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LEGAL DOCUMENTS
JEREMIAH GUTMAN and the NEW YORK CIVIL LIBERTIES UNION v. The CITY OF NEW YORK; and RAYMOND KELLY, Commissioner of the New York City Police Department
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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JEREMIAH GUTMAN and the NEW YORK
CIVIL LIBERTIES UNION,
Plaintiffs,
v.
The CITY OF NEW YORK; and RAYMOND
KELLY, Commissioner of the New York City
Police Department;
Defendants.
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COMPLAINT
03 Civ.
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Preliminary Statement
1. This is an action to vindicate the civil rights of persons seeking to attend and participate in peaceful and lawful demonstrations in New York City. The New York City Police Department (NYPD) has adopted a policy and practice of unreasonably restricting access to large demonstrations by using police officers and barricades to close off sidewalks and streets leading to demonstration sites, by failing to provide advance notice to the public about available means of access to demonstrations sites, and by failing or refusing to provide information to members of the public seeking to reach demonstration sites. The NYPD has also employed a practice of using horses to forcefully disperse crowds of peaceful demonstrators seeking access to demonstrations. As a result of these policies and practices, large numbers of people are being prevented from attending demonstrations and those who try to attend are at risk of serious physical injury.
2. The plaintiff Jeremiah Gutman is an 80-year-old, civil-rights activist who with his family attempted to attend the February 15, 2003, demonstration in midtown Manhattan against U.S. military action in Iraq. The NYPD prevented Mr. Gutman’s family and tens of thousands of other demonstrators from reaching the demonstration by closing sidewalks and streets leading to the demonstration, by channeling demonstrators onto streets far from the rally site, and by providing inaccurate and conflicting information -- or no information -- to demonstrators looking for accessible routes to the rally. As a result, Mr. Gutman -- like many other people -- was trapped in a large crowd simply attempting to reach the demonstration. Then, without warning, police officers drove horses directly into the peaceable crowds. Mr. Gutman, while trying to protect his young son from injury, was knocked to the ground and permanently injured as a result of the NYPD’s actions.
3. The plaintiff New York Civil Liberties Union (NYCLU) is a civil-rights advocacy organization whose members regularly attend demonstrations and rallies in New York City, including the anti-war rally on February 15, 2003. The NYCLU also occasionally sponsors rallies in New York City.
4. The Republican National Convention is scheduled to take place in New York City starting in late August 2004. The Convention is expected to draw hundreds of thousands of peaceful protesters to events similar to the anti-war protests of earlier this year, including the large demonstration on February 15. Upon information and belief, the demonstration tactics employed by the NYPD at the February 15 demonstration and challenged in this case will be employed by the NYPD at demonstrations held during the Convention.
5. The plaintiff Jeremiah Gutman and members of the plaintiff NYCLU intend to attend and participate in demonstrations at the Republican National Convention next August and September. Their right to engage in this First Amendment activity, however, will be substantially burdened by the NYPD’s demonstration tactics. In addition, Mr. Gutman fears for his physical safety should he seek to attend large demonstrations in New York City where these tactics will be employed.
6. The NYPD’s policies and practices of substantially restricting public access to demonstrations, in conjunction with its failure or refusal to provide information about how to get to demonstrations, violate the First Amendment of the United States Constitution and its counterpart provisions in the New York State Constitution. Additionally, the NYPD’s practice of using horses to forcefully disperse large crowds of peaceful demonstrators violates the First and Fourth Amendments and parallel provisions of New York law. The plaintiffs seek a declaratory judgment that these policies and practices are unconstitutional and injunctive relief against their use at Republican National Convention demonstrations and at other demonstrations. Plaintiff Jeremiah Gutman also seeks monetary damages for injuries he suffered as a result of the defendants’ actions on February 15, 2003.
Jurisdiction And Venue
7. This court has subject matter jurisdiction over the plaintiffs’ federal claims pursuant to 28 U.S.C. §§ 1331, 1343(3-4). This court has supplemental jurisdiction pursuant to 28 U.S.C. §1367(a) over any and all state constitutional and state law claims that are so related to the claims within the original jurisdiction of this Court.
8. Venue is proper pursuant to 28 U.S.C. §1391(b) in that the plaintiffs’ claims arise in the Southern District of New York.
9. Jurisdiction to grant declaratory judgment is conferred by U.S.C. §§ 2201, 2202. Injunctive relief is authorized by Rule 65 of the Federal Rules of Civil Procedure. An award of costs and attorneys fees is authorized pursuant to 42 U.S.C. § 1988.
Parties
10. Plaintiff JEREMIAH GUTMAN is a resident of Hastings-on-Hudson, New York.
11. Plaintiff NEW YORK CIVIL LIBERTIES UNION (NYCLU) is a not-for-profit organization with approximately 30,000 members in New York State, many of whom are in New York City. The NYCLU has its principal office in New York City.
12. Defendant the CITY OF NEW YORK is a municipal corporation within the State of New York.
13. Defendant RAYMOND KELLY is the Commissioner of the New York City Police Department. He is sued in his official capacity.
Facts
14. The plaintiff Jeremiah Gutman is an 80-year-old resident of Hastings-on-Hudson, New York. He is a civil rights attorney who has been practicing law since 1949. He also has served for many years as a member of the Board of Directors of the NYCLU. Mr. Gutman has participated in numerous demonstrations, dating back to demonstrations against the Vietnam War in the 1970s.
15. On February 15, 2003, anti-war groups decided to organize protests in various cities around the world in response to the imminent invasion of Iraq by the United States. In New York City, the umbrella organization United for Peace and Justice (UFPJ) took charge of coordinating this event.
16. In January 2003, UFPJ contacted the NYPD to secure a permit for a march and a rally on February 15, 2003. The proposed march was to originate in Dag Hammarskold Plaza near the United Nations, and conclude in the southern section of Central Park with a rally. The NYPD informed UFPJ that it would not grant a permit for a march along this or any other route. The only alternative offered to UFPJ was a stationary rally in Dag Hammarskold Plaza and on First Avenue north of 49th Street.
17. As a result of this decision, UFPJ filed a federal lawsuit against the City for violating the First Amendment by denying a permit for their anti-war march. The District Court held that the City’s decision to ban the march was a reasonable time, place and manner restriction, emphasizing that the City’s proposal for a stationary rally “[d]id not limit the number of participants who could attend the event.” United for Peace and Justice v. City of New York, 243 F. Supp. 2d. 19, 29 (S.D.N.Y. 2003).
18. Cooperating with the NYPD and complying with the court’s decision, UFPJ held a stationary rally on First Avenue, north of 51st Street on February 15, 2003. The demonstration began around noon. The crowd included people from all age groups, including children and the elderly.
19. The NYPD was aware throughout the planning for the anti-war rally that 50,000 to 100,000 or more demonstrators were expected to attend. The NYPD later estimated that the demonstration drew 100,000 people.
20. Without advance notice to the public, the NYPD on February 15 implemented a set of measures that significantly restricted public access to the anti-war demonstration scheduled to take place on First Avenue. First Avenue south of 51st Street was closed entirely, and access to Second Avenue was severely restricted and then closed entirely. Protestors were required to filter onto First Avenue via the cross streets starting at 52nd Street and then walk south down First Avenue until they reached the demonstration. As blocks of First Avenue north of 51st Street filled with demonstrators, the NYPD used barricades and police officers to close the corresponding cross streets leading east to First Avenue, starting at 52nd Street and going north. As a result of this plan, the only way to reach the demonstration site was to walk north on Third Avenue or on avenues further west to areas where the cross streets were not closed off, walk east to First Avenue, and then return south. Even before the event had started, the NYPD had closed all cross streets up to at least 60th Street.
21. Many people seeking to attend the demonstration came from out of town and arrived at either Penn Station or Grand Central Station and planned on walking east to First Avenue. In addition, many people took subways to Grand Central or walked from areas south of the demonstration site. However, having closed First Avenue south of the demonstration site and having severely restricted access to and then closing Second Avenue, the police channeled most demonstrators onto Third Avenue and other avenues farther west. Demonstrators were reluctant to proceed north on these avenues because they wanted to move east toward the speakers’ platform on 51st Street and First Avenue.
22. The NYPD failed to take any meaningful measures to inform the public of its restrictive access plan. As a result, those seeking to attend the event had no advance notice of the restrictions on access. Then, as tens of thousands of people arrived near the demonstration site on February 15, the NYPD had no system in place for informing them how to access to the demonstration. No signs were posted at blockaded streets telling demonstrators how to get to the demonstration. Police officers manning barricades along Third and Second Avenues had no amplified sound to communicate information to those trying to get to the demonstration and had no printed information to provide to them. Instead, demonstrators were forced to ask individual police officers for directions. These police officers either provided no information or inaccurate information about how to reach the rally, and in many instances the officers may not have had accurate information to convey to demonstrators even if they had been willing and able to be helpful. The combination of barricades, closed sidewalks and streets, and lack of information and communication created a chaotic situation and resulted in tens of thousands of people at locations along Second, Third and Lexington Avenues being caught in crowds unable to move.
23. Plaintiff Jeremiah Gutman was one of many demonstrators who attempted to participate in the anti-war demonstration. He took the train to Grand Central Station with his wife and his two five-year-old twin sons, Ariel and Emanuel. Mr. Gutman and his family then walked to Madison Avenue near 42nd Street, where they distributed “Know Your Rights” materials prepared by the NYCLU.
24. After distributing the pamphlets, Mr. Gutman and his family decided to walk to the rally site. As they proceeded east towards First Avenue, NYPD officers diverted them onto Third Avenue.
25. As Mr. Gutman and other demonstrators proceeded north on Third Avenue, police officers provided them with confusing and contradictory information about which access routes the NYPD had closed and which remained open for demonstrators to use to reach First Avenue. As a result, Mr. Gutman and his family were forced to continue north on Third Avenue without knowing when or where they would reach an accessible cross street.
26. The crowd became dense as the family continued on Third Avenue. By the time the family had reached 50th Street, the crowd stood shoulder-to-shoulder. At the intersection of 52nd Street and Third Avenue, it became so overcrowded that Mr. Gutman and other demonstrators were unable to move in any direction. The crowds at other intersections along Second, Third and Lexington Avenues became similarly impenetrable.
27. Demonstrators remained peaceful and respectful of police officers, yet the NYPD did not assist the demonstrators in reaching the rally site. Instead, the NYPD responded to the crowd congestion by bringing in its Mounted Unit to disperse the crowds. Upon information and belief, defendant NYPD Chief of Department Joseph Esposito was directing the officers in the Unit.
28. The NYPD’s web site describes each horse in its Mounted Unit as weighing between 1100 and 1300 pounds and states that “one Mounted Unit Officer on horseback has the effect of ten officers on foot….”
29. The mounted officers proceeded down Second Avenue from a point north of 57th Street and advanced west on 53rd Street towards Third Avenue.
30. Without warning or provocation, the mounted officers aggressively used their horses to force demonstrators off the streets and onto the sidewalks. Mounted officers on the northeast corner of Third Avenue and 53rd Street even drove their horses onto the sidewalk, terrifying those trapped in the crowd and causing panic amongst those in the path of the horses. Because people were unable to move, portions of the crowd collapsed as demonstrators directly in the horses’ path fell onto those behind them. In the turmoil, some demonstrators were trampled by the horses. The NYPD’s use of the horses in these circumstances caused serious injuries to many of the people caught in the crowds on 53rd Street at both Second and Third Avenues, as well as further south on Third Avenue.
31. The demonstrators did not hear any warning before the police officers rode their horses into the crowd. By the time the horses bore down upon them, there was simply no place to go because the crowd filled both the street and the surrounding sidewalks.
32. The horses approached in an organized manner, with five to six officers riding abreast of each other. The police officers directed the horses to high-step and move their flanks from side to side in a particular gait used for crowd control. These tactics wreaked havoc as demonstrators attempted to move out of the horses’ way for fear of being trampled.
33. At approximately 1:00 p.m., Mr. Gutman stood with his family at the southeast corner of Third Avenue and 52nd Street caught in a large crowd that was unable to move because of the NYPD actions restricting access to the demonstration. Without warning or provocation, a phalanx of horses charged into the tightly packed crowd in the intersection. Police officials made no attempt to disperse the crowd by other means, and Mr. Gutman never heard any warning about the horses’ approach. Suddenly, he saw the horses advance into the crowd. He was 25-30 people deep in the crowd and was unable to move out of the horses’ path.
34. As the horses approached the middle of the intersection, the demonstrators in front of Mr. Gutman were knocked down and began to fall upon those behind them. Mr. Gutman’s wife and son Emanuel were able to move away into Third Avenue, but Mr. Gutman and his son Ariel were trapped in the crowd as people began to collapse towards them on the sidewalk.
35. Mr. Gutman was afraid that five-year-old Ariel would be crushed. He pushed as forcefully as he could against the falling crowd to protect his child. Mr. Gutman was knocked over and struck the street or curb, injuring his ankle. Ariel fell onto Mr. Gutman.. While on the ground, Mr. Gutman continued to push against the crowd to prevent people from crushing him and his son. As a result, Mr. Gutman tore the rotator cuff of his right shoulder.
36. After parting the crowd, the officers rode away. Despite the presence of injured demonstrators, they never looked back to see the results of their actions.
37. After the incident, the Gutmans stayed in the vicinity of 52nd Street and Third Avenue for approximately 20 minutes, caring for Mr. Gutman’s injuries and talking to others about the incident. Deterred by his injuries and discouraged by the police action, Mr. Gutman and his family did not attempt to continue on. As a result of their experiences, they believed that they would not be successful in reaching the rally.
38. The NYPD’s overly restrictive control of access to the rally, in conjunction with the Department’s failure to provide information about how to get to the rally, prevented tens of thousands of people from reaching the rally site. Many demonstrators reported that police officers directed them to take routes leading away from the rally. One demonstrator reported, “[The police] herded us in circles, forced us to walk aimlessly, and refused to give information.” Another participant explained, “When I asked one officer where I was to go and how to get to the demonstration he said ‘Home.’” Videotape of the incident also captures mounted officers telling people to “go home.”
39. As another example, on Third Avenue, demonstrators complained that police directed them to walk north to 59th Street to cross over to First Avenue. However, at 59th Street, officers told demonstrators that access to First Avenue had been moved to 72nd Street. Once demonstrators reached 72nd Street, they were again told to move north.
40. Given that the NYPD was fully aware that more than 100,000 demonstrators were likely to attend the rally, the defendants knew or should have known that their plan for restricting access to the rally site would prevent large numbers of demonstrators from reaching the event.
41. The NYPD’s tactics also injured many protestors in addition to Mr. Gutman. The injuries caused by the horses were particularly egregious. The use of horses was not prompted by any violence or disorderliness on the part of the protestors. The demonstrators cooperated with the police and attempted to obey police instructions.
42. The NYCLU received over 300 accounts by e-mail, fax and letter concerning police misconduct or mistreatment in conjunction with the rally. Approximately 125 of these reports describe how mounted officers rode into dense crowds of people on Second, Third and Lexington Avenues.
43. In one of these e-mails, a woman who was standing on 51st Street and Third Avenue described how a horse swung around and cracked her in the skull. She wrote, “I felt an impact like a two-by-four board cracking me on the forehead. I remember jerking backward against the person behind me…My glasses were squashed against my nose and face and my right lens got a deep scratch… I felt dazed and lightheaded. The horse’s spit coated my lens…my vision was blurry….” This woman needed to go to the hospital for neurological tests after the rally.
44. An e-mail from a history professor who had been caught in the middle of crowd described the scene as horses rushed onto demonstrators. “Suddenly, a row of maybe a dozen mounted police appeared in front of us…. They made no announcement, issued no warnings…. and soon a phalanx of horses rushed us. Immediately, screams erupted from the front as people were pushed aside and knocked over. As some people fell, the cops kicked their horses’ sides, urging them on…. The police seemed intent on driving the noses of their mounts into our heads….”
45. The Civilian Complaint Review Board (CCRB) received 60 complaints as a result of the February 15 demonstration related to police actions. Approximately half of these complaints related to police use of horses.
46. The NYPD’s heavy handed crowd control tactics during the February 15 rally received substantial media coverage, e.g. “Anti-War Protestors Charge NYPD Brutality” (Daily News, February 19, 2003); “Protestors Say City Police Used Rough Tactics at Rally” (New York Times, February 19, 2003). The Daily News reported that after one woman was trapped for hours at 59th Street, she was grabbed by a police officer, dragged along the street, flipped over and then slammed against a patrol car. (Daily News, July 2, 2003). A newspaper photographer trying to cover the rally reported: “I got knocked down by a police officer. I was on the ground, got up, and got knocked down again.” (Village Voice, March 4, 2003).
47. The NYPD’s unreasonable use of horses during the demonstration garnered particular media attention. Newsday reported that one woman trampled by a horse was denied medical assistance for at least an hour (Newsday, July 2, 2003). A Washington Post article featured a photograph with a caption reading, “A New York City mounted police officer beats back an antiwar demonstrator as police cleared protestors from Third Avenue on New York’s East Side” (February 16, 2003).
48. As a result of the extreme congestion of the crowds along Second and Third Avenues, the NYPD and its members, knew or should have known that riding horses into crowded areas and onto sidewalks would cause injury to significant numbers of demonstrators.
49. The City Council held oversight hearings to review police tactics during the rally, citing concern for the NYPD’s management of people’s civil liberties. During the hearings, Chief of Patrol Nicholas Estavillo testified that the Department’s mistakes at the February 15 demonstration prompted an internal review of procedures used at the rally. Plaintiffs know of no changes that have been made to department policy concerning the use of police horses at demonstrations.
50. The NYPD has a practice and policy of closing off sidewalks and streets with barricades and failing to provide adequate information to demonstrators about how to navigate these barricades. This practice or policy substantially and unnecessarily restricts access to demonstrations.
51. One of the first large demonstrations at which the NYPD used barricades and police officers unreasonably to close streets leading to major demonstrations was the Million Youth March rally that took place in Harlem on September 5, 1998. That demonstration -- the stated purpose of which was to support the empowerment of black youth --was held on six blocks of Malcolm X Boulevard north of 118th Street.
52. For the Million Youth March event, the NYPD used police officers and barricades to restrict or completely close off access to many streets leading to the rally site. Thousands of people seeking to attend the demonstration were prevented from entering blocks leading to the demonstration and instead were directed to other streets that they were told were open as access routes. When they arrived at those streets, police officers refused to allow them to use the streets but instead sent them off to yet other streets. Through these actions, the NYPD prevented large numbers of people from ever reaching the demonstration.
53. On September 9, 2003, the NYCLU held a demonstration in front of Federal Hall in connection with a visit to New York City by Attorney General John Ashcroft. The NYCLU had a permit for the demonstration, which took place between approximately 12:00 noon and 2:00 p.m. and attracted as many as 2,500 demonstrators.
54. The NYPD used police officers and barricades to close most of the streets leading to the site of the NYCLU’s demonstration on September 9, severely restricting access to the event. The NYCLU received numerous reports that people seeking to reach the rally were stopped by police officers and given incomplete or inaccurate information about how to reach the demonstration. Upon information and belief, the NYPD’s actions restricting access to this demonstration prevented significant numbers of people from reaching the demonstration and thus reduced attendance at the event.
55. Upon information and belief, the NYPD has a practice or policy of using horses in conjunction with demonstrations. The NYPD’s Mounted Unit’s mission includes crowd control, and, as the NYPD’s web site states, mounted officers “are used extensively at concerts, demonstrations, strikes, entertainment events, public celebrations, and the numerous assemblages that take place throughout the year.” Upon information and belief, the NYPD does not have in place adequate safeguards and policies limiting the use of NYPD horses at demonstrations so as to assure that demonstrators will not be placed at unnecessary risk of injury.
56. The NYPD employed police officers on horses at other peaceful anti-war demonstrations this year, including a large march that took place on March 22, 2003.
57. Charging horses into crowds constitutes unreasonable physical force and has the potential to cause grave, long-term injury.
58. The plaintiff Jeremiah Gutman sought medical attention for the injuries he sustained while attempting to reach the Februry 15, 2003, demonstration. The wound on his ankle was successfully treated. However, due to Mr. Gutman’s age, his orthopedic surgeon is unwilling to perform the surgery that would be necessary to repair his rotator cuff.
59. Mr. Gutman suffers and will continue to suffer from chronic pain. His injury and pain and suffering resulted directly from defendants’ disproportionate and unnecessary crowd control tactics.
60. As a result of the NYPD’s actions on February 15, Mr. Gutman fears that police actions will prevent him from gaining access to future large-scale demonstrations and further that he might even be seriously injured again if he attempts to attend such demonstrations.
61. Mr. Gutman would like to attend future demonstrations, particularly those at the Republican National Convention to be held in August and September 2004. Based on the Department’s well-established policies and practices of restricting access to large demonstrations, the NYPD will seek to limit access to demonstrations at the Convention in ways that will make it difficult if not impossible for large numbers of people to reach the events. In addition, it is likely that the NYPD will use force, including the use of horses, to disperse crowds trying to reach the demonstrations. The prospect of being trapped in large crowds trying to negotiate highly restrictive access to demonstration sites and encountering forceful NYPD tactics, including the use of horses, will deter if not preclude Mr. Gutman from seeking to attend these demonstrations.
62. Members of the NYCLU participated in the February 15, 2003, demonstration and intend to participate in future stationary demonstrations in New York City, including one or more demonstrations in connection with the Republican National Convention. The NYPD’s policy and practice of restricting access to large-demonstrations will impede or even prevent NYCLU members from attending demonstrations at the Convention.
63. The defendants’ actions have been taken under color of law.
64. Mr. Gutman filed a Notice of Claim on May 15, 2003.
Jury Demand
65. The plaintiff Jeremiah Gutman demands a trial by jury on each of and every one of his claims.
First Cause Of Action
66. The NYPD’s policies and practices of using barricades and police officers to restrict access to demonstrations, in conjunction with the Department’s failure to provide information to the public about the restrictions and available access to demonstration sites, violate the First Amendment of the United States Constitution and 42 U.S.C. § 1983.
Second Cause Of Action
67. The NYPD’s policy and practice of using horses to forcefully disperse crowds of peacefully assembled demonstrators violates the First and Fourth Amendments to the United States Constitution and 42 U.S.C. § 1983.
Third Cause Of Action
68. The NYPD’s policies and practices of restricting public access to demonstrations and of using horse to forcefully disperse peacefully assembled demonstrators violates Article I, section 8 of the New York State Constitution.
Fourth Cause Of Action
69. The defendants’ actions on February 15, 2003, violated the plaintiff Jeremiah Gutman’s rights under the First and Fourth Amendments to the United States Constitution; his rights under sections 8 and 12 of Article I of the New York State Constitution; his rights under the common law of New York to be free from assault and battery; and constituted negligence under the common law of New York.
WHEREFORE, the plaintiffs request that this court:
- Assume jurisdiction over this matter;
- Issue a declaratory judgment that defendants’ policies and practices of restricting access to demonstrations violates the First Amendment to the United States Constitution and violate the New York State Constitution;
- Issue a declaratory judgment that the defendants’ policies and practices of using horses to forcefully disperse peaceable crowds violates the First and Fourth Amendments to the United States Constitution and violate the New York State Constitution;
- Issue a declaratory judgment that the defendants’ actions violated the plaintiff Jeremiah Gutman’s rights under the First, Fourth, and Fourteenth Amendments to the United States Constitution and violated the Constitution and the laws of New York;
- Issue an injunction prohibiting the defendants from enforcing their policies and practices of restricting access to demonstrations;
- Issue a injunction prohibiting the defendants from using horses to forcefully disperse peacefully assembled demonstrators;
- Award the plaintiff Jeremiah Gutman compensatory damages;
- Award the plaintiffs attorneys’ fees and costs; and
- Grant any other relief the court deems appropriate.
Respectfully submitted,
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CHRISTOPHER DUNN (CD-3991)
ARTHUR EISENBERG (AE-2012)
DONNA LIEBERMAN (DL-1268)
New York Civil Liberties Union Foundation
125 Broad Street, 17th Floor
New York, N.Y. 10004
(212) 344-3005
Counsel for the Plaintiffs
Dated: November 19, 2003
New York, N.Y.
On the complaint:
MEGHAN HIGGINS*
Law Student
New York University School of Law
Civil Rights Clinic
HILLARY NOLL*
Law Student
New York University School of Law
Civil Rights Clinic
ELIZABETH D. SILVER*
Law Student
New York University School of Law
Civil Rights Clinic
*The plaintiffs and the NYCLU Foundation will be seeking leave of court to permit these students to serve as attorneys in this matter pursuant to the Southern District’s Plan for Student Practice in Civil Actions.
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