Protecting Protest: A Project of the NYCLU

NYCLU's Memorandum in Support of Plaintiffs’ Motion for a Preliminary Injunction

03 Civ. 9162 (RWS)
The CITY OF NEW YORK; RAYMOND KELLY, Commissioner of the New York City Police Department; and MARVINA C. LAWRENCE (badge # 31467), an Officer of the New York City Police Department,
Defendants.

03 Civ. 9163 (RWS)
The CITY OF NEW YORK; RAYMOND W. KELLY, Commissioner of the New York City Police Department; JOHN DOES and JANE DOES 1-10, officers of the New York City Police Department,
Defendants.

03 Civ. 9164 (RWS)
The CITY OF NEW YORK; RAYMOND KELLY, Commissioner of the New York City Police Department,
Defendants.

CHRISTOPHER DUNN
ARTHUR EISENBERG
125 Broad Street, 17th Floor
New York, N.Y. 10004
(212) 344-3005

Irish Lesbian & Gay Organization v. Giuliani, 143 F.3d 638 (2d Cir. 1998)4, 15

R.C. Bigelow, Inc. v. Unilever N.V., 867 F.2d 102 (2d Cir.), cert. denied sub nom.

The plaintiffs seek preliminary injunctive relief with respect to four practices employed by the New York City Police Department (NYPD) at certain demonstrations: (1) the practice of unreasonably impeding access to demonstrations by closing streets and sidewalks leading to demonstration sites without making reasonable efforts to provide information to the public about how otherwise to attain access to the site; (2) the practice of unreasonably restricting access to and participation in demonstrations through the use of metal, interlocking barricades to create “pens” in which demonstrators are required to assemble; (3) the unreasonable, generalized searching of the possessions of persons as a condition of attaining access to certain demonstrations; and (4) the unreasonable use of horses to forcibly disperse peacefully assembled demonstrators. The plaintiffs seek to enjoin the NYPD’s use of these practices at future demonstrations, including those anticipated for the Republican National Convention, and submit this pre-hearing memorandum in support of their request.

The plaintiffs filed their complaints on November 19, 2003, and designated them as related to other cases pending before this court. Upon the filing of the cases, the plaintiffs proposed to defense counsel that the parties start discovery. The City refused, taking the position it would not participate in any discovery until an initial conference with the court had taken place.

The court did not accept these cases as related cases until January 22, 2004. That day the plaintiffs wrote to the court to request an immediate conference so discovery could proceed. See Letter to Honorable Robert W. Sweet from Christopher Dunn (Jan. 22, 2004). The court promptly held a conference on February 4^th, and later that day the plaintiffs served initial requests for the production of documents on the City.^[1]

The day before an April 2 status conference, the plaintiffs wrote to the court and informed it that the City had not responded to many of the document requests served on February 4^th and further had not cooperated in the scheduling of depositions. See Letter to Honorable Robert Sweet from Christopher Dunn (Apr. 1, 2004). At the hearing the following day, the City stated that it could not appear for all the depositions sought by the plaintiffs and thus requested that the court limit the number of depositions the plaintiffs would take. The court agreed, and an April 13, 2004, discovery order limited the number of depositions on two issues.

Since then, the parties have completed a number of depositions, including of the plaintiffs Ann Stauber, Jeremy Conrad, and Donna Lieberman (as executive director of the plaintiff New York Civil Liberties Union) and of several high-level NYPD officials, including Commissioner Raymond Kelly. The parties have also exchanged substantial numbers of documents. No substantive motions have been filed.

Though the evidence in this matter is yet to be adduced, in this memorandum the plaintiffs set out facts they believe either will be undisputed or that they believe will be established during the preliminary-injunction hearing.

The plaintiffs in these three consolidated cases are the New York Civil Liberties Union (NYCLU) and three individuals, Ann Stauber, and Jeremy Conrad, and Jeremiah Gutman.^[2] The NYCLU is a not-for-profit membership organization that engages in a wide range of advocacy designed to protect and further the rights in the United States Constitution and the New York State Constitution. Established in 1951 as the New York State affiliate of the American Civil Liberties Union, the NYCLU has over 30,000 members, nearly 20,000 of whom reside in the New York City area. NYCLU members have attended demonstrations in New York City at which the NYPD practices at issue in this case have been deployed and will attend or seek to attend future demonstrations, including ones that may take place in conjunction with the Republican National Convention, at which the tactics are likely to be deployed.^[3] The NYCLU has also organized and sponsored demonstrations in the New York City area at which these tactics have been deployed, and it is sponsoring at least one demonstration during the Convention at which the challenged practices are likely to be deployed.^[4]

Ann Stauber is a 61-year-old resident of Manhattan who is a member of the NYCLU. In 1991 Ms. Stauber was diagnosed with an ailment called Ehlers-Danlos syndrome, which is a group of inherited disorders that has rendered her susceptible to easy bruising and fractures and to other damage.^[5] As a result of this condition, she has been confined to a wheelchair since approximately 1992. Nonetheless, she has attended large demonstrations in New York City, at least one of which involved the use of pens by the NYPD. Ms. Stauber intends to attempt to attend future demonstrations, including those at the Republican National Convention, but is fearful of doing so and has felt compelled to resort to special precautions in light of her prior experience.

Jeremy Conrad is a student enrolled at Brooklyn Law School. Last year Mr. Conrad attended a large anti-war demonstration in New York City at which certain of the NYPD practices at issue here were deployed. He is interested in attending demonstrations to be held at the Convention but is extremely wary of doing so in light of his encounter with the New York City Police Department at last year’s demonstration.

The four NYPD practices at issue here concern the use of metal barricades and police officers to restrict access to demonstration sites, the use of “pens” at demonstrations sites, the searching of people seeking to gain access to demonstrations; and the use of mounted officers to forcibly disperse demonstrators. The plaintiffs address each in order.

Perimeter Barricades Barring Access to Sites - Since at least 1998 the NYPD has as a matter of standard practice restricted access to certain demonstrations by closing streets and sidewalks leading to demonstration sites and barring persons seeking to attend demonstrations from passing beyond those points. These closings are effected through the use of barricades, police officers, or both. Commissioner Kelly is aware of this practice and has discussed and approved NYPD plans for demonstrations that included these types of restrictions on access.

One of the first known examples of the NYPD’s use of these perimeter barricades came in September 1998, when the NYPD used them to limit access to the so-called “Million Youth March” rally in Harlem. Since at least then the Department has regularly used them at large events in the vicinity of City Hall, it used them at the large anti-war rally that took place on February 15, 2003, and it used them at a relatively small rally sponsored by the NYCLU near Federal Hall in lower Manhattan in September 2003. In pretrial depositions, NYPD officials have testified that the Department has not abandoned this practice for future demonstrations, and it is certain that they will be used at Convention demonstrations.

The plaintiffs do not challenge the use of perimeter barricades per se. Rather, they challenge the NYPD’s blocking of sidewalks and streets leading to demonstration sites without the Department making reasonable efforts to provide the public with information about how otherwise to gain access to the blockaded demonstrations. Thus, the court will hear testimony about how, until the filing of these cases, the NYPD made no efforts to inform the public in advance of restrictions it would impose on access to demonstrations and will hear testimony about numerous instances in which people seeking to attend demonstrations encountered barricades and police officers who provided no information or inaccurate information about how otherwise to get into the demonstration, resulting in people having a very difficult time reaching demonstrations sites and in other instances never making it there.

The February 2003 rally is perhaps the most dramatic example of this problem. After refusing to allow the organizers to hold a march and insisting that their stationary rally take place on 1^st Avenue north of the United Nations, the NYPD devised and implemented a plan by which tens of thousands of people seeking to attend the rally encountered barricaded streets and sidewalks for nearly a mile north of the demonstration site. The Department had provided no information to the public about these access restrictions before the event, had no signs or printed information for those who arrived at the site only to encounter barricaded streets, and failed to assure that police officers at the barricades had information to provide people about how to attain access. Predictably, huge numbers of people doing nothing more than attempting to get to the rally were completely frustrated in their ability to do so. Commissioner Kelly has personally received and reviewed numerous complaints about the Department’s perimeter-barricade practices.^[6]

As the court will hear, while the NYPD has detailed written policies about planning for demonstrations, it has no written policies, procedures, or guidelines about the use of perimeter barricades or any about steps to be taken to facilitate public access to events at which it uses the perimeter barricades. Similarly, until this past March, the NYPD had never taken any meaningful actions to inform the public about restrictions on access to blockaded demonstration sites or to assure that police officers on the scene would provide such information to those seeking access.

In March 2004 the NYPD for the first time took significant affirmative steps to facilitate access to a demonstration site, with Police Commissioner Raymond Kelly holding a press conference about access, with the Department posting access information on its web site and the City’s main web site, with the Department assigning amplified-sound trucks to the demonstration area to provide announcements to the public about access to the site, and with the Department issuing special instructions to officers that day providing them with information about access to the event. Though the plaintiffs do not seek relief mandating one specific set of actions or another by the NYPD, the plaintiffs do contend that the Department has an obligation to undertake these types of affirmative efforts when it chooses to close off streets and sidewalks leading to demonstrations.

The Use of “Pens” at Demonstrations - For many years the NYPD has had a standard practice of setting up four-sided enclosures made of interlocking metal barricades at demonstration sites and requiring those interested in participating in the demonstration to assemble within those enclosures. NYPD officials refer to these enclosures as “pens,” a term also familiar to event organizers and demonstrators. Pens are set up at demonstrations large and small, including at the February 2003 antiwar rally and at an NYCLU demonstration in September 2003, and NYPD officials have stated that they have not abandoned this practice. Commissioner Kelly is aware of this practice and has discussed and approved NYPD plans for demonstrations that included the use of pens.

As with perimeter barricades, the plaintiffs do not challenge the use of pens per se. Rather, they challenge the manner in which the NYPD uses pens at demonstrations. Specifically, they challenge the NYPD’s practice of requiring demonstrators to assemble in pens while severely limiting the ability of people to enter and leave the pens. As a result of this, the NYPD significantly and unreasonably hinders access to and participation in demonstrations. The court will hear testimony from demonstrators and organizers explaining how the NYPD’s use of pens discourages people from attending demonstrations; makes it difficult for those seeking to attend to get into the demonstration; makes it difficult for people to gain access to food, water, and bathroom facilities without having to leave the site entirely (and thus running the risk of then having to renegotiate perimeter barricades); makes it nearly impossible for people to move around the rally site to engage with other person and groups; and even makes it difficult simply to leave a demonstration to go home.^[7] Commissioner Kelly has personally received and reviewed many complaints about the Department’s use of pens at demonstrations.

The court also will hear testimony that, as with perimeter barricades, the NYPD has no written policies, procedures, or guidelines about the use of pens at demonstrations. Deposition testimony by high-level NYPD officials was inconsistent about what the Department’s unwritten policies are about movement in and out of pens, and the Department has no reliable procedure in place to assure that officers assigned to pens are aware of the policy, whatever it might be.

Finally, the court will hear testimony that since the filing of these cases the NYPD itself has recognized that it can exercise adequate crowd control at large demonstrations without having to resort to overly restrictive pens and in fact abandoned pens entirely at the March 2004 event, which went extremely smoothly. Furthermore, for that event the Department for the first time issued special instructions to officers notifying them about steps they should take to facilitate the movement of demonstrators around the demonstration site. Again, though the plaintiffs do not seek relief mandating any particular set of actions by the NYPD, these are precisely the types of actions the plaintiffs assert the Department must undertake when it chooses to use pens at demonstrations.

Searching of Demonstrators - Shortly after September 11, 2001, the NYPD initiated a practice of searching for law-enforcement purposes the possessions of all persons seeking to attend certain demonstrations. Deposition testimony from a high-ranking NYPD official indicates that the Department deployed this policy in approximately one-third of the demonstrations that took place in Manhattan south of 59^th Street. Persons seeking to attend an NYCLU demonstration in September 2003 were subject to these searches.

Under the NYPD’s demonstrator-search practice, every person seeking to enter a penned demonstration area would have to consent to having his or her bag searched as a condition of entry to the demonstration. If the person did not consent, police officers would not allow the person to enter. Only those seeking to enter the demonstration would be subject to a search; others in the immediate vicinity of the demonstration would not be subject to searches. If weapons or contraband were found, the NYPD would engage in a routine law-enforcement investigation, which could lead to the person’s arrest. Commissioner Kelly testified that he learned of the practice after being appointed as the police commissioner and took no steps to curtail it.

During deposition an NYPD chief testified that he had been directed by the NYPD’s legal department to halt the practice in the last year, but another high-level official testified that the practice remained in place as of March 2004, when he was transferred out of the relevant command. The NYPD chief said he knew of no written NYPD directives halting the practice, and defense counsel has stated in writing that no such directive exists. The court will hear testimony about the NYPD requiring people to consent to searches of their bags in order to enter a demonstration that took place within the last two weeks.^[8]

The NYPD’s Mounted Unit - The NYPD has a Mounted Unit that is routinely assigned to demonstrations. According to Commissioner Kelly, the Mounted Unit may be used to disperse crowds of demonstrators by moving into the crowd and striking people with the horses, and he is personally aware that the unit has done so, including at the February 2003 anti-war demonstration.

On at least five occasions at the February 2003 demonstration, the NYPD’s Mounted Unit sought to disperse crowds of people -- including plaintiff Jeremy Conrad -- by moving into the crowd and striking demonstrators, with many demonstrators being knocked down and in some instances injured. In at least one instance, mounted officers rode on to a sidewalk and into a crowd of people who were standing and sitting on the sidewalk. NYPD videotape that the plaintiffs will introduce into evidence during the hearing shows -- in one scene at the direction of Chief of Department Joseph Esposito and in another at the direction of Chief Bruce Smolka -- horses striking people who are packed on public streets without warning, including one scene in which mounted officers ride into a group of people sitting down.

NYPD officials, including the commanding officer of the Mounted Unit, testified that a horse can seriously injure or even kill a person, with the risk of injury being particularly pronounced when a person is sitting on the ground. According to Chief Esposito, the NYPD authorizes the ranking person on the scene to order the deployment of the Mounted Unit, even if that person is a sergeant. The Department has no written guidelines governing the circumstances in which the Mounted Unit may be deployed to forcibly disperse demonstrators, high-level officials of the Department did not know at the time of their depositions that the Department’s general use-of-force policy applied to deployment of the Mounted Unit to forcibly disperse demonstrators, and the officers authorized to order deployment of the Mounted Unit have received no training with respect to this activity. The Police Commissioner testified that it is essential that police departments have written guidelines and training governing the use of force, particularly when that force is potentially deadly. He further testified that a lack of guidelines and training significantly increases the likelihood of excessive and unreasonable force being used by police officers.

The plaintiffs do not contend that the NYPD can never use its Mounted Unit to disperse crowds. Rather, they contend that, given the risk of serious injury to people who might be struck by a horse, such actions may be taken only in the most limited of circumstances. The plaintiffs further contend that the Mounted Unit was used to strike people on February 15, 2003, in circumstances that were unreasonable and dangerous. Finally, the plaintiffs allege that the unreasonably dangerous practices of the Mounted Unit are attributable to a lack of supervision and training sufficient to justify injunctive relief against the City.

The plaintiffs’ challenges in these cases are based on well-established rules of constitutional law. Their challenges to the NYPD’s perimeter-barricade and pen practices involve applications of the oft-applied “time, place, and manner” doctrine of the First Amendment. Their Fourth Amendment challenge to the Department demonstrator-search practice is controlled by a Second Circuit decision that is directly on point. Finally, their challenge to the Department’s practices relating to the Mounted Unit is based on settled Fourth Amendment doctrine concerning the use of force by police officers and equally settled standards concerning failure-to-train and failure-to-supervise theories of municipal liability. After addressing the standards for a preliminary injunction, the plaintiffs turn to each of these substantive claims.

The standards governing preliminary injunctive relief in a dispute such as this one are well-established. As the Second Circuit explained in affirming a preliminary injunction issued in another case involving expressive activity, a plaintiff must demonstrate “irreparable harm in the absence of an injunction and a likelihood of success on the merits.” Latino Officers Association v. City of New York, 196 F.3d 458, 462 (2d Cir. 1999) (affirming preliminary injunction in dispute about participation in a public parade), cert. denied, 528 U.S. 1159 (2000).

“Violations of First Amendment rights are commonly considered irreparable injuries for the purposes of a preliminary injunction,” Latino Officers Ass’n, 196 F.3d at 462 (internal quotations and citations omitted), and thus the disposition of the plaintiffs’ request for preliminary injunctive relief on their First Amendment claims turns on the merits of those claims. See id. Similarly, Fourth Amendment violations constitute irreparable harm for purposes of preliminary injunctive relief. See, e.g., Covino v. Patrissi, 967 F.2d 73, 77 (2d Cir. 1992) (holding that violation of Fourth Amendment right against unreasonable searches is irreparable harm for purposes of preliminary injunction). The plaintiffs therefore turn to the issue of the likelihood of their prevailing on the merits of their claims.

B. The Plaintiffs Are Likely to Prevail on the Merits of their Claims that the NYPD’s Policies and Practices Relating to Perimeter Barricades and Pens Violate the First Amendment.

Government restrictions on the ability of people to participate in or to hold demonstrations in traditional public fora such as streets, sidewalks and parks plainly implicate the First Amendment. See, e.g., Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557, 568-70 (1995) (in challenge to state law mandating inclusion of contingent in private parade, discussing various First Amendment protected facets of participation in parades and demonstrations); Latino Officers Ass’n, 196 F.3d at 465-66 (in affirming preliminary injunction, holding that NYPD policy barring group of officers from wearing NYPD uniforms while participating in public parades implicated First Amendment rights of officers); Million Youth March, Inc. v. Safir, 18 F.Supp.2d 334, 347-48 (S.D.N.Y.) (in granting preliminary injunction in case involving dispute about location of proposed rally, reviewing cases addressing various First Amendment protected facets of demonstrations), injunction aff’d but modified on other grounds, 155 F.3d 124 (2d Cir. 1998).^[9]

Here the NYPD’s policies and practices relating to perimeter barricades substantially hinder the ability of people to get to rally sites and in some instances even prevent them from reaching demonstrations. Similarly, the policies and practices relating to the use of pens at demonstrations hinder access to demonstrations and substantially impinge upon the opportunity for people to participate in demonstrations into which they are able to gain access. These practices therefore plainly implicate the First Amendment.

Though certain aspects of the City’s perimeter-barricade and pen practices -- such as physically barring access to demonstration sites -- arguably qualify as prior restraints that would be subject to the most exacting of First Amendment scrutiny, all of them plainly are subject to the First Amendment’s less demanding but nonetheless substantial so-called “time, place, and manner” doctrine. As the Supreme Court has explained, time-place-and-manner restrictions are constitutional only if “the restrictions are justified without reference to the content of the regulated speech, . . . are narrowly tailored to serve a significant governmental interest, and . . . leave open ample alternative channels for the communication of the information.” Ward v. Rock Against Racism 491 U.S. 781, 791 (1989) (internal quotations and citation omitted).^[10]

The plaintiffs here contend that the City’s practices relating to perimeter barricades and pens violate the First Amendment because they are restrictions on expressive activity that are not narrowly tailored to serve a significant governmental interest. On this point, the defendants bear the burden of showing their restrictions are narrowly tailored. See Eastern Connecticut Citizens Action Group v. Powers, 723 F.2d 1050, 1052, 1055-57 (2d Cir. 1983) (reversing District Court and finding that insurance requirement for First Amendment activity did not qualify as constitutional time, place, and manner restriction because ‘state has failed to justify the burdens imposed on [plaintiff’s] proposed activities); accord Housing Works, Inc. v. Safir, 101 F. Supp.2d 163, 170 (S.D.N.Y. 2002) (in granting injunction against NYPD practice restricting First Amendment activity at City Hall, stating, “The defendants in this case bear the burden of demonstrating that a time, place, and manner restriction on protected speech is narrowly tailored to serve a significant governmental interest.”); Rock Against Racism v. Ward, 658 F. Supp. 1346, 1358 (S.D.N.Y. 1987) (“The City thus bears the burden of proving that the crowd size limitation contained in the Guidelines is narrowly tailored to further a legitimate state purpose.”), aff’d on other grounds, 848 F.2d 367 (2d Cir. 1988), rev’d on other grounds, 491 U.S. 781 (1989).

In determining whether the government has met its burden, the Second Circuit has declared that the federal courts are not to “kowtow without question to agency expertise.” Olivieri v. Ward, 801 F.2d 602, 606 (2d Cir. 1986). Rather, “[w]hen reviewing the reasonableness of time, place and manner restrictions on First Amendment rights, a court must independently determine the rationality of the government interest implicated and whether the restrictions imposed are narrowly drawn to further that interest.” Id.

Here, the plaintiffs know of no justification the City can offer for its practice of blocking streets and sidewalks leading to demonstration sites and then failing to provide information to the public about alternative routes of access into the sites. Indeed, Department officials up to Commissioner Kelly have testified in deposition that it is in the Department’s interest for members of the public to have accurate information about avenues of access into demonstration sites. Morever, at the one large demonstration that has taken place since the filing of this lawsuit (the March 20, 2004 anti-war event on Madison Avenue), the NYPD undertook substantial -- and commendable -- efforts to provide the public with information about how to access the demonstration. This is powerful evidence that there is no legitimate state interest that could justify blocking streets and sidewalks leading to demonstration sites and not providing the public with information about available alternative means of access. Whatever might be the particular methods chosen by the Department -- and the plaintiffs do not seek an order mandating any particular methods -- the NYPD has a legal obligation to undertake reasonable efforts to inform the public about available means of access when the Department chooses to close streets and sidewalks leading to the demonstration.

As for the pens, the plaintiffs again are unaware of any legitimate justification the City can offer for its practice of requiring that demonstrations take place in pens while failing to provide reasonable access into those pens, failing to assure that demonstrators can reasonably move around demonstrations sites -- whether to join friends, families, or groups; engage with others; distribute literature or collect petition signatures; or simply go to the bathroom or get food or water -- and even failing to assure that people can leave demonstrations sites entirely and just go home. And the Department itself seems to have recognized this problem with its unprecedented actions on March 20, 2004 of not using pens and issuing special written instructions informing officers that they should allow reasonable movement around the demonstration site.

C. The Plaintiffs Are Likely to Prevail on the Merits of Their Claim that the NYPD’s Practice of Searching All Persons Seeking to Attend Certain Demonstrations Violates the Constitution.

Without even addressing its impact on the exercise of First Amendment rights, the NYPD’s practice of searching the bags of all persons seeking to enter certain demonstrations -- and thus without individualized suspicion -- violates the most basic principles of the Fourth Amendment.^[11] More specifically, a Second Circuit decision from 1987 expressly establishes that such searches are unconstitutional.

In Wilkinson v. Forst, the Second Circuit reviewed a District Court decision enjoining police officials from conducting “pat-down” frisks of all persons seeking to enter certain rallies staged by the Ku Klux Klan in Connecticut. See 832 F.2d 1330 (2d Cir. 1987), cert. denied sub nom., Kelly v. Wilkinson, 485 U.S. 1034 (1988). The controversy had arisen out of a series of Klan rallies in which organizers had stated that they and their members intended to arm themselves, and state police officials had information that others would seek to attend the rally with weapons for the purpose of engaging in violence. Substantial violence in fact erupted at several of the rallies, and the pat-down frisks resulted in the discovery of significant numbers of weapons. In addition to these frisks, police officials searched the persons, possessions, and vehicles of some rally participants. After the police initiated their search policy, the violence abated. See id. at 1332-35.

In appealing the District Court’s injunction, the defendants made no effort to defend the searches that went beyond the pat-downs frisks. See 832 F.2d at 1335. Rather, the police sought to defend only those very limited searches and only in the most limited of circumstances:

Defendants are not contending that they have the right to conduct blanket searches at all political rallies or at all political rallies where violence is anticipated, or at all Klan rallies or functions. Rather, they maintain that when an organization with a historically demonstrable penchant for violence plans a rally which is to be attended by opposition groups who have historically clashed with the sponsoring organization, and public authorities obtain information that both sets of groups anticipate violence, those authorities, who have a duty to provide protection and maintain order at such rallies, may conduct pat-down searches of all those attending the rally.

Yet, even with the record presented in Wilkinson, the Second Circuit rejected this very limited proposition, finding that the demonstrator search policy was unconstitutional. See 832 F.2d at 1338-40. According to the court: “On balance, we agree with the district court that the indiscriminate pat-down searches conducted here were excessive.” Id. at 1340.

The demonstrator search practice before this court is far more problematic than the one at issue in Wilkinson and plainly is unconstitutional under Wilkinson. First, pursuant to the NYPD policy, demonstrators are not just being frisked; instead, they are being subjected to full-blown searches of their possessions, which are considered more intrusive under the Fourth Amendment than frisks. See generally Terry v. Ohio, 392 U.S. 1, 29-30 (1968) (distinguishing pat-down searches from searches of the interior of clothing).

Second, while deposition testimony from NYPD officials about the particular justifications for these blanket searches has been less than clear, the plaintiffs are aware of no evidence of a history of violence either by protest groups or those seeking to attend the protests at which these searches have been conducted or threatened. The extraordinary record of violence tied to the specific protests at issue in Wilkinson -- which the Second Circuit found to be insufficient to justify even pat-down frisks -- simply does not exist here.^[12]

D. The Plaintiffs Are Likely to Prevail on the Merits of their Claim that the NYPD’s Use of the Mounted Unit to Disperse Demonstrators in the Absence of Guidelines or Training Violates the Constitution.

The use of physical force by police officers against demonstrators can violate the Fourth Amendment if the force used is not objectively reasonable under the standards established in the Supreme Court’s ruling in Graham v. Connor, 490 U.S. 386, 397 (1989). See, e.g., Amnesty America v. Town of West Hartford, 361 F.3d 113, 123-24 (2d Cir. 2004) (reversing District Court and holding that use of force against abortion-clinic protesters could violate standards under Graham); Headwaters Forest Defense v. County of Humboldt, 276 F.3d 1125, 1130-31 (9th Cir. 2002) (reversing District Court and holding use of pepper spray on demonstrators unconstitutional under Graham); Lamb v. City of Decatur, 947 F.Supp. 1261, 1265-66 (C.D. Ill. 1996) (denying city’s motion for summary judgment and holding use of pepper spray on demonstrators could be unconstitutional under Graham).

The use of physical force on demonstrators presents particular concerns, as the District Court explained in Lamb,

The class plaintiffs had gathered to exercise their rights of speech and association under the First Amendment. The police sprayed pepper spray into the crowd of demonstrators on two separate occasions. The spraying was in response to some type of surge against the police line.

The fact that this is a Fourth Amendment case and not a First Amendment case does not diminish the First Amendment protections available to the plaintiffs. What value would the First Amendment carry if its demonstrators could be dispersed or intimidated by police brutality or unnecessary force?

In determining whether police use of force is unreasonable under Graham, as the Second Circuit explained in its March 2004 decision Amnesty America, the factfinder must determine whether, in light of the totality of the circumstances,

the amount of force used was objectively reasonable at the time. The inquiry therefore “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 officer or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.”

During the hearing, the plaintiffs will adduce evidence that the Mounted Unit was deployed at the February 2003 antiwar demonstration in circumstances that were objectively unreasonable in light of the factors prescribed by Graham and Amnesty America. This evidence will come in the form of videotape of actions of the Mounted Unit, testimony from the Mounted Unit’s commanding officer, and testimony from others who witnessed the unit’s actions that day.

As for the issue of whether the actions of the Mounted Unit constitute a policy or practice sufficient to warrant a preliminary injunction against the City of New York, the plaintiffs submit that such an injunction is properly founded on either a failure-to-supervise or failure-to-train theory. As the court will learn, high-level NYPD officials -- including Chief of Department Joseph Esposito – were personally involved in the actions of the Mounted Unit on February 15, 2003. The plaintiffs will also introduce evidence establishing a lack of guidelines and training governing the deployment of the Mounted Unit in forcibly dispersing groups of people, including demonstrators.

Finally, the court will learn that Commissioner Kelly personally received and reviewed numerous complaints raising serious concerns about the dangerous deployment of the Mounted Unit. For instance, one letter sent to Mayor Bloomberg and Commissioner Kelly by an eleven-year-old girl read in relevant part,

My name is Taina-Fe Landron and I am an eleven year old girl in the 5^th grade at P.S. 87 in Manhattan NYC. Today I went to the peace rally in Manhattan. I couldn’t get to 49^th st. [sic] because the crowds were huge so my mom and I went to the corner of 52^nd st. [sic] to be part of this very important day. My mom and I were enjoying the day and expressing our feelings about a possible war that we felt cannot happen. We heard noise that sounded strange so my mom said to stay inside while she went to look from the doorway. My mom saw police men on horses lining up and charging into the crowd. She told me to stay inside since I love Police officers so much and I especially love horses, she didn’t want me to see this. We walked toward the corner of 52^nd St. and 3^rd Avenue when my heart just stopped. I couldn’t believe what was happening. Policemen that I always respected were acting in a very violent way. Talking mean to people around me pushing people around and beating them with their sticks. I was so scared I started to cry. I kept asking my mom and myself WHY? Why are they doing this, this was for peace not a violent rally. I cried and I cried. Then the policemen on horses that I love sooo [sic] much charged at the crowd. I still cannot believe my eyes. Why did you tell them to do this Mr. Mayor?

In another letter to the commanding officer of the Mounted Unit and copied to Commissioner Kelly a woman wrote about needlessly dangerous actions by the unit and requested that the Department investigate and modify its procedures for the safety of police officers and protesters:

I went with a group of friends to be part of a peaceful protest against the war. We got off the subway at Grand Central and planned on walking across to the United Nations on 1^st Avenue. There were thousands of people and it was difficult for everyone to remain on the sidewalk. At Third Avenue, the crowd got too large and started spilling into the street. This was not a crowd of rowdy people. Yes, people had signs and some had drums and were chanting, but it was a peaceful group of people.

Out of nowhere the mounted police came, trying to force the crowd (made up of men, women and children, young and old) onto the sidewalk where there wasn’t enough space. People were running and pushing to get away from the hooves of the horses for fear of being trampled. The horses were obviously scared and agitated and just barely under control. It was a potentially dangerous situation. I later heard some horses were injured (slipped on the ice and injured by protesters) and thought how unnecessary that was.

For the sake of the horses, the public and the mounted officers themselves, I urge you to investigate this event and modify procedures in the future.

Despite having received and reviewed these and many other letters, Commissioner Kelly directed no evaluations of the actions of the Mounted Unit on February 15, did not direct the development of any new policies, and did not direct the implementation of any new training.

This evidence is sufficient to establish a likelihood that the plaintiffs can prevail on the merits of a claim of municipal liability under the failure-to-train and failure-to-supervise theories outlined by the Supreme Court in City of Canton v. Harris, 489 U.S. 378 (1989). See Amnesty America, 361 F.3d at 127-31 (reviewing standards for two theories); Sorlucco v. New York City Police Department, 971 F.2d 864, 873 (2d Cir. 1992) (same).^[13] Preliminary injunctive relief based on such theories is appropriate. See, e.g., Nicholson v. Scoppetta, 344 F.3d 154, 164 (2d Cir. 2003).

For all the foregoing reasons, the plaintiffs respectfully urge the court to grant their motion for a preliminary injunction.

I hereby certify that on June 1, 2004, I caused to be served the attached Memorandum in Support of Plaintiffs’ Motion for a Preliminary Injunction by facsimile and by United States First Class Mail on the following counsel of record:

^[1]At the request of the City, the parties agreed to defer all discovery on issues pertaining to certain claims concerning the processing of people arrested at demonstrations and also agreed to defer all discovery concerning damage claims by the individual plaintiffs.

^[3]As a result of the NYPD’s practices at issue in this case, at least one NYCLU member will not attend any future demonstrations in New York City at which they will be deployed, and another NYCLU member will not allow her children to attend any such demonstrations.

^[4]That it organizes events at which the NYPD deploys the practices at issue in this case and that its members attend such events each serve as an independent basis for the NYCLU to have standing in this matter. See, e.g., Irish Lesbian & Gay Organization v. Giuliani, 143 F.3d 638, 649 (2d Cir. 1998) (setting out organizational standing rules in First Amendment context).

^[5]Ms. Stauber also suffers from Type II diabetes.

^[6]Members of the NYCLU, including the deceased plaintiff Jeremiah Gutman, attempted to attend the February 2003 demonstration and encountered streets and sidewalks blocked by NYPD barricades and police officers. After making extensive efforts to find an access route to the demonstration, Mr. Gutman and his wife and two children gave up and went home.

^[7]As was everyone else who made it to the rally site, NYCLU members (including plaintiff Ann Stauber) were forced to assemble in pens erected on First Avenue for the February 2003 anti-war demonstration. During the course of the afternoon, Ms. Stauber needed to leave the pen to use the bathroom and attend to her medical needs but was told by an NYPD officer guarding the pen that she was not allowed to leave the pen. When Ms. Stauber then attempted to sneak out of the pen, the officer grabbed and damaged her wheelchair, thus preventing Ms. Stauber from leaving the demonstration and causing her extreme emotional distress.

^[8]In his deposition on May 28^th, Commissioner Kelly first testified that the practice remained in effect. After he gave that testimony, defense counsel asked for a break and conferred with the commissioner outside the presence of plaintiffs’ counsel and the court reporter. Commissioner Kelly then changed his testimony and stated that the practice had ended, though not at his direction.

^[9]In holding that the “denial of a particular opportunity to express one’s views can give rise to a compensable injury,” the Second Circuit cited a D.C. Circuit decision for the proposition that “plaintiffs could recover damages for the loss of the opportunity to communicate their anti-war message to the public in the manner they had selected.” Irish Lesbian & Gay Organization v. Giuliani, 143 F.3d 638, 649 (2d Cir. 1998) (citing Tatum v. Morton, 562 F.2d 1279, 1282-83 (D.C. Cir. 1977)).

^[10]The City’s practices also could be analyzed under First Amendment doctrine addressing government action that burdens speech, but the standards governing such challenges are the same as those governing time, place, and manner restrictions. See Turner Broadcasting System, Inc. v. Federal Communications System, 512 U.S. 622, 661-62 (1994).

^[11]As the Supreme Court recently observed in declaring unconstitutional generalized stops of motorists for law-enforcement purposes, “A search or seizure is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing.” City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2000). Though the Court has recognized that the Fourth Amendment permits searches without individualized suspicion in a few unusual contexts, it has never permitted them in anything remotely resembling the context of a public demonstration. See id. at 37-40 (discussing narrow exceptions).

^[12]Any suggestion that the plaintiffs’ challenge to the demonstrator search practice is mooted by the City’s declaration that it has the halted practice would be without merit. First, it is not at all clear as a matter of fact that the City has halted the practice. Second, even if it has, voluntary cessation of challenged conduct does not moot a controversy unless it is “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc., 528 U.S. 167, 189 (2000) (internal quotations and citation omitted). The party asserting mootness bears a “heavy burden of persuading the court that the challenged conduct cannot reasonably be expected to start up again.” Id. at 189 (internal quotations and citation omitted). And the Second Circuit has explained that “a disclaimer of intention to revive allegedly unlawful conduct does not suffice by itself to meet the heavy burden in order to render the case moot.” R.C. Bigelow, Inc. v. Unilever N.V., 867 F.2d 102, 106 (2d Cir.), cert. denied sub nom. Thomas J. Lipton, Inc. v. R.C. Bigelow, Inc., 493 U.S. 815 (1989). Any assertion by the NYPD that it has ended its practice of searching demonstrators without individualized suspicion would not moot the plaintiffs’ challenge to that practice. See New York Civil Liberties Union v. Grandeau, 305 F.Supp.2d 327, 330-32 (S.D.N.Y. 2004) (applying standards and denying mootness motion).

^[13]Under the failure-to-train theory, a section 1983 plaintiff must demonstrate that a policymaker knows “to a moral certainty” that his employees will confront a situation, that the situation presents “a difficult choice of the sort that training or supervision will make less difficult,” and that “the wrong choice by the city employee will frequently cause the deprivation of a citizen’s constitutional rights.” Walker v. City of New York, 974 F.2d 293, 297-98 (2d Cir. 1992) (internal quotations and citation omitted); accord Amnesty America, 361 F.3d at 129-31. Here, Commissioner Kelly has testified that he knows the Mounted Unit is regularly assigned to demonstrations and is authorized to and in fact has forcibly dispersed crowds of protesters, the decision to do so unquestionably presents a difficult situation for employees that training would address, and the improper use of horses to strike protesters often will cause a constitutional violation.

Under the failure-to-supervise theory, a section 1983 plaintiff must demonstrate that city policymakers are aware of the need for better supervision to prevent unconstitutional actions and have failed to take appropriate steps to effect such supervision. See Amnesty America, 361 F.3d at 127-29 Here, Commissioner Kelly has personally received and reviewed complaints of serious misconduct in the deployment of the Mounted Unit to disperse demonstrators but has failed to take any steps to assure improved supervision of the unit.

These updates were written over the course of the trial this June. They consist of day-to-day briefings regarding the proceedings.

• June 2, 2004
• June 3, 2004
• June 4, 2004
• June 7, 2004

• June 2, 2004
• June 3, 2004
• June 4, 2004
• June 7, 2004

The Manhattan Federal Court of Judge Robert Sweet has released an order blocking the NYPD from using certain tactics at large demonstrations. See the press release and the judge's decision (PDF form) for more information.

Memoranda:

• NYCLU's Memorandum in Support of Plaintiffs’ Motion for a Preliminary Injunction
• Post-Trial Memorandum in Support of Plaintiffs’ Motion for a Preliminary Injunction (PDF)
• Plaintiffs’ Proposed Findings of Fact (PDF)

• NYCLU's Memorandum in Support of Plaintiffs’ Motion for a Preliminary Injunction
• Post-Trial Memorandum in Support of Plaintiffs’ Motion for a Preliminary Injunction (PDF)
• Plaintiffs’ Proposed Findings of Fact (PDF)

Complaints:

• JEREMY CONRAD v. The CITY OF NEW YORK
• JEREMIAH GUTMAN and the NEW YORK CIVIL LIBERTIES UNION v. The CITY OF NEW YORK
• ANN STAUBER and the NEW YORK CIVIL LIBERTIES UNION v. The CITY OF NEW YORK

• JEREMY CONRAD v. The CITY OF NEW YORK
• JEREMIAH GUTMAN and the NEW YORK CIVIL LIBERTIES UNION v. The CITY OF NEW YORK
• ANN STAUBER and the NEW YORK CIVIL LIBERTIES UNION v. The CITY OF NEW YORK

These updates were written over the course of the trial this June. They consist of day-to-day briefings regarding the proceedings. • June 2, 2004 • June 3, 2004 • June 4, 2004 • June 7, 2004

• June 2, 2004 • June 3, 2004 • June 4, 2004 • June 7, 2004

The Manhattan Federal Court of Judge Robert Sweet has released an order blocking the NYPD from using certain tactics at large demonstrations. See the press release and the judge's decision (PDF form) for more information.

Memoranda: • NYCLU's Memorandum in Support of Plaintiffs’ Motion for a Preliminary Injunction • Post-Trial Memorandum in Support of Plaintiffs’ Motion for a Preliminary Injunction (PDF) • Plaintiffs’ Proposed Findings of Fact (PDF)

• NYCLU's Memorandum in Support of Plaintiffs’ Motion for a Preliminary Injunction • Post-Trial Memorandum in Support of Plaintiffs’ Motion for a Preliminary Injunction (PDF) • Plaintiffs’ Proposed Findings of Fact (PDF)

Complaints: • JEREMY CONRAD v. The CITY OF NEW YORK • JEREMIAH GUTMAN and the NEW YORK CIVIL LIBERTIES UNION v. The CITY OF NEW YORK • ANN STAUBER and the NEW YORK CIVIL LIBERTIES UNION v. The CITY OF NEW YORK

• JEREMY CONRAD v. The CITY OF NEW YORK • JEREMIAH GUTMAN and the NEW YORK CIVIL LIBERTIES UNION v. The CITY OF NEW YORK • ANN STAUBER and the NEW YORK CIVIL LIBERTIES UNION v. The CITY OF NEW YORK