Opinion
5:98-CV-538
October 10, 2003
RICHARD MARRJS, ESQ., MARPJS BARTHOLOMAE, Syracuse, NY, for Plaintiff
TERRY BRIGHT, ESQ., SHEILA M. FINN, ESQ., NANCY LARSON, ESQ., Syracuse, N.Y.
MEMORANDUM-DECISION AND ORDER
Introduction
In December 2002, the court conducted a non-jury trial in this case. Fed.R.Civ.P. 52 states that in a non-jury case a court must "find the facts specially and state separately its conclusions of law thereon[.]" Fed.R.Civ.P. 52(a). By the same token, that Rule does " not require either punctilious detail or slavish tracing of the claims issue by issue and witness by witness." Fair Housing in Huntington Committee Inc. v. Town of Huntington. New York, 316 F.3d 357, 364 (2d Cir. 2003) (emphasis added) (internal quotation marks and citations omitted). To avoid that tedious and unnecessary task, and because of the substantial factual overlap and common legal theories, first the court will provide an overview of the facts. It will then expand upon those facts as necessary to decide the merits of the parties' respective arguments.
Since its commencement on April 1, 1998, this case has been pared down significantly. Earlier in this litigation the parties entered into a stipulation agreeing to "discontinue with prejudice" the claims against the defendant police department employees "in their individual capacities[.]" Limited Stipulation of Discontinuance Order ("Stip.") at 2 (emphasis added). The parties further stipulated that the individual defendants are being sued "solely in their official capacities as Captains, Sergeants and Officers of the Syracuse City Police Department [.]" Id. (emphasis added). Seven individual plaintiffs and one defendant, the City of Syracuse ("the City") were remaining. Now there are six plaintiffs because at trial the court granted defendants' motion to dismiss plaintiff Amy Theel's claims for failure to appear and pursue same. See Transcript ("Tr.") (Dec. 13, 2002) at 519.
Various pre-trial rulings left four causes of action based upon 42 U.S.C. § 1983: (1) alleged violations of plaintiffs' First Amendment rights; (2) alleged violations of their Fourth Amendment rights; (3) retaliation; and (4) conspiracy. Additionally, three state law causes of action remain: (1) false arrest; (2) false imprisonment; and (3) malicious prosecution.
Defendants contend that there is also a state law assault claim still extant. See Defendants Findings of Fact and Conclusions of Law ("Def. Memo.") at 3; 32; and 32, n. 11. Defendants are overlooking the fact that implicit in the court's pre-trial rulings was that that assault claim did not survive defendants' pre-trial requests to preclude.
Findings of Fact Conclusions of Law
At the time of the demonstrations, arrests and other incidents which are the subject of this lawsuit, plaintiffs were avowed members of the Animal Defense League of Central New York ("ADL"). The ADL is an organization which espouses animal rights and, among other things, is philosophically opposed to such practices as the killing of animals for use in clothing. To make its views known, sometimes during ADL demonstrations, its members would leaflet, chant and/or carry signs. ADL demonstrations primarily were in the vicinity of Georgio's Fur Salon, located in the 300 block of South Salina Street. On occasion the ADL would also demonstrate near Bon Wit Teller, a department store which formerly had a location in Carousel Center. Both retail outlets are located in Syracuse, New York.Four ADL demonstrations, which occurred on February 17th and 21st 1996, November 16, 1996, and January 2, 1997, are the focus of this lawsuit. Five of the six plaintiffs were arrested in connection with those demonstrations. Plaintiff Pease was among the "approximately 30 animal rights activists in front of Georgio's Furs" on February 17, 1996 and he was arrested for unlawful assembly. See PL exh. 6. Several days later, plaintiff Lynn was arrested for trespass at the Public Safety Building ("PSB") while attempting to lodge a complaint for alleged police misconduct arising out of a demonstration in front of Georgio's earlier that day. See PL exh. at 1. Later that year, in November 1996, plaintiff Dyne was arrested for harassment, also while protesting near Georgio's.See PL exh. at 3.
During the fourth demonstration, on January 2, 1997, a group of protestors marched from the Syracuse Regional Market downtown to Georgio's. Plaintiffs Vlasak and Weissman were arrested that day for disorderly conduct and obstruction of governmental administration in the second degree. See Pl. exhs. 2 and 7. Plaintiff Ferdin was not arrested; her purpose that day was to escort the protestors and videotape the activities. Plaintiffs' criminal charges were resolved in a variety of ways favorable to them. None of the arrested plaintiffs were convicted. Sometime in 1997 the ADL ceased its protests in the Syracuse area.
I. 42 U.S.C. § 1983 Liability A. Official Capacity
"Suits against government agents in their official capacities do not differ in substance from suits against municipalities[.]" Hamilton v. City of New Haven, 213 F. Supp.2d 125, 132 (D.Conn. 2002) (emphasis added) (citing, inter alia, Bender v. Williamsport Area School District, 475 U.S. 534, 544, 106 S.Ct. 1326 (1986) ("[A]n official-capacity suit is, in all respects other than name, to be treated as a suit against the entity.")) To illustrate, in Wallikas v. Harder, 67 F. Supp.2d 82 (N.D.N.Y. 1999), the court dismissed the official capacity claims against the two defendant employees of the county sheriff department, reasoning that those claims were "redundant when the municipality [wa]s also named as a defendant." See id. at 83 (citations omitted). Plaintiffs were thus left to pursue their section 1983 claims against the county only. See also Hamilton, 213 F. Supp.2d at 132 (granting summary judgment in favor of defendant police officers in their official capacities where plaintiff "offered no evidence" that defendants' actions were taken pursuant to a municipal policy or custom).
The Wallikas rationale applies with equal force here. The only section 1983 claims against the individual defendants are in their official capacities. Accordingly, the court will focus its analysis herein on the City.
B. Municipal Liability 1. Custom or Policy
In the seminal case of Monell v. Dep't of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018 (1978), the Supreme Court rejected the concept of respondeat superior as a basis for holding a municipality liable under 42 U.S.C. § 1983. Instead, "[a]s subsequently reaffirmed and explained by the Supreme Court, municipalities . . . may only be held liable when the city itself deprives an individual of a constitutional right. Thus, in order for an individual deprived of a constitutional right to have recourse against a municipality under section 1983, she must show that she was harmed by a municipal `policy' or'custom.'" Davis v. City of New York, 228 F. Supp.2d 327, 337 (S.D.N.Y. 2002) (emphasis added) (citing, inter alia, Monell, 436 U.S. at 690-91, 98 S.Ct. 2018),aff'd without written opinion, 2003 WL 22173046 (2d Cir. Sept. 22, 2003). "This `official-policy' requirement is intended to distinguish acts of the municipality from acts of its employees, so that municipal liability is limited to conduct for which the municipality is actually responsible." Sulkowska v. City of New York, 129 F. Supp.2d 274, 297 (S.D.N.Y. 2001) (citations omitted). In other words, a plaintiff must show "that the municipality itself is at fault." Id. (emphasis added) (citations omitted).
There are several ways of proving a custom or policy for purposes of establishing municipal liability under 42 U.S.C. § 1983. Municipal liability may attach through: "(1) a formal policy which is officially endorsed by the municipality, . . .; (2) actions taken or decisions made by government officials responsible for establishing municipal policies which caused the alleged violation of the [plaintiffs] civil rights, . . .; (3) a practice so persistent and widespread that it constitutes a `custom or usage' and implies the constructive notice knowledge of policy-making officials, . . .; or (4) a failure by official policy makers to properly train or supervise subordinates to such an extent that it amounts to deliberate indifference to the rights of those with whom municipal employees will come into contact, . . . [.]" M.H. v. Bristol Bd. of Educ., 169 F. Supp.2d 21, 34 (D.Conn. 2001) (internal quotations marks and citations omitted).
On the other hand, evidence of a single incident of allegedly wrongful conduct is not sufficient to raise an inference of such a custom or policy. See Dwares v. City of New York, 985 F.2d 94, 100 (2d Cir. 1993). As Justice Brennan soundly reasoned in Oklahoma City v. Tuttle, 417 U.S. 808, 105 S.Ct. 2427 (1985) (concurring in part and concurring in the judgment), "[t]o infer the existence of a city policy from the isolated misconduct of a single, low-level officer, and then to hold the city liable on the basis of that policy, would amount to permitting precisely the theory of strict respondeat superior liability rejected in Monell," 417 at 831. Therefore, a plaintiff seeking to hold a municipality liable under section 1983 "is required to plead and prove" among other things, the existence of an "official policy or custom[.]" McKeon v. Daley, 101 F. Supp.2d 79, 92 (N.D.N.Y. 2000) (emphasis added) (internal quotation marks and citations omitted), aff'd without written opinion, 8 Fed. Appx. 138 (2d Cir. 2001). This means that in the context of section 1983 a plaintiff "must introduce affirmative, factual evidence to support allegations of an unconstitutional municipal custom or policy." Id. (emphasis added) (citing San Filippo v. United States Trust Co., 737 F.2d 246, 256 (2d Cir. 1984)).
The court is fully cognizant that McKeon involved a summary judgment motion, and plaintiffs herein previously survived such a motion. That distinction does not lessen plaintiffs' burden of proof in the present case though. At trial plaintiffs still had the burden of coming forth with "affirmative factual evidence" to prove the existence of a municipal policy or custom by a preponderance of the evidence. See Herman MacLean v. Huddleston, 459 U.S. 387, 388, 103 S.Ct. 683, 690 (1983) (footnote omitted) ("In a typical civil suit for money damages, plaintiffs must prove their case by a preponderance of the evidence.") As it must, the court will "conduct a separate inquiry" into the custom or policy issue, see Davis, 228 F. Supp.2d at 336, examining the trial record to determine if plaintiffs have met their burden of proof in this regard.
The court hastens to add that although it previously held that factual issues precluded granting summary judgment in the City's favor, that "does not necessarily mean that a verdict as a matter of law after the trial would be unwarranted." See DeCarlo v. Fry, 141 F.2d 56, 61 n. 1 (2d Cir. 1998). As the DeCarlo Court soundly reasoned, "[t]he way the evidence plays out at trial may sufficiently alter the contours of the liability issue such that . . . [there is] only one conclusion." Id. As soon will become evident, that is precisely what happened here — the trial evidence "played out" differently than plaintiffs suggested in opposing defendants' summary judgment motion.
The only theory of municipal liability upon which plaintiffs rely is the third scenario enumerated above, i.e. the City had an "official policy or custom" of "conduct[ing] surveillance" of plaintiffs, and "monitor [ing] the activities of the [ADL] and its various members, including Plaintiffs." See Proposed Findings of Fact and Conclusions of Law ("Pl. Memo.") at 1, ¶ 2. That alleged custom or policy, according to plaintiffs, resulted in a violation of their "First Amendment right to speak freely and assemble freely" on several occasions when they had to "discontinue" their protests near Georgio's. Id.; and 2, ¶¶ 6 and 7. Plaintiffs also contend that their Fourth Amendment right to be free from unreasonable searches and seizures was violated when they were arrested "while participating in or after participating in demonstrations . . . in the area of Georgio's Fur Store[.]" Id. at 2, ¶ 8.
Plaintiffs blur the distinction between custom and policy. Their post-trial memorandum, as well as the trial record, clearly shows that plaintiffs are attempting to prove only that the City had a custom, not a policy. It is necessary to distinguish between the two because the proof required to establish municipal liability differs depending upon whether a plaintiff is alleging a custom or a policy.
Unlike a policy, a custom "need not receive formal approval by the appropriate decision-maker[.]" See Davis, 228 F. Supp.2d at 337 (emphasis added). However, "`an act performed pursuant to a 'custom' that has not been formally approved by an appropriate decisionmaker may fairly subject a municipality to liability on the theory that the relevant practice is so widespread as to have the force of law.'" Id (emphasis added) (quotingBoard of Comm'rs v. Brown, 520 U.S. 397, 404 (1997)); see also Turtle, 471 U.S. at 823-24. To trigger Monell liability under this theory, "discriminatory practices of city officials must be so permanent and well settled as to constitute a custom or usage with the force of law[.]"McDonald v. Board of Education, 01 Civ. 1991 NRB, 2003 WL 21782685, at *5 (S.D.N.Y. July 31, 2003) (emphasis added) (internal quotation marks and citations omitted). Once it is shown that a given "practice is so widespread as to have the force of law[,]" a plaintiff also must show "`that the policymaking officials of the municipality can be said to have either actual or constructive knowledge of it yet did nothing to end the practice.'" Davis, 228 F. Supp.2d at 337 (emphasis added) (quoting Silva v. Worden, 130 F.3d 26, 31 (1st Cir. 1997)) (other citation omitted).
Relying heavily upon the testimony of Sergeant Galvin, whom plaintiffs called as a witness in their case in chief, they argue that the record shows a custom, policy or usage of which the City's official policymakers had constructive knowledge. An 18 year veteran of the City Police Department ("the Department"), since 1990 Sergeant Galvin has been with the Investigations Bureau in the Special Investigations Division. See Transcript ("Tr.") (Dec. 12, 2002) at 298-99. That division is composed of "primarily . . . plain clothes detectives[,]" where the investigations "require a bit more long-term approach[,]" such as drug trafficking, gambling and "monitor[ing] gang activity[.]" Id at 299 and 319. Galvin did not initiate the ADL investigation on his own; he was given this assignment by a "superior officer[.]" Id at 318.
As part of that investigation, Galvin was "present at many [ADL] demonstrations" at Georgio's. Id at 302. He does not "believe" that he personally arrested any of the plaintiffs, however, and there was no contrary proof. Id. at 302. Galvin did observe the demonstrations though, talking to the participants and generally "tak[ing] note of what was occurring."Id. He was also present at some non-protest ADL events. Sometimes Ray Herrick, an Onondaga County Sheriff Department employee, would accompany Galvin. In this County it is not uncommon for different law enforcement agencies to work jointly on investigations such as this.
In any event, the record is clear that the relationship which Galvin and Herrick (whom the ADL referred to as Bob and Ray) had with the ADL, and especially the plaintiffs, was cordial. To illustrate, the ADL was aware that Bob and Ray were present at various ADL events because they never kept their presence a secret from the ADL. See Tr. (Dec. 10, 2002) at 29. Those affiliated with the ADL would acknowledge the officers' presence and vice versa, even going so far as to wave to each other back and forth. See id. at 30. Others, such as plaintiff Weissman, corroborated Lynn's testimony regarding the basically friendly nature of plaintiffs' encounters with Galvin. Galvin's perception was much the same. When asked whether "at times there was . . . almost humorous by-play between the two sides [the officers and the ADL]," Galvin candidly responded he "found that to be true[,]" noting that at one time someone with ADL even offered him some food. See Tr. (12/12/02) at 305-06.
Plaintiffs maintain that Galvin's conduct, as just outlined, "establishe[s]" that: (1) the City's police department "assigned [him] . . . to monitor the activities of the [ADL] and its various members, including Plaintiffs[;]" (2) as part of those monitoring activities, Galvin "maintained dossiers on the Plaintiffs [;]" (3) he and other City police officers "conducted surveillance of the Plaintiffs and of their demonstrations and activities[;]" and (4) "Galvin attended functions unrelated to protest demonstrations including picnics and seminars at which various Plaintiffs were present." PL Memo, at 1, ¶ 2. Taken together, plaintiffs assert that through its police officers the City "arbitrarily and unilaterally discontinue[d] [plaintiffs'] protests . . . and thereafter . . . arrest[ed] Plaintiffs if they refused to discontinue" what they view as "lawful protest[s]." Id. at 3, ¶ 13. Although not stated in precisely these terms, plaintiffs contend that Galvin's actions prove that the City had a widespread practice amounting to a custom. Further, plaintiffs contend that the "publicity surrounding the[ir] . . . protests was so wide spread that it can not be said that the highest officials of the City., were not aware of the protest and the actions of Plaintiffs and members of the [ADL]." Id. at 2 ¶ 6.
To the contrary, the City retorts that "[p]laintiffs did not establish a municipal custom, practice or policy of the City . . . to abridge plaintiffs' First Amendment right to free speech or any other constitutional right[.]" Def. Memo, at 24 (emphasis added) (footnote omitted). The City does not elaborate on that particular argument, however. Instead, it analyzes the other theories of municipal liability which plaintiffs are not pursuing. The City also devotes much of its analysis to causation, reasoning that plaintiffs did not prove that the City's actions deprived them of their constitutional rights because "probable cause existed for each plaintiffs arrest." See id A plaintiff "cannot sustain a claim against a municipality absent proof of a municipal policy [or custom,]" however.McKeon, 101 F. Supp.2d at 92 (internal quotation marks and citation omitted). Thus, because the only theory of municipal liability plaintiffs are invoking is that the City had a custom of violating their constitutional rights, the court will first consider that issue. If plaintiffs meet that burden of proof, the court will go on to consider causation.
In arguing that the City's activities, as outlined above, constitute a "custom" within the meaning of 42 U.S.C. § 1983, plaintiffs rely upon three cases: Jett v. Dallas Independent School District, 491 U.S. 701 (1989); Pembaur v. City of Cincinnati, 475 U.S. 469 (1986); and Hamilton v. Rodgers, 791 F.2d 439 (5th Cir. 1986). See Pl. Memo, at 1, ¶ 6. None of those cases support a finding of liability against the City in this action, however. Pembaur is inapposite for two reasons. First, the plaintiff there alleged a municipal policy as opposed to a custom. Thus, the Pembaur Court focused upon whether there was sufficient proof to establish that the prosecutor was acting as a final decision maker for the county. Relying upon an Ohio statute, as well as "standard office procedure," the Court found that when he instructed county sheriffs to forcibly enter plaintiffs medical clinic, the county prosecutor was acting as a final decision maker for the county. See Pembaur, 475 U.S. at 485, 106 S.Ct. at 1301. Thus, the Court remanded for further proceedings, concluding that "the county may be liable under § 1983." Id. (emphasis added).Pembaur has no bearing on a case such as this though where the issue, as plaintiffs themselves frame it, is the existence of a municipal "custom."
Similarly, the issue in Jett was whether the actions complained of were done in accordance with an official "policy" and, if so, whether the officials could be deemed policymakers for the defendant school district. Again however, plaintiffs in this case are not advancing a theory of municipal liability based upon a formal policy. Throughout this litigation the sole basis for plaintiffs' efforts to impose section 1983 liability on the City has been that supposedly it had a custom which resulted in a violation of their constitutional rights. Given that difference in legal theories of liability, neither Pembaur nor Jett are controlling here.
As they did in opposing the City's summary judgment motion, plaintiffs also rely upon the Fifth Circuit's decision in Hamilton to support their custom argument. In contrast to Pembaur and Jett, the plaintiff inHamilton did allege that the City acted pursuant to a custom which supposedly violated his constitutional rights. Significantly though, the Fifth Circuit overruled the district court's finding of a custom based upon the allegedly persistent, widespread practice of encouraging racial discrimination in the city's fire department. In so doing the Court of Appeals reasoned that the dozen racial incidents recounted in the two years preceding plaintiffs suspension "were too few to constitute a persistent, widespread practice . . . so common and well-settled as to constitute a custom[.]'"See 791 F.2d at 443 (emphasis added) (internal quotation marks omitted). The Hamilton Court further reasoned "no continual pattern . . . arose that would warrant the imputation of constructive knowledge to high ranking officers of the Fire Department." Id. (emphasis added). Finally, the Court implicitly found no constructive notice explaining that "[w]hile evidence suggests that these officers [had] heard of occasional incidents, there was no showing that they knew, or had reason to know, of a persistent, nagging problem of racism." Id. (footnote omitted).
In terms of the number of incidents, the time frame in which they occurred, and the nature of same, the evidence to support a finding of municipal liability in this case is even less than in Hamilton. In the course of less than a year the record shows that there were only four protests in the vicinity of Georgio's, where supposedly plaintiffs' constitutional rights were violated. Nothing in the record shows that demonstrations of this type were permanent or represented a continual pattern. Certainly these few incidents do not rise to the level of "a longstanding practice or custom which constitutes the `standard operating procedure' of the [City,]'" such that "[a] municipal policymaker may be found to have caused a subordinate officials' conduct[.]" See Jeffes v. Barnes, 208 F.3d 49, 61 (2d Cir. 2000) (quoting Jett, 419 U.S. at 737, 109 S.Ct. 2702). In the present action, there was no evidence that demonstrators for other causes were arrested under similar circumstances.
Almost by nature, to show a municipal custom a plaintiff will have to rely upon circumstantial evidence and the inferences which can be drawn therefrom. Here, plaintiffs did not prove by a preponderance of the evidence, circumstantial or otherwise, that the City had a "longstanding practice or custom" upon which it could be held liable under 42 U.S.C. § 1983. Plaintiffs have not shown any of the attributes typically associated with a municipal custom, such as permanency, a "pervasive, widespread practice," a "standard operating procedure," or a "continual pattern." Thus the court is unable to conclude that a municipal custom existed here. Mere invocation of legal buzzwords such as "widespread custom" or "policy" cannot form a basis for municipal liability in a case such as this; but in this case plaintiffs are left with only those words.
It is clear that plaintiffs are relying almost exclusively upon the action of Sergeant Galvin, a lower echelon City employee, to show a municipal custom. That reliance is misplaced, however, especially given the woefully inadequate trial record summarized above. To hold the City liable under section 1983 based upon this record would run afoul of the Supreme Court's strict admonition in Monell against holding a municipality liable under section 1983 based upon the doctrine of respondeat superior.
Moreover even if the record supported a finding of "[a] pervasive, widespread practice," standing alone, that would be "insufficient to constitute official policy [or custom] for purposes of imposing municipal liability under § 1983 unless policymakers had actual or constructive knowledge of the practice." Burns v. Goodman, No. 3:99CV313L, 2001 WL 498231, at *6 (N.D.Tex. May 8, 2001) (emphasis added), aff'd without written opinion, 31 Fed. Appx. 835 (5th Cir. 2002). There is no basis on this record to support a finding of actual or constructive knowledge by the City's "policymakers." Contrary to Hamilton, where the evidence "suggest[ed] that the officers [had] heard of occasional incidents" of racism within the city's fire department, plaintiffs in the present case did not proffer any similar evidence. There is nothing in the record showing actual knowledge, and wisely, plaintiffs are not making a claim of actual knowledge.
Nor is there any evidence from which to infer constructive knowledge. The record does not contain evidence of any complaints to the City or calls to action or a department-wide investigation due to City police officers' alleged custom of depriving demonstrators, such as plaintiffs, of their First and Fourth Amendment constitutional rights. Despite plaintiffs' assertions to the contrary, this is not a situation where the protests and resulting arrests "were so persistent and widespread that they were the subject of prolonged public discussion or of a high degree of publicity." See Burns, 2001 WL 498231 at *6 (internal quotation marks and citation omitted). There were not, for example, any "prior complaints about the alleged practice to the police chief," or to any other high ranking City official. See id.: Consequently, even if plaintiffs had proved the existence of a municipal custom (which they have not), they have not proven constructive (or actual) knowledge.
There was proof that two local television stations ran some footage of the January 2, 1997 and the February 1997 demonstrations. Those snippets do not, however, rise to the level of "widespread publicity," as plaintiffs urge. See Pl. Memo, at 1, ¶ 2. Those broadcasts were short, only a few minutes long at most and broadcast only a few times.See Def. exhs. 14 and 15. Hence, there is no basis upon which to find that City "policymakers" had constructive knowledge of the supposed violations of plaintiffs' constitutional rights arising from protests near Georgio's Fur Salon.
As the Supreme Court so succinctly put it in Pembaur. "Monell is a case about responsibility." Pembaur, 475 U.S. at 478, 106 S.Ct. at 1297. The evidence before this court does not show that the acts of which plaintiffs are complaining "are, properly speaking, acts of the [City] — that is, acts which the municipality has officially sanctioned or ordered.[.]" See Pembaur, 475 U.S. at 480 (internal quotation marks omitted). Thus, plaintiffs have not prevailed on their section 1983 claims against the City.
As mentioned earlier, the individual defendants are being sued in their official capacities only. Therefore essentially this action is against the City alone. Even if the court had deemed this to be a suit against both the City and the individual defendants, plaintiffs' failure of proof as to a municipal custom would also mandate judgment in favor of the individual defendants herein. See Dwares v. City of New York, 985 F.2d 94, 100 (2d Cir. 1993) ("there must be proof of . . . a custom or policy in order to permit recovery on claims against individual municipal employees in their official capacities, since such claims are tantamount to claims against the municipality itself); see also McBride v. City of New Haven, No. 3:97CV1475 AWT, 2000 WL 559087, at *7 (D.Conn. March 30, 2000) (granting summary judgment dismissing plaintiffs' section 1983 claims against defendant detectives who were sued in their official capacities only because plaintiff did not produce evidence of a municipal policy or custom). Accordingly, the City is entitled to judgment in its favor as to plaintiffs' section 1983 claims based upon alleged violations of their First and Fourteenth Amendment rights.
C. Causation
As just explained, plaintiffs did not prove a custom, a prerequisite to section 1983 municipal liability. Thus, there is no need to delve into the second issue as to whether a custom or policy "cause[d] the plaintiff to be subjected to . . . a denial of a constitutional right[,]" . . ., because "absent proof of a municipal policy" or custom, plaintiffs cannot sustain a section 1983 claim against a municipality. See McKeon, 101 F. Supp.2d at 92 (internal quotation marks and citation omitted).
II. Section 1983 Conspiracy
Likewise, in the present case plaintiffs' failure to prove a municipal custom compels a finding that they did not establish a section 1983 conspiracy by a preponderance of the evidence. See Patrolmen's Benevolent Association of the City of New York v. City of New York, 97 CV 7138(SJ), 2000 WL 307377, at *6 (E.D.N.Y. March 26, 2000) (dismissing § 1983 conspiracy claim where, as with their § 1983 claims, plaintiffs did not allege, among other things, that "the violation resulted from an official policy, custom or practice as required underMonell"): see also Jones v. Maples/Trump, No. 98 CIV. 7132, 2002 WL 287752, at *9 (S.D.N.Y. Feb. 26, 2002) (for analytical purposes, distinguishing between section 1983 claims and conspiracy claims based upon that same statute), aff'd without written opinion, 71 Fed. Appx. 873 (2d Cir. June 27, 2003). Even assuming, as plaintiffs urge, that a municipal custom is not a prerequisite to a section 1983 conspiracy, plaintiffs did not meet their burden as to this conspiracy claim.
"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) (internal quotation marks and citation omitted). The record proof is wholly lacking in this regard. First of all, there is no "evidence of communications among [the police officers] that might give rise to an inference of an agreement to" violate plaintiffs' constitutional rights during Georgio Fur demonstrations. See Phoenix v. Reddish, 175 F. Supp.2d 215, 218 (D.Conn. 2001). Conspicuously absent from this record is any evidence of an understanding or agreement, tacit or explicit, among any of the police officers and the City to violate plaintiffs' constitutional rights. The fact that some of the individual officers were present at the same time as some of the arrests, or that Galvin was present as an observer when some of the arrests occurred cannot, in this court's opinion, sustain a finding of a "shared conspiratorial objective." See id. As in Phoenix plaintiffs' evidence of a conspiracy is "nothing more than rank speculation and conjecture[,]" and cannot sustain a conspiracy claim under 42 U.S.C. § 1983.
III. First Amendment Retaliation
In their complaint, plaintiffs' retaliation claims are extremely limited. There is one specific reference to retaliation which pertains to plaintiff Lynn only. See Co. at 10, ¶ 32 (Lynn "subject of retaliation . . . for having participated in the November 16, 1996 protest and for being a member of the [ADL]"). The complaint specifically mentions retaliation only one other time, almost as an afterthought. Plaintiffs broadly allege that the City's actions "were in retaliation for Plaintiffs' exercise of their constitutional rights[.]" Id at 16, ¶ 51. The court could sua sponte strike that paragraph, as well as the two preceding it, because in this fifteenth cause of action plaintiffs are seeking only punitive damages and the same are not recoverable against a municipality or defendants acting in their official capacities. See Housing Works. Inc. v. Turner, 179 F. Supp.2d 177, 209 (S.D.N.Y. 2001) (city and defendants acting in official capacities immune from punitive damages in section 1983 action), aff'd without written opinion, 56 Fed. Appx. 530 (2d Cir. 2003). Reading the complaint liberally and taking into account the trial record, however, the court deems plaintiffs to have, at a minimum, alleged a section 1983 conspiracy. Therefore, the court will next consider whether plaintiffs have met their burden of proof as to such a cause of action.
To prevail on a First Amendment retaliation claim, a plaintiff must prove: "(1) that he has an interest protected by the First Amendment; (2) defendants' actions were motivated or substantially caused by his exercise of that right; and (3) defendants' actions effectively chilled the exercise of [t]his First Amendment right." Curlew. Village of Sufferen, 268 F.3d 65, 73 (2d Cir. 2001) (citation omitted). Whether plaintiffs have come forth with sufficient proof to prevail upon such a claim is the subject of the next section.
Plaintiff Lynn easily satisfies the first element because filing (or attempting to file) a complaint of police misconduct is a protected activity. See id (citation omitted). Moreover, in essence defendants concede that the first element is met here. See Def. Memo, at 30 ("In this case, the existence of the rights of freedom of speech and freedom of assembly is not in dispute.") Even assuming that plaintiffs were able to show the second factor, nonetheless, they cannot prevail on this claim due their failure to show the third factor — a chilling effect.
On this record, plaintiffs have not shown the necessary "chilling effect." "The Supreme Court has held that `[a] negations of a subjective `chill' are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm.'" Curley, 268 F.3d at 73 (quoting Laird v. Tatum, 408 U.S. 1, 13-14 (1972)). In fact, it is well settled within this Circuit that "[w]here a party can show no change in his behavior, he has quite plainly shown no chilling of his First Amendment right to free speech." Id. (and cases cited therein). Plaintiff Lynn can show no "change in her behavior," either as to filing complaints of alleged police misconduct or engaging in ADL protests. There is no proof that after her February 21, 1996 arrest plaintiff Lynn tried to file any other such complaints or, more importantly, that her arrest somehow deterred Lynn from doing so.
Similarly, there is nothing from which it can be inferred that Lynn's discontinued affiliation with the ADL and its protests was due to her arrest at the PSB. Indeed, Lynn's testimony was to the contrary. She unequivocally testified that her "activism [with the ADL] . . . dropped off around the beginning of 1997" because she was pregnant. Tr. (Dec. 10, 2002) at 55. Accordingly, because she has not shown a "chilling effect" due to her February 21, 1996 arrest, plaintiff Lynn has not sustained her burden of proof with respect to her section 1983 retaliation claim.
The same is true as to plaintiff Wiessman, who contends that he "was the subject of retaliation by defendant members of the Syracuse City Police in that . . ., [he] was engaged in an [sic] valid exercise of the First Amendment . . . on the public sidewalk . . . on Salina Street . . . when he asked a Defendant Police Officer if he believed in the First Amendment[,]" for which Weissman claims he was thereafter "arrested without cause or provocation." PL Memo, at 11, ¶ 56. There is no proof of a chilling effect so as to sustain his retaliation claim. In fact, as more fully set forth below, in this court's opinion there is no proof that any of the plaintiffs decided to stop or discontinue ADL related activities near Georgio's as a result of any conduct by the City.
The court is cognizant of Galvin's testimony that sometime in 1997 the ADL investigation did end due to a drop-off in ADL activities. There is no link though between the decline in ADL's activities, especially in its protests near Georgio's Fur Salon, and the City's actions of which plaintiffs are complaining. Looking at the totality of the evidence, it is easy to infer that plaintiffs' ADL activities did not wane because of the City's actions. Rather, with the passage of time plaintiffs' interests expanded beyond animal rights activism and, colloquially speaking, they "moved on with their lives."
Several plaintiffs began protesting while in high school, but as they matured, the other issues took precedent in their lives (with the possible exception of plaintiffs Pease and Weissman), with several of them leaving the Northeast entirely. For example, plaintiffs Vlasak and Ferdin moved to California where they have been pursuing their respective careers, Vlasak in medicine and Ferdin in television. In a similar vein, as just noted, plaintiff Lynn was pregnant and her testimony indicates that she too left the area to pursue her schooling and to raise her young child. Plaintiff Pease also continued his education, pursuing a law degree. And while it appears that plaintiffs Pease and Weissman continue their interest in animal rights activism, it is not with the frequency and intensity which they did in their relative youth. In a nutshell, the record is void of proof that any of the plaintiffs changed their behavior because of the City's conduct alleged herein. This complete lack of proof as to an essential element of a First Amendment retaliation claim means that judgment should be entered in defendants' favor and against plaintiffs as to same.
Moreover, even if plaintiffs had come forth with sufficient proof to establish such a claim, this claim suffers from the same infirmity as plaintiffs' other section 1983 claims — a lack of proof as to a municipal custom or policy. See Davis., 228 F. Supp.2d at 347 (entering judgment in defendant city's favor where at trial "plaintiff failed to present sufficient evidence to support a finding that the . . . City Police Department had a policy or custom of retaliating against its officers for engaging in First Amendment activities"); see also Amato v. City of Saratoga, No. 97-CV-1443, 1998 WL 903625, at *4 (N.D.N.Y. Dec. 23, 1998) (assuming arguendo plaintiff could establish a prima facie retaliation claim, still, court dismissed complaint because evidence fell "woefully short" of supporting a finding of municipal custom or policy). This lack of proof of a custom is most notable with respect to this retaliation claim to the extent it is based upon defendants' purported "surveillance" of the ADL and its activities. That is so because "surveillance of First amendment activities is not retaliation for those activities." Davis, 228 F. Supp.2d at 345. "Nor does the fact that surveillance may chill free speech demonstrate that the Police Department, in fact, ever takes adverse action against [a civilian] for criticizing the police force or speaking on issues of public concern." Id. at 345-46 (emphasis added).
Plaintiffs repeatedly refer to "surveillance" implying that they were being secretly observed for improper reasons. Given the testimony that plaintiffs were aware of Galvin's presence, even when they were not at ADL demonstrations, and that Galvin and plaintiffs had a relatively friendly relationship, it is difficult to find that plaintiffs were under "surveillance" in the negative manner which they imply. In any event, to the extent the record can be construed as showing that plaintiffs were under such "surveillance," as explained above, that conduct, without more, cannot support a section 1983 retaliation claim.
In a nutshell, there is nothing in this record to support plaintiffs' claims, brought pursuant to 42 U.S.C. § 1983, that they were retaliated against for exercising their First Amendment rights.
IV. Conclusion as to 42 U.S.C. § 1983 Claims
To summarize, as to the section 1983 based claims, plaintiffs did not meet their burden of demonstrating a municipal custom. That lack of proof is fatal to all four of these claims regardless of the basis for same, and regardless of whether these 1983 claims are directed at the City itself or at any or all of the defendants named in their official capacities. Consequently, the court grants judgment in favor of defendants and against plaintiffs on all section 1983 causes of action.
V. State Law Claims
Plaintiffs broadly state that they have "proven that there were victims of false imprisonment, false arrest and malicious prosecution." PL Memo, at 14. The City responds with several reasons as to why there are entitled to judgment dismissing these state law claims, emphasizing lack of probable cause. Because, as will be seen, probable cause is a defense to each of these state law claims, there is no need to consider the City's additional arguments, e.g., statute of limitations, failure of proof as to the issuance of a judicial warrant, etc.
A. Probable Cause
If this record does not support a finding of lack of probable cause, then plaintiffs will be unable to meet their burden of proof as to the remaining three state law causes of action. See Horton v. Town of Brookfield, No. Civ.A. 3:98CV01834, 2001 WL 263299, at *4 (D.Conn. Mar. 15, 2001) (emphasis added) (citations omitted), aff'd without written opinion, 40 Fed. Appx. 635 (2d Cir. 2002) ("A claim for false arrest, false imprisonment, or malicious prosecution may be established only if there was no probable cause to support the plaintiffs arrest and detention.") Courts have long recognized that "[a]n officer `has probable cause to place a person under arrest when that officer has `knowledge or reasonably trustworthy information sufficient to warrant a person of reasonable caution in the belief that an offense has been committed by the person arrested.'" See Moakely v. Velarde, No. 99 CIV. 8959, 2002 WL 287848, at *3 (S.D.N.Y. Feb. 27, 2002) (quoting United States v. Chadwick, 532 F.2d 773, 785 (1st Cir. 1976)). "The inquiry into the existence of probable cause is an objective one; the subjective beliefs of the arresting officer are irrelevant." Kinzer v. Harris, 146 F. Supp.2d 194, 199 (N.D.N.Y. 2001) (citations omitted), rev'd on other grounds, 316 F.3d 139 (2d Cir. 2003). Instead, "the [c]ourt considers the facts available to [the officers] at the time of the arrest." Moakely, 2002 WL 287848, at *3 (citation omitted). As the Supreme Court has held, this requires a "totality of the circumstances" analysis. See McBride, 2000 WL 559087, at *8 (citing Illinois v. Gates, 462 U.S. 213, 238 91983)).
At the summary judgment stage it was unclear whether or not probable cause existed in this case. Having a more fully developed record, and the opportunity to see the demeanor and assess the credibility of all of the witnesses, persuades the court that based upon the totality of the circumstances, probable cause did exist for the arrests of all plaintiffs, except of course Ferdin, who was not arrested. In attempting to show lack of probable cause, plaintiffs strongly imply that because each of their arrests ended in a favorable disposition, they have shown lack of probable cause. They are conveniently overlooking the fact, however, that "[t]he validity of an arrest does not depend upon an ultimate finding of guilt or innocence."Moakely, 2002 WL 287848, at *3 (emphasis added) (citation omitted). Thus, "it [does not] matter that an investigation might have cast doubt upon the basis for the arrest." Curley, 268 F.3d at 70 (citation omitted). Probable cause is all that is necessary before an officer makes an arrest; the officer "need not also believe with certainty that the arrestee will be successfully prosecuted." Id. Therefore, despite plaintiffs' assertion to the contrary, just because their prosecutions ended in their favor, does not mean that the officers lacked probable cause to arrest plaintiffs in the first place. See McBride v. City of New Haven, No. 3:97CV1475 AWT, 2000 WL 559087, at *8 (D.Conn. March 30, 2000) ("[T]he fact that the arrestee was subsequently acquitted of the crimes for which he was arrested does not indicate that probable cause was lacking for the arrest." Id (citation omitted).
What is more, applying the totality of the circumstances standard to the trial record, reveals that the officers did have probable cause to arrest plaintiffs. As to plaintiffs Vlasak and Weissman, clearly there was probable cause to arrest each of them on January 2, 1997, because during their protesting, they obstructed traffic on Salina Street, the main thoroughfare in downtown Syracuse. Of equal if not more import, however, is that both refused to obey officers' orders to move to the other side of Salina so as not to block traffic. Weissman went so far as to begin pushing and shoving one of the officers rather than simply obey the order to move.
Based upon the totality of the circumstances, probable cause also existed to arrest plaintiff Lynn for trespass at the PSB. While probable cause is not so clear-cut as to her, all proof considered, the court is satisfied that the same existed so as to warrant her arrest. Lynn was first asked to leave the PSB as part of a group, but returned a short time later alone. Given what had happened earlier on February 21, 1996 in front of Georgio's the officers concern about the group of approximately 15 "fur protestors" of which plaintiff Lynn was a part, gathered in the PSB lobby, was justified. Those demonstrators were at the PSB for several reasons, including to support two members who had been arrested a short while before near Georgio's. Given this scenario, the officers were justifiably concerned that the actions of the demonstrators at the PSB might escalate.
Plaintiff Dyne was arrested during the November 16, 1996 demonstration near Georgio's where there were between 20 to 30 protestors, according to defendant Remain. See Tr. (Dec. 16, 2003) at 693. He was one of several officers on the scene at the time. Between the chanting, sign carrying and general tenor of that protest, it became disorderly to the point where several merchants near Georgio's complained to the police. There was testimony that the protestors were walking so as to block the entrance to Georgio's. After being told by officers that then had ten minutes to disperse, Romain testified that the demonstrators just became "more disorderly than they were before[,]" to the point of "blocking" the sidewalk "totally and yelling very loudly." Id. at 692. As to plaintiff Dyne specifically, despite being told to "move along . . . approximately three to four times[,]" she refused and instead "just kept yelling and screaming." Id. at 697. Officer Burdick, who was also present at that time, similarly described this demonstration and its aftermath. Reviewing all of the evidence as to this November 16, 1996 demonstration, the court finds that there was probable cause to arrest plaintiff Dyne.
Having determined that probable cause existed to arrest the plaintiffs who are complaining of same, there is no need to address any of the other defense arguments as to why plaintiffs did not meet their burden of proof as to the state law causes of action. Accordingly, the court finds in favor of defendants and against plaintiffs as to the causes of action for false arrest, false imprisonment and malicious prosecution VI. DeVito Counterclaim
Documentary evidence shows that although allegedly defendant Chris DeVito did sustain personal injuries during the course of the January 2, 1997 protests, there is no further evidence to substantiate his counterclaim against plaintiffs. Therefore, the court hereby grants judgment in favor of the plaintiffs and against defendant DeVito as to his counterclaim.
Conclusion
The court hereby ORDERS the Clerk of the Court to enter judgment:
(1) in favor of defendants and against plaintiffs as to all causes of action;
and FURTHER ORDERS
(2) the Clerk of the Court to enter judgment in plaintiffs' favor and against defendant Chris DeVito as to the latter's counterclaim.
IT IS SO ORDERED.