606 F. App'x 17
2d Cir.2015Background
- Plaintiffs Claire Lebowitz and Keegan Stephan were Occupy Wall Street protesters arrested for trespass in Zuccotti Park on January 10, 2012.
- Arresting officers acted after a private security guard reported the plaintiffs’ conduct as violating park rules; plaintiffs lay down in the park as expressive conduct.
- Plaintiffs sued the City of New York and NYPD officers asserting violations of the First, Fourth, Sixth, and Fourteenth Amendments, plus Monell municipal-liability claims; they also sought leave to amend the complaint to challenge NYPD iris-scan procedures.
- The District Court granted summary judgment to defendants and denied leave to amend; plaintiffs appealed.
- The Second Circuit affirmed, holding (1) plaintiffs’ lying-down conduct was expressive but arrests were supported by probable cause to enforce content-neutral park rules, (2) no Fourth, Sixth, or unreasonable pre-arraignment-delay violation, and (3) amendment would be futile because plaintiffs were not subjected to completed iris scans.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| First Amendment: Was lying down protected expressive conduct and did arrest violate it? | The lie-down was expressive political speech and arrests infringed First Amendment rights. | Park rules are content-neutral time/place/manner restrictions; officers lawfully enforced them. | Court: Conduct was expressive but officers had probable cause under park rules; no First Amendment violation. |
| Fourth Amendment: Was arrest supported by probable cause? | Arresting officers lacked authority because plaintiffs had not violated park rules. | Security guard’s report provided probable cause; no indicia of unreliability. | Court: Probable cause existed based on eyewitness/putative victim report; no false-arrest claim. |
| Sixth Amendment: Were plaintiffs’ access-to-counsel rights violated pre-arraignment? | Delay/handling impaired plaintiffs’ ability to consult counsel. | Plaintiffs contacted counsel prior to arraignment and had representation at arraignment. | Court: No Sixth Amendment violation; plaintiffs showed no impairment of counsel relationship or defense. |
| Leave to Amend re: iris-scan claims | Plaintiffs sought to add claims challenging NYPD iris-scan program. | Amendment would be futile because neither plaintiff underwent a completed iris scan. | Court: Denial of leave to amend affirmed as not an abuse of discretion; futile amendment. |
Key Cases Cited
- Texas v. Johnson, 491 U.S. 397 (1989) (test for expressive conduct requiring intent to convey a message that likely will be understood)
- Spence v. Washington, 418 U.S. 405 (1974) (per curiam) (framework for identifying expressive conduct)
- Ward v. Rock Against Racism, 491 U.S. 781 (1989) (content-neutral time, place, manner restriction analysis)
- Singer v. Fulton Cnty. Sheriff, 63 F.3d 110 (2d Cir. 1995) (no civil false-arrest claim when probable cause exists)
- Curley v. Vill. of Suffern, 268 F.3d 65 (2d Cir. 2001) (probable cause from victim/eyewitness unless veracity is in doubt)
- Cnty. of Riverside v. McLaughlin, 500 U.S. 44 (1991) (standards for timeliness of arraignment and presumptive reasonableness within 48 hours)
- Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658 (1978) (municipal liability doctrine)
- Lucente v. Int'l Bus. Machines Corp., 310 F.3d 243 (2d Cir. 2002) (futility as basis to deny leave to amend)
- United States v. Haqq, 278 F.3d 44 (2d Cir. 2002) (Fourth Amendment protects an individual’s own legitimate expectation of privacy)