaintiffs Goeman and Bucktooth). However, because the parties have not developed this evidence, the Court cannot, at this time, rely on this evidence to grant qualified immunity.
Regardless of which Plaintiffs entered the interstate, State Defendants argue that they had probable cause to arrest the twenty-four19 Plaintiffs whom they arrested for unlawful assembly, disorderly conduct, and trespass.
a. unlawful assembly
Section 240.10 of New York Penal Law provides that
[a] person is guilty of unlawful assembly when he assembles with four or more other persons for the purpose of engaging or preparing to engage with them in tumultuous and violent conduct likely to cause public alarm, or when, being present at an assembly which either has or develops such purpose, he remains there with intent to advance that purpose.
Unlawful assembly is a class B misdemeanor.
See N.Y. Penal Law § 240.10 (McKinney 1999). To avoid potentially unconstitutional applications of § 240.10, New York courts have construed this statute to require “that before an individual may be charged with unlawful assembly, his actions must constitute an incitement which is both directed towards and likely to produce imminent violent and tumultuous conduct.” People v. Biltsted, 150 Misc.2d 872, 879-80 (N.Y.Crim.Ct.1991); accord Shapiro v. City of N.Y., No. 94 Civ. 8135, , *3 (S.D.N.Y. Feb. 8, 1999) (quoting Biltsted ); People v. Lopez, 2 Misc.3d 843, 844-45 (N.Y.Crim.Ct.2003) (quoting Biltsted ) (other citation omitted).
*11 State Defendants argue that they had good evidence prior to the arrests of May 18, 1997, that gathering Plaintiffs intended to engage in tumultuous and violent conduct likely to cause public alarm. First, they describe incidents of violence that had occurred at other Native American protests in upstate New York before May 18, 1997. State Defendants also cite information that they received that persons had made attempts to obtain junk cars to place on the interstate. State Defendants further note that a fire had been burning near the interstate for several days and that warrior flags were being displayed at the gathering area. Finally, State Defendants contend that, once some Plaintiffs entered the interstate, all Plaintiffs at the gathering area were subject to arrest for unlawful assembly.
Although blocking interstate traffic may be a violent and tumultuous act, and those who gather together with the intent to block interstate traffic, or to aid and support those who do,20 may constitute an unlawful assembly, given Plaintiffs' denial by that they were involved in such conduct, there remains a genuine issue of fact as to whether State Defendants had probable cause to arrest Plaintiffs for unlawful assembly.
b. disorderly conduct
Section 240.20 of New York Penal Law provides, in pertinent part, that
[a] person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof:
1. He engages in fighting or in violent, tumultuous or threatening behavior; or
5. He obstructs vehicular or pedestrian traffic; or
6. He congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse ...
Disorderly conduct is a violation.
See N.Y. Penal Law § 240.20 (McKinney 1999). State Defendants argue that Plaintiffs who entered the interstate violated subdivisions one and five of § 240.20 and that Plaintiffs who did not enter the interstate also violated these subdivisions by intentionally aiding those who did. However, as indicated, there is a genuine issue of fact with respect to which Plaintiffs entered the interstate and, in view of Plaintiffs' denials, it is not clear from the record whether the non-entering Plaintiffs engaged in the conduct that New York Penal Law § 20.00 makes criminal.
State Defendants also argue that Plaintiffs violated subdivision six of § 240.20 when they did not disperse after State Defendants ordered them to do so. However, subdivision six only applies to those who congregate “in a public place.”21 Plaintiffs contend that they gathered on Andrew Jones' “private property.” However, the evidence presently before the Court is not clear as to whether Plaintiffs were gathered on private property or on the highway easement. Therefore, there remains an issue of fact with respect to whether Plaintiffs congregated in a public place.
*12 Furthermore, although State Defendants assert that they repeatedly ordered Plaintiffs to disperse and did not arrest those who complied with the order, Plaintiffs assert that State Defendants did not give any orders to disperse. See State Defendants' Statement of Material Facts at ¶¶ 74-75; Plaintiffs' Statement of Material Facts at ¶ 132.22 Therefore, there is also a genuine issue of fact as to whether State Defendants gave Plaintiffs a lawful order to disperse.
c. trespass
Section 140.05 of New York Penal Law provides that “[a] person is guilty of trespass when he knowingly enters or remains unlawfully in or upon premises. Trespass is a violation.” See N.Y. Penal Law § 140.05 (McKinney 1998). State Defendants contend that Plaintiffs who entered the interstate were guilty of trespass and that Plaintiffs who did not enter the interstate “acted in concert with them by remaining at the demonstration” and were, thus, also guilty of trespass. As the Court has already noted, there is a genuine issue with respect to which Plaintiffs entered the road, and the record is unclear whether Plaintiffs engaged in the conduct that New York Penal Law § 20.00, the aiding-and-abetting statute, makes criminal. Therefore, the Court concludes that a genuine issue of fact remains with respect to whether State Defendants had probable cause to arrest Plaintiffs for trespass as well.
2. qualified immunity
Even if they did not have probable cause to arrest Plaintiffs, State Defendants are still entitled to qualified immunity “ ‘if either (a) it was objectively reasonable for [them] to believe that probable cause existed, or (b) officers of reasonable competence could disagree on whether the probable cause test was met.” ’ Escalera, 361 F.3d at 743 (quotation and other citations omitted).
However, as discussed, there are numerous issues of fact which prevent the Court from concluding, as a matter of law, that it was reasonable for State Defendants to believe that they had probable cause with respect to the charges that they brought against Plaintiffs.
An officer is entitled to qualified immunity only when his actions are reasonable. The reasonableness of the force used to make an arrest depends, in the first instance, on whether it was reasonable for the officer to believe that probable cause existed to make the arrest. Since the Court cannot conclude that it was reasonable for State Defendants to believe that they had probable cause with respect to the charges that they brought against Plaintiffs, it must also conclude that the evidence is insufficient to determine whether State Defendants used reasonable force in arresting Plaintiffs.
Accordingly, the Court denies State Defendants' motion for summary judgment with respect to Plaintiffs' excessive use of force claims. Additionally, because Plaintiffs have failed to show that there is no genuine issue with respect to the reasonableness of State Defendants' actions, the Court denies their cross-motion to preclude State Defendants from asserting the defense of qualified immunity with respect to Plaintiffs' excessive use of force claims.
IV. CONCLUSION
*13 After carefully considering the file in this matter, the parties' submissions, and the applicable law, and for the reasons stated herein, the Court hereby
ORDERS that State Defendants' motion for summary judgment with respect to Plaintiffs Marissa Horton's and Verna Montour's excessive use of force claims is GRANTED; and the Court further
ORDERS that Plaintiffs' cross-motion for summary judgment on the issue of qualified immunity with respect to Plaintiffs Marissa Horton's and Verna Montour's excessive use of force claims is DENIED; and the Court further
ORDERS that Defendant Walsh's motion for summary judgment with respect to all of Plaintiffs' claims is GRANTED; and the Court further
ORDERS that summary judgment is GRANTED sua sponte in favor of Defendants County of Onondaga and Onondaga County Sheriff's Department with respect to all of Plaintiffs' claims; and the Court further
ORDERS that Defendant McMahon's motion for summary judgment with respect to all of Plaintiffs' claims is GRANTED; and the Court further
ORDERS that State Defendants' motion for summary judgment on the basis of qualified immunity with respect to Plaintiffs' First Amendment claims is DENIED; and the Court further
ORDERS that Plaintiffs' cross-motion for summary judgment on the issue of qualified immunity with respect to their remaining First Amendment claims is DENIED; and the Court further
ORDERS that State Defendants' motion for summary judgment on the basis of qualified immunity with respect to Plaintiffs' § 1983 conspiracy claims is GRANTED; and the Court further
ORDERS that Plaintiffs' cross-motion for summary judgment on the issue of qualified immunity with respect to their remaining § 1983 conspiracy claims is DENIED; and the Court further
ORDERS that State Defendants' motion for summary judgment on the basis of qualified immunity with respect to Plaintiffs' § 1985(3) conspiracy claims is GRANTED; and the Court further
ORDERS that Plaintiffs' cross-motion for summary judgment on the issue of qualified immunity with respect to their remaining § 1985(3) conspiracy claims is DENIED; and the Court further
ORDERS that State Defendants' motion for summary judgment on the basis of qualified immunity with respect to Plaintiffs' due process claims is GRANTED; and the Court further
ORDERS that Plaintiffs' cross-motion for summary judgment on the issue of qualified immunity with respect to their remaining due process claims is DENIED; and the Court further
ORDERS that State Defendants' motion for summary judgment on the basis of qualified immunity with respect to remaining Plaintiffs' excessive use of force claims is DENIED; and the Court further
ORDERS that Plaintiffs' cross-motion for summary judgment on the issue of qualified immunity with respect to their remaining excessive use of force claims is DENIED; and the Court further
ORDERS the parties to contact Magistrate Judge Lowe's chambers within ten (10) days of the date of this Order to set up a conference to schedule such further discovery as is necessary and to establish a schedule for the filing of dispositive motions.23
*14 IT IS SO ORDERED.
All Citations
Not Reported in F.Supp.2d,Footnotes
The Court notes that, although Alfred Logan, Jr. appears as a Plaintiff in several claims for relief, he does not appear in the caption of Plaintiffs' Second Amended Complaint. The Court assumes that Alfred Logan, Jr. is the same person as Plaintiff Gerald Logan, Jr.
The Court also notes that, although Mark Bender and Peter Obrist appear as Defendants in Plaintiffs' first claim for relief, they do not appear in the caption of Plaintiffs' Second Amended Complaint. Accordingly, Mark Bender and Peter Obrist are not Defendants in this action.
The Court further notes that, although Plaintiffs Cheryl Bucktooth and William Green III appear in Plaintiffs' first claim for relief asserting excessive use of force, the Court dismissed with prejudice their excessive use of force claims on August 23, 1999. See Dkt. No. 146 at 17.
The Court finally notes that, although Plaintiffs Marissa Horton and Verna Montour appear in Plaintiffs' first claim for relief asserting excessive use of force, they have not specifically identified any of the Defendants named in the first claim for relief as having been involved in their arrests. Accordingly, the Court grants State Defendants' motion and denies Plaintiffs' cross-motion for summary judgment with respect to Plaintiffs Marissa Horton's and Verna Montour's excessive use of force claims.
State Defendants are all Defendants other than Defendants Walsh, McMahon, County of Onondaga, and Onondaga County Sheriff's Department.
Plaintiffs assert all their causes of action against Defendant Walsh except that for excessive use of force.
Plaintiffs request leave to amend their second claim for relief and ¶ 586 of their second amended complaint. The Court has twice given Plaintiffs leave to amend their complaint. See Dkt. Nos. 62 and 146. Additionally, Plaintiffs have failed to submit a copy of their proposed amended complaint as this District's rules require. See L.R. 7.1(a)(4). Finally, and especially in light of the length of time that the parties have already expended litigating this case, Plaintiffs have failed to show why justice requires the Court to give them leave to amend their second amended complaint. See Fed.R.Civ.P. 15(a). Accordingly, the Court denies Plaintiffs' request to amend their second amended complaint.
As an initial matter, the Court notes that, although the parties' submissions imply that Plaintiffs' First Amendment and § 1983 conspiracy claims are co-extensive, they are not. Either claim could exist without the other.
Although Defendants County of Onondaga and Onondaga County Sheriff's Department have not moved for summary judgment, Defendant Walsh's motion gave Plaintiffs notice that they needed to come forward with all of their evidence related to the conduct of County Defendants. In their Second Amended Complaint, Plaintiffs allege that
Defendants Onondaga County and Onondaga County Sheriff's Department are liable as municipal entities by virtue of the actions of defendant Sheriff Kevin Walsh and Major Paul Zemens, policy makers, in (i) planning and implementing the “Indian detail” as well as the May 18, 1997 police action, (ii) taking part in planning sessions with defendant Major James Parmley and Captain Beach, (iii) instructing Major Paul Zemens to attend planning sessions for the “Indian detail” as a Sheriff's Department representative, (iv) assisting the State Police by authorizing the use of Sheriff Department personnel and equipment in order to arrest and detain Plaintiffs, (v) failing to take steps to ensure that the Sheriff's Department personnel assigned to the Troop D “Indian detail” were adequately or accurately informed as to the nature of the gathering near I-81, (v)[sic] reporting, wrongly, to State Police Major James Parmley that none of the arrested Plaintiffs were injured when, in actuality, several were injured and had requested, and been denied, medical attention, and (vi)[sic] recklessly causing the arrested Plaintiffs not to receive the medical attention they requested.
See Second Amended Complaint at ¶ 215. As explained above in its analysis of Plaintiffs' claims against Defendant Walsh, the Court has already considered the conduct that Plaintiffs allege against County Defendants and concluded that it does not provide a basis for liability. Accordingly, the Court sua sponte grants summary judgment to Defendants County of Onondaga and Onondaga County Sheriff's Department with respect to all of Plaintiffs' claims.
Plaintiffs assert all their cause of actions of action against Defendant McMahon except those for excessive use of force and deliberate indifference to medical needs.
The following claims remain:
(1) All Plaintiffs' federal causes of action against all State Defendants for denial of the freedoms of speech, assembly, and religion in violation of the First and Fourteenth Amendments pursuant to § 1983; conspiracy to deny the freedom of speech, assembly, and religion pursuant to § 1983; and conspiracy to deny equal access to the freedom of speech, assembly, and religion pursuant to § 1985(3);
(2) All Plaintiffs' state causes of action against all State Defendants for intentional infliction of emotional distress and negligent infliction of emotional distress;
(3) Plaintiffs Andrew Jones', Holly Lyon's, Robert E. Bucktooth, Jr.'s, Cheryl Bucktooth's, Kenneth Kappelmeier's, Goeman's, Malcolm Hill's, Smith's, William Green III's, Henhawk's, Gerald Logan, Jr.'s, Beckman's, Martha Skye's, Kloch's, Peters', Sesily Snyder's, Potter's, Samantha Thompson's, Verna Montour's, Neff's, and Marissa Horton's federal causes of action against all State Defendants for denial of due process in violation of the Fifth and Fourteenth Amendments and pursuant to § 1983 and state causes of action against all State Defendants for false arrest and false imprisonment, assault and battery, and malicious prosecution; and
(4) Plaintiffs Andrew Jones', Holly Lyon's, Robert E. Bucktooth, Jr.'s, Kenneth Kappelmeier's, Malcolm Hill's, Smith's, Henhawk's, Gerald Logan, Jr.'s, Beckman's, Kloch's, and Peters' federal causes of action against Defendants Slade, Jecko, Clark, Barlow, Zubrzycko, Miner, Darstein, Buttenschon, Chris A. Smith, Brown, Schleiser, Ashbarry, Leadley, Williams, Gloria Wood, Bonner, Burgos, Dougherty, Dye, Free, Greenwood, Kealy, Little, Morse, Murray, Randazzo, Riley, and Frederick A. Smith for excessive use of force in violation of the Fourth and Fourteenth Amendments pursuant to § 1983.
As the Court has already noted, it is limiting its consideration of State Defendants' motion for summary judgment to the issue of qualified immunity. Since state law governs a defendant's entitlement to qualified immunity with respect to state-law claims, see Napolitano v. Flynn, 949 F.2d 617, 621 (2d Cir.1991) (citation omitted), and current New York law does not provide police defendants with a qualified immunity defense with respect to state-law claims, the Court may only consider the issue of qualified immunity with regard to Plaintiffs' federal-law claims.
The Court will analyze the claims that all Plaintiffs assert against all State Defendants in this section and Plaintiffs' excessive use of force and due process claims in the subsequent sections.
The Court notes that the present record suggests that several State Defendants may not have been personally involved in the alleged violations of Plaintiffs' First Amendment rights. However, because the parties have not explicitly developed the record on this point, the Court will not consider the personal involvement of State Defendants at this juncture.
Additionally, Plaintiffs' Statement of Material Facts fails to point to any evidence that would support these claims.
Plaintiffs have not provided, and the Court is unaware of, any legal authority to support the proposition that state action that discriminates on the basis of media membership violates equal protection.
Plaintiffs did present a couple of pieces of evidence that might be considered in relevant to the issue of animus. Plaintiff Hill alleges that he heard a State Defendant “trooper laugh and say ‘this is quite different from Buffalo.” ’ See Plaintiffs' Statement of Material Facts at ¶ 340. Plaintiff Green states that he heard a State Defendant say that the events of May 18, 1997, looked like “a western film.” See Deposition of William Green, III, taken on July 26, 2001, at 98:21-25, 99:2-5. Neither of these Plaintiffs, however, identifies by name the speakers of these statements, indicates whether the speakers were supervisors, or states what role, if any, the speakers played in the decisions that led to the actions that State Defendants took with respect to Plaintiffs. Therefore, the Court concludes that such statements, even if true, are insufficient to support a claim that State Defendants conspired against Plaintiffs because they were Native Americans.
The Court notes that Plaintiffs have not asserted Fourth Amendment false arrest claims against State Defendants.
It appears that the Second Circuit has not addressed who bears the burden of proving the presence or absence of probable cause in an excessive use of force claim. However, the Court finds that an excessive use of force claim is analogous to a false arrest claim, upon which a defendant bears the burden of proving the presence of probable cause. See Curry v. City of Syracuse, 316 F.3d 324, 335 (2d Cir.2003) (quotation omitted). Furthermore, a party asserting the affirmative defense of qualified immunity has the burden of proving that his actions were objectively reasonable. See Varrone v. Bilotti, 123 F.3d 75, 78 (2d Cir.1997) (citation omitted).
Plaintiffs deny State Defendants' asserted identifications and contend that State Defendants had not identified these Plaintiffs as having been on the road before arresting them. See Plaintiffs' Response to State Defendants' Statement of Material Facts at ¶ 69.
Identification in this context does not require that State Defendants know the individual Plaintiffs' names. Rather, identification requires that State Defendants have a reasonable belief that the person they arrested is the same person whom they saw engage in unlawful conduct.
This evidence also suggests that State Defendants might be able to identify by sight those Plaintiffs whom they saw on the interstate before the arrests.
The Court notes that not every Plaintiff whom State Defendants arrested has asserted an excessive use of force claim.
Section 20.00 of New York Penal Law provides that “[w]hen one person engages in conduct which constitutes an offense, another person is criminally liable for such conduct when, acting with the mental culpability required for the commission thereof, he solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct.” N.Y. Penal Law § 20.00 (McKinney 1965).
Section 240.00 of New York Penal Law defines a “public place” as
a place to which the public or a substantial group of persons has access, and includes, but it not limited to, highways, transportation facilities, schools, places of amusement, parks, playgrounds, and hallways, lobbies and other portions of apartment houses and hotels not constituting rooms or apartments designed for actual residence.
State Defendants have specifically identified Plaintiffs Andrew Jones, Robert E. Bucktooth, Jr., Smith, Henhawk, Gerald Logan, Jr., and Kakwirakeron as persons who failed to comply with orders to disperse. See State Defendants' Statement of Material Facts at ¶¶ 77, 89, 109, 115, 121, and 146. Plaintiffs deny State Defendants' assertions. See Plaintiffs' Response to State Defendants' Statement of Material Facts at ¶¶ 77, 89, 109, 115, 121, and 146.
Remaining in this action are (1) all Plaintiffs' First Amendment claims pursuant to § 1983 against all State Defendants; (2) Plaintiffs Andrew Jones', Holly Lyon's, Robert E. Bucktooth, Jr.'s, Kenneth Kappelmeier's, Malcolm Hill's, Smith's, Henhawk's, Gerald Logan, Jr.'s, Beckman's, Kloch's, and Peters' Fourth and Fourteenth Amendment excessive use of force claims pursuant to § 1983 against Defendants Slade, Jecko, Clark, Barlow, Zubrzycko, Miner, Darstein, Buttenschon, Chris A. Smith, Brown, Schleiser, Ashbarry, Leadley, Williams, Gloria Wood, Bonner, Burgos, Dougherty, Dye, Free, Greenwood, Kealy, Little, Morse, Murray, Randazzo, Riley, and Frederick A. Smith; and (3) Plaintiffs' state law claims of false arrest and imprisonment, assault and battery, malicious prosecution, intentional infliction of emotional distress, and negligent infliction of emotional distress against State Defendants.
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