Memoeandum Opinion AND Order
In this action brought pursuant to 42 U.S.C. § 1983 (“Section 1983”) Plaintiff Sean Basinski (“Basinski” or “Plaintiff”) asserts claims for numerous alleged constitutional violations on the part of Defendants Police Officer Robert Browne (“Browne”) and Lieutenant John Cocchi (“Cocchi” and, collectively, “Defendants”) including: false arrest and imprisonment in violation of the Fourth Amendment; interference with an activity protected by the First Amendment; retaliatory arrest in violation of the First Amendment; and mali
The Court has carefully considered the parties’ submissions. For the reasons stated below, Defendants’ motion is granted, and Plaintiffs claims are dismissed in their entirety.
Background
Plaintiff Sean Basinski is an attorney admitted to practice law in New York State, and is the founder and director of the Street Vendor Project at the Urban Justice Center. (See Rankin Decl. ¶¶ 4-5.) The Street Vendor Project is a membership-based project that seeks to “raise public awareness about vendors” and to “teach [vendors] about their legal rights and responsibilities.” (See id. ¶ 6, Ex. 2.)
On September 19, 2013, Basinski was in or around the vicinity of a police precinct at 306 West 54 Street, New York, NY, along with two professional acquaintances, Annie Matthews and Mohammed Omar (“Omar”). (Def. 56.1 St. ¶¶1-2.) Basinski observed a street vendor and knew that “something, was going on” because a vendor would not normally be stopped in front of a police precinct. (Id. ¶¶ 3-4.) Basinski approached the vendor and engaged him in conversation.
Browne alerted Basinksi that he was conducting police business with respect to the vendor and asked Basinski to move aside. (Def. 56.1 St. ¶ 21.) Basinski claims that he complied, moving to an area of the
At that time, Browne also stated to Ba-sinksi, who is taller than Browne, that Basinski was breathing heavily and behaving. in a way that was making Browne “nervous.” (Id. ¶¶ 29-30.) In an Arrest Report drafted by Browne, Browne indicatecl that he “was alone and now realized there were three people around him and felt unsafe, the deft was shakey [sic] and seemed nervouse [sic] and started to make the a/o feel unsafe.” (See Docket Entry No. 36, Declaration of Daniel M. Braun (“Braun Deck”), Ex. C (“Arrest Report”).) Moreover, in a portion of Basisnki’s video recording of the confrontation provided to Defendants in discovery, Browne can clearly be heard telling Basinski “you’re acting very nervous right now, your breathing is starting to make me a little nervous, so I’m asking you to move to the side.” (See Braun Deck, Ex. D (“Basinski Video”).) Additiоnally, when viewing Omar’s , video recording of the confrontation, it can be seen that Basinski is taller than Browne and physically imposing; that Basinski repeatedly slid his right hand into his pants pocket throughout the course of the interaction; and that Basinski kept his left hand elevated to hold his , phone—a hard object—at face level, within striking distance of the officer. (See Rankin Deck, Ex. § (“Omar Video”).) It can also be seen that, when Browne attempted to turn his focus from Basinski back to his original poliсe business, Basinski took a step towards Browne, rather than remaining off to the side as instructed. (See id. at:16.)
Some number of pedestrians stopped to observe the scene. (Def. 56.1 St. ¶36.) When Browne instructed one of those individuals to move along, Basinski interjected, stating, in sum and substance, .“that’s where you wanted me to go.” (Def. 56.1 St. ¶ 38.) When Browne responded, in sum and substance, that he was addressing another individual, Basinski replied, in sum and substance, “I was talking to you; I can talk to you, which I’ll do.” (Id. ¶ 39.) Basin-ski admits that, as a result of his enсounter with Browne, Browne was focused much more intently on Basinski than on the vendor. (Id. ¶ 40.)
Lieutenant Cocchi then arrived on the scene, identifying himself as a lieutenant. (Id. ¶41.) Cocchi asked Basinski for his identification, which Basinski refused to provide. (Id ¶¶ 42-43.) Finally, after repeated requests to move
Disoussiqn
Rule 56 Summary Judgment Standard
Rule 56(a)' of the Federal Rules of Civil Procedure provides that summary judgment is' to be granted in favor of a moving party where that party can demonstrate “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc.,
For thе purposes of summary judgment motion practice, a fact is considered material “if it might affect the outcome of the suit under the governing law,” and an issue of fact is “genuine” where “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Holtz v. Rockefeller & Co. Inc.,
Defendants argue that they are entitled to summary judgment on each of Plaintiffs claims because there was probable case for Basinski’s arrest and that, at a minimum, they are entitled to qualified immunity on the basis of arguable probable cause. (See generally Docket Entry No. 34, Memorandum of Law in Support of Defendants’ Motion for Summary Judgment (“Def. Memo”).) Because the undisputed eviden-tiary record, even when viewed in the light most favorable to Plaintiff, is sufficient to establish that arguable probable cause existed for Plaintiffs arrest, Defendants are entitled as a matter of law to the dismissal of Basinski’s false arrest and abuse of process claims on the grounds of qualified immunity. As explained below, Defendants are also entitled to qualified immunity with respect to Basinski’s First Amendment claims, in light of the fact that Basinski has failed to demonstrate that Browne and Cocchi acted in a manner that constituted a violation of a clearly established right.
Plaintiffs Fourth Amendment Claims
Qualified Immunity Standard
Basinski has asserted a claim of false arrest in violation of the Fourth
“The doctrine of qualified immunity shields public officials performing discretionary functions from civil liability insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person wоuld have known ... or insofar as it was objectively reasonable for them to believe that their acts did not violate those rights.” Bradway v. Gonzales,
Application
As noted, Browne arrested Ba-sinski for obstructing governmentаl administration in the second degree and for disorderly conduct: obstructing traffic. A person is guilty of obstructing governmental administration when he intentionally obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from performing an official function, by means of intimidation, physical force or interference, [or] by means of any independently unlawful act ... ” N.Y. Penal Law § 195.05 (McKinney 2016.) Under New York law, this crime “requires аs an element ... that the accused act by one of three methods: (1) intimidation; (2) physical force or interference, or (3) any independently unlawful act.” Uzoukwu v. City of New York,
' Basinski’s argument in opposition to Defendants’ motion for summary judgment appears to be entirely premised on the lack of any evidence of Basihski’s physical interference with the administration of Browne’s duties, (gee Docket Entry No. 40, Plaintiff’s Memorandum of Law in Opposition tо Defendants’ Motion for Summary Judgment (“PI. Memo”) at pp. 14-15.) Basinski, however, fails to address Defendants’ contention that Basinski impaired Browne’s performance of his duties by intimidating Browne. As described above, video recordings of the interaction between Browne and Basinski show that Basinski is taller than Browne in way that is physically- imposing, that he repeatedly slid his hand into his pants pocket during the course of the interaction, and that he kept his arm elevated in order to hold his phone at face lеvel, within striking distance of the officer. (See Rankin Deck, Ex. 8 (“Omar Video”).) Basinski was vociferously argumentative with Browne, interjected into interactions with third parties in a seemingly provocative manner, and drew Browne’s attention away from the summons-related interaction with the vendor. (See generally Basinski Video, Omar Video; Def. 56.1 St. ¶ 40.)
Moreover, Browne made- it clear to Ba-sinski that he felt uncomfortable, explaining that Basinski was breathing heavily and behaving in a way that was making him nervous, a statement thаt can clearly be heard in a portion of 'Basinski’s video recording. (See Def 56.1 St. ¶¶ 29-30; Ba-sinski Video.) This is corroborated by Browne’s arrest report, in which he noted that he “felt unsafe, the deft was shakey [sic] and seemed nervouse [sic] and started to make [Browne] feel unsafe.” (See Arrest Report.) These facts provided an objective basis for Browne to have reached the objectively reasonable conclusion that there was probable cause for an obstructiоn of justice arrest based on Basinski’s behavior. The Court finds at the very least, in light of the evidence before it, that “officers of reasonable competence could disagree on whether the probable cause test was met,” with respect to Basinksi’s arrest for obstructing governmental administration pursuant to N.Y. Penal Law § 195.05, which is sufficient to sustain Browne’s claim of qualified immunity. Certainly the record before the Court does not indicate that Browne operated in a manner that demonstrates that he is “plainly incompetent” or that he “knowingly violate[d] the law,” and, under these circumstances, he is entitled to the protection of qualified immunity here. Messerschmidt,
In light of the foregoing, the Court grants Defendants’ motion for summary
Plaintiffs First Amendment Claims
Basinski asserts that “P.O. Browne and Lt. Cocchi violated Mr. Basinski’s First Amendment right to record police conduct by arresting him,” making, in essence, a First Amendment retaliation clаim and a claim for interference with a right protected by the First Amendment. (See PI. Memo at p. 16.) Once again, Defendants’ assertion of qualified immunity prevails with respect to these claims. As already noted, “[t]he doctrine of qualified immunity shields public officials performing discretionary functions from civil liability insofar as their conduct does.not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Bradway,
When conducting a qualified immunity analysis, courts within this Circuit “look to Supreme Court and Second Circuit precedent existing at the time of the alleged violation to determine whether the conduct violated a clearly established right” protected by the First Amendment. See Okin v. Village of Cornwall-On-Hudson Police Deрartment,
The Court finds that Browne and Cocchi are entitled to qualified immunity on Ba-sinski’s First Amendment ■ claims because
Furthermore, courts within this Circuit have recognized that “in cases where the right to record police activity has been recognized by our sister circuits, it appears that the protected conduct has typically involved using a handheld device to photograph or videotape at a certain distance from, and without interfering with, thе police ' activity at issue.” Rivera,
Conclusion
For the foregoing reasons, Defendants’ motion fоr summary judgment seeking dismissal of Plaintiffs Fourth Amendment, First Amendment and malicious abuse of process claims is granted in its entirety. In light of Plaintiffs withdrawal of his Monell claim and his contention that he did not raise a claim for malicious prosecution, Plaintiffs Complaint is dismissed in its entirety.
This Memorandum Opinion and Order resolves Docket Entry Number 33. The Clerk of Court is hereby directed to enter, judgment in Defendants’ favor and to close this case. ‘
SO ORDERED.
Notes
. Basinksi also asserted a Section 1983 claim for municipal liability as against the City of New York рursuant to the Supreme Court's holding in Monell v. Department of Social Services of the City of New York,
. The facts recited herein are undisputed unless otherwise indicated, Facts recited as undisputed are identified as such in the parties' statements pursuant to S.D.N.Y. Local Civil .Rule 56.1 or drawn from evidence, including videos of the encounter, as to which there is no non-conclusory contrary factual proffer. Citations to the parties’ respective Local Civil Rule 56.1 Statements ("Def. 56.1 St.” or "PL 56.1 St.”), and to the Declaration of David B. Rankin, incorporate by reference the parties' citations to underlying evidentiary submissions.
.The precise nature and extent of the conversation is disputed, as is whether Basinski offered the vendor any assistance, legal or otherwise, (Id. ¶¶ 6-8; Pi. 56.1 St. ¶¶ 6-8.)
. The parlies dispute whether or not Basinski acceded to these requests, (See Def. 56.1 St, ¶ 44; PI, 56.1 St. ¶ 44.)
. "The elements of a claim of false arrest under § 1983 are substantially the same as the elements of a false arrest claim under New York law.” Hygh v. Jacobs,
. For the same reasons, the Court dismisses Basinski’s claim for abuse of process. Courts within this Circuit have recognized that a finding of arguable probable cause .for an arrest vitiates a claim for abuse of process based on that arrest. See, e.g., Pinter v. City of New York,
. In this connection, Basinski’s argument that the Court should divine such a right from by combining the rights of “filming on one hand, • and .., criticism of officers on the other,” implicitly acknowledges that the Second Circuit has not recognized that this activity is protected by the First Amendment. (See PI. Memo at pp. 16-17.) Moreover, Basinsld’s argument that "the act of filming and recording government activity implicitly carries the message that the recorder is critical of that conduct” is baseless and unsupported by case law. (See id.) The Court declines to accept such a speculative basis for recognizing a constitutionally protected right. Indeed, as Defendants point out, “a private individual might intend to record police conduct to protect an officer against baseless claims.” (See Docket Entry No. 43, Reply Memorandum of Law in Support of Defendants’ Motion for Summary Judgment ("Reply Memo”) at p. 9.)