376 F. Supp. 3d 232
S.D. Ill.2019Background
- On Oct. 30, 2015 a partial building collapse in Midtown NYC produced an extensive multi‑agency rescue; NYPD established what it called a "frozen zone," and later a designated press area.
- Plaintiff Jason Nicholas, a longtime holder of an NYPD press credential and a Daily News photographer, photographed the rescue, approached an ambulance, and was escorted off the block by DCPI officials Stephen Davis and Detective Michael DeBonis, who took custody of his press credential.
- City press photographers and at least two civilian "fire‑buff" videographers were able to photograph/film inside or near the rescue area; Nicholas contends he was singled out for removal while City press personnel were permitted closer access.
- Nicholas filed suit under 42 U.S.C. § 1983 alleging violations of the First, Fourth and Fourteenth Amendments (equal access/newsgathering, procedural and substantive due process, and equal protection), and Monell claims against the City; after administrative proceedings his credential was later reinstated.
- Procedurally: cross‑motions for summary judgment by plaintiff and moving defendants (Davis and DeBonis); the Court denied plaintiff’s summary judgment, granted defendants partial summary judgment, denied others, and denied exclusion of plaintiff’s expert.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether removal and credential seizure violated the First Amendment by denying equal access or giving City press preferential access | Nicholas: DCPI allowed City press and sympathetic civilians closer access while excluding him for content/viewpoint reasons; that is unconstitutional differential access | Davis/DeBonis: area was a closed "frozen zone" for public safety; City press had access for legitimate operational/communication reasons; Nicholas interfered with rescue | Genuine disputes of material fact on whether access restrictions were content‑based/pretextual; denied summary judgment to Nicholas and denied complete summary judgment to defendants on equal‑access claim (partial denial/grant); qualified immunity denied for content‑based theory but granted re: objectively reasonable time/place/manner enforcement |
| Whether the "frozen zone" and enforcement constituted a permissible time/place/manner restriction | Nicholas: the zone was overbroad, not narrowly tailored, and the designated press area was not an adequate alternative | Defendants: closure served significant government interests (safety, rescue logistics); restriction was content‑neutral and reasonably tailored; alternatives were not feasible in exigent rescue | Genuine factual disputes on tailoring and adequacy of alternatives precluded summary judgment for either side on time/place/manner issues; however, if defendants acted reasonably in the exigency, qualified immunity protects them as to tailoring claim |
| Whether deprivation of the press credential without adequate notice violated procedural due process | Nicholas: NYPD's seizure/suspension without meaningful notice of grounds or remedies violated due process (NYPD rules allow an 11‑11 hearing; he received almost no procedural information) | Defendants: Nicholson could have discovered remedies in the City rules and only after a hearing request would more process flow; statements at scene reflected temporary measures | Court: Nicholas had a protected liberty interest in the credential (Sherrill principle); notice provided was constitutionally inadequate as a matter of law; but Individual Defendants entitled to qualified immunity on due process claim because the protected interest was not clearly established at the time |
| Whether Individual Defendants are personally liable and entitled to qualified immunity; and whether substantive due process or equal protection claims survive | Nicholas: Davis/DeBonis personally enforced the exclusion and acted with discriminatory intent; equal protection and substantive due process viable | Defendants: limited personal involvement; acted to protect safety; law unclear as to protected interest and exigent decisions warrant qualified immunity; conduct not conscience‑shocking | Personal involvement: genuine disputes preclude summary judgment on liability for First Amendment/equal protection selective enforcement. Qualified immunity: denied for content‑based First Amendment claim (clearly established law forbids press viewpoint discrimination); granted for time/place tailoring claim and for procedural due process (protected interest not clearly established). Substantive due process claim dismissed (not conscience‑shocking). |
Key Cases Cited
- Legi‑Tech, Inc. v. Keiper, 766 F.2d 728 (2d Cir.) (government may not monopolize access to information; but not dispositive for emergency access restrictions)
- ABC v. Cuomo, 570 F.2d 1080 (2d Cir.) (once some media participate, equal access to all media is required)
- Sherrill v. Knight, 569 F.2d 124 (D.C. Cir.) (bona fide journalists' interest in press credentials implicates First Amendment and due process; denial/suspension requires notice/hearing)
- Branzburg v. Hayes, 408 U.S. 665 (1972) (First Amendment protects newsgathering though it does not guarantee special access beyond public)
- McCullen v. Coakley, 573 U.S. 464 (2014) (content‑neutral time/place/manner test; narrow tailoring standard)
- Zellner v. Summerlin, 494 F.3d 344 (2d Cir.) (unchallenged videotape may control credibility at summary judgment)
- Messerschmidt v. Millender, 565 U.S. 535 (2012) (qualified immunity framework)
- Saucier v. Katz, 533 U.S. 194 (2001) (clearly established rights analysis for qualified immunity)