Plaintiffs, Benjamin Case, Elizabeth Catlin, Jennifer Klein, and Mark Kushneir, bring this action pursuant to 42 U.S.C. § 1983 against the City of New York (the “City) and nine individual defendants employed by the New York City Police Department (“NYPD”), alleging that their constitutional rights were violated in connection with their participation in an Occupy Wall Street (“OWS”) protest in Manhattan. Defendants move to dismiss the second amended complaint (hereinafter “complaint”)
BACKGROUND
I. Events of November 17,2011.
On the morning of November 17, 2011, Plaintiffs were arrested while “peacefully assembling and demonstrating with others in the Wall Street area in connection with an OWS-related demonstration.” SAC ¶¶ 103, 154, 189, ECF No. 41; see also id. ¶¶ 233, 264. They- assert that, prior to their arrests, neither they “nor other non-NYPD persons present were causing or creating the risk of any substantial blockage of vehicular or pedestrian traffic, or any other serious public ramifications,” id. ¶¶ 158, 193, 237, 269, such as “real public inconvenience, annoyance, and/or alarm,” id. ¶¶ 183, 221, 259,. 290. They allege that, “[wjithout first having given a clearly communicated dispersal' order or clearly communicated orders ... .and a meaningful opportunity ... to comply, police began to make arrests.” Id. ¶¶ 159, 194, 238, 270. Facts specific to each plaintiff are set forth below.
Benjamin Case. Case was arrested by Officer Downes
Elizabeth Catlin. Between 9:00 a.m. and 9:30 a.m. in the vicinity of Pine and William Streets, unidentified NYPD officers arrested Catlin. Id. ¶ 192. She alleges that an officer stepped on the right side of her face with his boot, which produced a blood blister or bruise that remained visible on her face for weeks thereafter and caused her pain for several days. Id. ¶¶ 195, 208, 226-27. An unidentified officer then rear-cuffed her with plastic flex-cuffs, which were too tight and hurt her. Id. ¶ 196. Catlin remained cuffed for “an excessive period of time.” Id. ¶¶ 206-07. Officer Daniel Confortó processed Catlin’s arrest. Id. ¶ 198. The complaint alleges that Confortó knew or should have known that Catlin was injured, but that he did nothing to report her injury or the use of force that caused it. Id. ¶¶ 209-11. Catlin was in NYPD custody for approximately 38 hours before she was arraigned in New York City Criminal Court and released on her own recognizance. Id. ¶ 212. She was charged with violating sections 195.05, 240.20(5), and 240.20(6) of the New York Penal Law as well as parading without a permit in violation of New York City Administrative Code section 10-110. Id. ¶ 215. The parading without a permit violation was dismissed at her arraignment. Id. ¶ 218. Catlin eventually accepted an adjournment in contemplation of dismissal (“ACD”) to resolve the charges.
Jennifer Klein. At about 9:00 a.m., in the vicinity of Pine and William Streets, unidentified officers arrested Klein. Id. ¶ 236. An officer rear-cuffed her with plastic flex-cuffs. Id. ¶239. Officer Dmitry Tverdokhleb was assigned to process Klein’s arrest. Id. ¶ 240. For several hours, Klein remained rear-cuffed in the plastic flex-cuffs, which were too tight and hurt her. Id. ¶¶ 248-49. Klein was issued a DAT and remained in NYPD custody until approximately 11:00 p.m. Id. ¶ 250. She was charged with violating sections 240.20(5) and 240.20(6) of the New York Penal Law and eventually accepted an ACD to resolve the charges. Id. ¶¶ 253, 262. The complaint alleges that Tverdokhleb and Lieutenant David Groht “provided false and misleading information” to the district attorney, id. ¶ 251, including in an accusatory instrument sworn to by Tyerdokhleb in which he stated that he observed Groht tell Klein, who was standing in a group of over 200 people in the middle of the street, “multiple times that [she and the others] were
Mark Kushneir. Unidentified officers arrested Kushneir shortly after 9:00 a.m. in the vicinity of Broadway and Exchange Place. Id. ¶ 266. An unidentified officer rear-cuffed him with plastic flex-cuffs. Id. ¶ 271. Well after Kushneir arrived at a prisoner transport vehicle, Officer Michael Maldonado was assigned to process Kush-neir’s arrest. Id. ¶ 272. For “around five hours,” Kushneir remained rear-cuffed in the plastic flex-cuffs, which were too tight and hurt him. Id. ¶¶ 280-81. Kushneir was issued a DAT and held in NYPD custody until “around or after” 11:30 p.m. Id. ¶ 282. He was charged with violating section 240.20(5) of the New York Penal Law, for which he ultimately accepted an ACD. Id. ¶¶ 285, 291. The complaint alleges that Maldonado “provided false and misleading information” to the district attorney, id. ¶ 283, including in an accusatory instrument he swore to in which he stated that he observed Kushneir “standing in the middle of the sidewalk” with approximately 100 other people, such that they “completely blocked the sidewalks” and prevented their use by pedestrians, id. ¶ 284. Kushneir claims that Maldonado did not actually observe the events leading up to Kushneir’s arrest. Id. ¶ 286.
II. NYPD Policies and Practices
Plaintiffs allege that their unlawful treatment by the NYPD on November 17, 2011, resulted from two specific policies concerning large protests that were adopted by the City in the fall of 2011. Id. ¶¶ 73-81. First, during meetings attended by Chief of Department Joseph Esposito
Plaintiffs also allege that these two policies departed from the official procedures set forth in the NYPD Patrol Guide. Id. ¶ 69. According to Plaintiffs, the Patrol Guide provides that “persons detained or arrested for non-criminal violations such as those, for which plaintiffs were presumably detained, as well as most misdemean- or offenses, who are carrying proper identification and have no outstanding arrest warrants, are normally eligible for individualized determinations of eligibility for release with a Universal Summons
Plaintiffs also claim that the NYPD used similar policies and practices against protestors during the 2004 Republican National Convention (the “RNC”), id. ¶¶ 36-47, for which Esposito helped plan the police response, id. ¶¶ 34-35. According to Plaintiffs, the City’s RNC policies resulted in unconstitutional actions, including the widespread failure to make individualized determinations of probable cause, id. ¶ 43, the use of excessive force by police officers, id. ¶¶ 44, and excessively long detention periods .for arrestees, id. ¶ 45, such that the New York State Supreme Court went so far as to hold the City “in contempt of court for failing to release hundreds of arrestees who had been detained in excess of 24 hours without justification for the delay, some of whom had been detained for more than 72 hours,” id. ¶ 46. Plaintiffs note that over 1,800 arrests were made in connection with the 2004 RNC, id. ¶ 42, the vast majority of which resulted in dismissals, id. ¶ 51. Plaintiffs allege that, despité dozens of lawsuits and a decade of litigation over the NYPD’s RNC-related conduct—which ultimately cost the City tens of millions of dollars in judgments and settlements, id. ¶¶ 48-49, 54-55, unfavorable coverage in the media, id. ¶ 54, and complaints- to the Civilian Complaint Review Board, id.—the City has failed to modify the NYPD’s policies and practices regarding crowd control, mass arrest, and prosecution,-and has failed to train, supervise; and discipline NYPD officers “in connection with properly policing First Amendment assemblies,” id. ¶¶ 55-56.
...Indeed, Plaintiffs allege, that, in the years following the 2004 RNC and prior, to the advent of OWS, the NYPD continued to employ these problematic policies and practices in connection with its years-long crackdown on “Critical Mass” bicycle rides, id. ¶ 50, which similarly resulted in multiple litigations, one of which settled for approximately $1 million', id. ¶ 53.
Based on the above allegations, Plaintiffs assert that the City and Esposito knew or should have known that the “NYPD’s plans for policing and mass arrest processing in connection with protests planned for November 17, 2011 would result in unlawful arrests, excessive use of force, excessive detentions, malicious abuse of process, and ... other unlawful conduct.” Id. ¶¶ 101-02.
DISCUSSION
I. Motion to Dismiss Standard
To withstand a Rule 12(b)(6) motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible .on its face.’ ” Ashcroft v. Iqbal,
Only Kushneir asserts a false arrest claim. “A § 1983 claim for false arrest, resting on the Fourth Amendment right of an individual to be free from unreasonable seizures, ... is substantially the same as a claim for false arrest under New York law.” Weyant v. Okst,
As an initial matter, a “plaintiff can under no circumstances recover if he was convicted of the offense for which he was arrested.” Cameron v. Fogarty,
The next question is whether there was probable cause for Kushneir’s arrest. Section 240.20(5) provides that “[a] person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof ... [h]e obstructs vehicular or pedestrian ■ traffic.” N.Y. Penal Law § 240.20(5). The Second Circuit has required a showing that the putative offender was “actually and immediately blocking” the pedestrian or vehicular traffic in question. Zellner v. Summerlin,
Kushneir claims that he was not “causing or creating the risk of any substantial blockage of vehicular or pedestrian traffic.” SAC ¶ 269. The pleadings do not suggest that he was “actually and immediately blocking” the 'pedestrian or vehicular traffic in question. Zellner,
Defendants argue that Kushneir’s false arrest claim must fail because there was probable cause to arrest him for violating another disorderly conduct provision, section 240.20(6), which states that “[a] person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof[,] [he] congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse.”
“[W]hether the police had probable cause to arrest [Plaintiff] for defying a police order turns on two factors. The first is whether, and to what extent, the police communicated their orders to the entire crowd.” Dinler v. City of New York, No. 04 Civ. 7921,
Defendants argue that Kushneir has pleaded only “threadbare legal conclusions that his arrest was improper.” Def. Reply 2. However, Plaintiffs are not required to set forth a lack of probable cause in their complaint. Under New York law, a plaintiff need not allege “want of probable cause” when stating a false arrest claim based on a warrantless arrest. Broughton,
Defendants argue that, even if probable cause was lacking, they are entitled to qualified immunity. Def. Mem. 8. A qualified immunity defense against a false arrest suit requires a showing of “arguable probable cause,” Zalaski v. City of Hartford,
Accordingly, Defendants’ motion to dismiss Kushneir’s false arrest claim is DENIED.
III. Excessive Force Claims
A claim of excessive use of force during an arrest is analyzed under the Fourth Amendment’s “objective reasonableness” standard. Graham v. Connor,
A. Tight Handcuffs
“Although handcuffs must be reasonably tight to be effective, overly tight handcuffing can constitute excessive force.” Lynch ex rel. Lynch v. City of Mount Vernon,
Although all four Plaintiffs claim that they were handcuffed too tightly, they fail to allege that they complained about their handcuffs, that Defendants ignored such complaints, and that they suffered injuries caused by the handcuffs. And although Plaintiffs assert that they were handcuffed for periods of time such as
B. Catlin’s Injury
As to the remaining claim of excessive force alleged by Catlin, “the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.” Graham,
However, for the reasons set forth in more detail in Section VIII, infra, Catlin has failed to sufficiently plead the personal involvement of any of the Defendants, “a prerequisite to an award of damages under § 1983.” Colon v. Coughlin,
Accordingly, Defendants’ motion to dismiss Case, Klein, and Kushneir’s excessive force claim is GRANTED. Defendants’ motion to dismiss Catlin’s excessive force claim is granted in Section VIII of this opinion.
IV. Excessive Detention Claim
“[T]he Fourth Amendment provides the proper analytical framework” for claims that police conduct “unconstitutionally prolonged [an arrestee’s] postarrest detention.” Bryant v. City of New York,
The complaint .alleges that Case, Klein, and Kushneir were each detained for about 15 to 20 hours, SAC ¶ 143, while Catlin was detained for about 38 hours, id. ¶ 212. Because none of the Plaintiffs were detained in excess of 48 hours, their detention periods were presumptively reasonable.
Plaintiffs claim that their release was delayed “to deter and/or prevent them from participating in further OWS-related demonstrations,” SAC ¶ 80, and, more specifically, that they and others were arrested on the morning of November 17, 2011 to prevent them from participating in another OWS protest planned for that evening on the Brooklyn Bridge, id. ¶¶ 96-99, 120.
The Court also finds that Defendants are not entitled to qualified immunity on this claim. “The rule ... that officers cam not intentionally delay an arraignment for
Accordingly, Defendants’ motion to dismiss Plaintiffs’ excessive detention claim is DENIED.
V. Right to a Fair Trial Claim
Plaintiffs claim that Defendants violated their right to a fair trial under the Sixth Amendment by swearing out false statements against Plaintiffs in accusatory instruments. SAC ¶¶ 360-56. “When a police officer creates false information likely to influence a jury’s decision and forwards that information to prosecutors, he violates the accused’s constitutional right to a fair trial, and the harm occasioned by such an unconscionable action is redressable in an action for damages under 42 U.S.C. § 1983.” Ricciuti v. N.Y.C. Transit Auth.,
Plaintiffs allege that Defendants’ sworn affidavits contained false accusations against Plaintiffs. Specifically, they claim that Almonte, Conforti, Tverdokhleb, and Maldonado each falsely swore that they had observed the conduct of Case, Catlin, Klein, and Kushneir, respectively. SAC ¶¶ 175-80, 213-17, 251-56, 283-87. The complaint further alleges that the district attorney decided to lodge charges against Plaintiffs based on these false statements. SAC ¶¶ 177, 215, 253, 285. Accepting these factual allegations as true and drawing all reasonable inferences in Plaintiffs’ favor, the Court finds that the complaint adequately alleges that these were materially false statements that would likely influence a jury’s decision and that caused Plaintiffs a deprivation of their liberty. See Mem. and Order on Recons., Marom v. City of New York, No. 15 Civ. 2017, ECF No. 66, at 2-6,
Further, Defendants are not entitled to qualified immunity on this claim. “Qualified immunity is unavailable on a claim for denial of the right to a fair trial where that claim is premised on proof that a defendant knowingly fabricated evidence and where a reasonable jury could so find.” Morse v. Fusto,
Accordingly, Defendants’ motion to dismiss Plaintiffs’ right to a fair trial claim is DENIED.
VI. First Amendment Claims
A. Retaliation
Plaintiffs assert a First Amendment retaliation claim. SAC ¶¶ 322-28. As an initial matter, the existence of probable cause will defeat a First Amendment claim “premised on the allegation that defendants prosecuted a plaintiff out of a retaliatory motive, in an attempt to silence [plaintiff].” Fabrikant v. French,
The Court rejects Defendants’ contention that there was probable cause to arrest Catlin and Klein based on the allegations in the complaint. As discussed in the context of Kushneir’s false arrest claim, nothing in the complaint suggests that the dispersal orders were sufficiently communicated to Catlin and Klein or that either was given an opportunity to comply with the orders.
“To plead a First Amendment retaliation claim a plaintiff must show: (1) he has- a right protected by the First Amendment; . (2) the defendant’s actions were motivated or substantially caused by his .exercise of that right; and (3) the defendant’s actions caused him some injury.” Dorsett v. County of Nassau,
Plaintiffs also satisfy the second element by plausibly alleging that their treatment by the NYPD was motivated or substantially caused by their First Amendment activity." SAC ¶¶ 75-80. The Second Circuit has acknowledged that a defendant’s motive and intent are “both difficult to plead with specificity in a complaint,” and therefore '“ti]t is sufficient to allege facts from which ¡a. retaliatory intent on the part of the defendants reasonably may be inferred.” Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals,
Plaintiffs can satisfy the third element— injury—by showing “either that [their] speech has been adversely affected by the government retaliation or that [they have] suffered some other concrete harm.” Dorsett,
Finally, Defendants are not entitled to qualified immunity on this claim. “[W]hen determining a motion to dismiss on qualified immunity grounds in advance of full merits discovery, ... the question to be answered is whether a reasonable Government officer, confronted with the facts as alleged by, plaintiff, could reasonably have believed that his actions did not violate some settled constitutional right.” Torres v. Village of Sleepy Hollow,
Accordingly, Defendants’ motion to dismiss Case’s First Amendment retaliation claim is GRANTED. Defendant’s motion to dismiss Catlin, Klein, and Kushneir’s first Amendment Retaliation claims is DENIED.
B. Time, Place, and Manner Restriction
In addition to their retaliation claim, Plaintiffs assert a separate claim that “the restrictions imposed by defendants' on plaintiffs’ First Amendment rights” constituted unconstitutional time, place, and manner restrictions. SAC ¶ 329. As to exactly which “restrictions” Plaintiffs are challenging, the complaint broadly asserts that the NYPD policies and practices alleged in relation to Plaintiffs’ Monell claims violated their First Amendment rights. Id. ¶ 330. In their opposition, Plaintiffs appear to clarify that their challenge is directed at the New York Penal Law provisions under which they were charged as well as the No-Summons Policy and the MAPP. PI. Opp. 36 n.8, 44,- 45, ECF No. 62. Plaintiffs challenge • these penal law provisions and policies not on their face but as applied, contending that they gave Defendants “unbridled discretion ... to permit or deny protected expression without limitation” and were, consequently, unconstitutionally enforced against them. Id. at 44, 45 & n.11.
“Expression, whether oral or written or symbolized by conduct, is subject to reasonable time, place, - or manner restrictions.” Clark v. Community for Creative Non-Violence,
As to the first requirement, a restriction “that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others.” Ward v. Rock Against Racism,
As to the second requirement, “[a]s a general matter, it is clear that a State’s interest in protecting the ‘safety and convenience’ of persons using a public forum is a valid governmental objective.” Heffron v. Int’l Soc’y for Krishna Consciousness, Inc.,
In cases involving a police officer’s oral order issued in the field, however, some courts have found that the tailoring requirement calls for a more heightened review requiring that the restriction burden no more speech than necessary to serve
[A] police directive, issued by officers in the field, poses risks similar to those presented by an injunction, warranting heightened scrutiny. First, a police directive, like an injunction, does not embody the popular will but, rather,"represents an exercise of executive authority. The absence of democratic involvement was particularly stark here. Sergeant Barth, apparently, conceived the restriction without meaningful public input and without reference to formal policy or administrative channels. Further, Sergeant Barth’s directive did not result from deliberative, democratic processes—that is, it was not the product of a “legislative choice regarding the promotion of particular societal interests.” Democratic input is especially critical in formulating speech restrictions, which must carefully balance constitutional rights against public safety imperatives. Further, as in Madsen, the directives here, which focused on First Amendment activity at a single reproductive health clinic, might easily escape public scrutiny, requiring more vigilant judicial oversight. Hence, a directive issued by officers in the field, such as the one issued by Sergeant Barth, presents constitutional hazards similar to those identified with injunctions in Madsen.
Police directives, in fact, present potentially greater opportunities for arbitrary enforcement than injunctions. Whereas injunctions are written, police directives are oral. Oral directives often lack the precision and specificity required of federal injunctions. Moreover, oral police directives are less amenable to judicial, executive, and public oversight.
Id. at 655 (citation omitted) (quoting Madsen,
Accordingly, Defendants’ motion to dismiss Plaintiffs’ First Amendment claim based on an unconstitutional time, place, and manner restriction is DENIED.
VII. Fourteenth Amendment Claims
A. Equal Protection
Plaintiffs claim that the NYPD policies and practices alleged in relation to their Monell claims, discussed below, violated their Fourteenth Amendment rights to equal protection under the laws. Plaintiffs base their equal protection claim on a selective enforcement theory, asserting that those policies and practices “target[ed] perceived participation in OWS demonstration.” SAC ¶ 345; see PI. Opp. 43. To establish a violation of equal protection based on selective enforcement, Plaintiffs must show: “(1) the person, compared with others similarly situated, was selectively treated; and (2) that such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person.” Lisa’s Party City, Inc. v. Town of Henrietta,
Plaintiffs’ cannot maintain their equal protection claim because they fail to adequately allege that they were treated differently from “others similarly situated.” Id. Although Plaintiffs assert that they were subjected to non-standard policing policies (the No-Summons Policy and the MAPP) that resulted in their being “held in custody for longer than similarly situated ‘non-OWS related’ arrestees would have been,” SAC ¶ 74; see also id. ¶ 119 (“In Plaintiffs’ cases, their arrest to release time was around double that of
Accordingly, Defendants’ motion to dismiss Plaintiffs’ equal protection claim is GRANTED.
B. Due Process
Plaintiffs also broadly plead violations of their right to due process. See SAC ¶¶ 294-95. In their opposition, however, they argue only that their right to due process was violated because the Penal Law provisions under which Plaintiffs were charged did not provide adequate notice of the prohibited conduct. PL Opp. 41 n.9. This claim, however, cannot stand because Plaintiffs do not specifically allege that the Penal Law provisions violated their due process rights. See SAC ¶¶ 294-95 (asserting generally that Defendants’ “conduct and actions and/or omissions” deprived them of due process). Plaintiffs make a passing reference to “vagueness and overbreadth concerns” in the context of their First Amendment claims, id. ¶ 329, but again fail to specify, that they are challenging the Penal: Law provisions. A claim that is asserted in a, brief but not in a pleading is not a properly pleaded claim, and the Court will not deem the pleading amended by the brief. See Telectronics Proprietary, Ltd. v. Medtronic, Inc.,
To the extent Plaintiffs also are asserting a substantive due process claim, this also fails. “[W]here another provision of the Constitution ‘provides an explicit textual source of constitutional protection,’ a court must assess a plaintiffs claims under that explicit provision and ‘not the more generalized, notion of “substantive due process.” ’ ” Kia P. v. McIntyre,
Accordingly, Defendants’ motion to dismiss Plaintiffs’ due process claim is GRANTED.
VIII. Personal Involvement of Individual Defendants
“It is well settled in this Circuit that ‘personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.’” Colon,
Each Plaintiff asserts claims against the police officer who, they allege, actually arrested them and processed their arrests, or, in the case of Catlin’s excessive force claim, “cannot [be] rule[d] out” as the officer who stepped on her face. SAC ¶ 197. Plaintiffs also wish to hold “supervisory defendants”—Esposito, McCarthy, Groht, and Papóla—liable for directing and supervising the misconduct of the subordinate officers. See id. ¶¶ 191, 235, 268, 297-300. In analyzing claims against supervisory defendants, courts in the Second Circuit have looked to Colon v. Coughlin, which held that personal involvement of a supervisor may be shown by evidence that:
(1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference ... by failing to act on information indicating that unconstitutional acts were occurring.
With regard to the first factor in particular, the Second Circuit has clarified that
A. False Arrest Claim
Kushneir asserts his false arrest claim against Maldonado and Esposito. SAC ¶ 56. As to Maldonado, Kushneir alleges sufficient facts to establish that Maldonado processed his arrest. Id. ¶¶ 272-74, 278, 284. This is sufficient to render plausible Maldonado’s personal involvement in Kushneir’s false arrest, even though Maldonado may not have been present when Kushneir was seized, see id. ¶ 286. See Marom,
As to Esposito, Kushneir alleges that, at the time of his arrest, Esposito “was personally on the scene in the vicinity of Broadway and Exchange Place,” SAC ¶ 267, where Kushneir was arrested, id. ¶ 266; “made the determination to engage in [the] mass arrests, and communicated that determination to [his] subordinates,” id. ¶ 129; and “ordered, directed, and/or otherwise supervised the mass detention and arrests,” id. ¶ 268. The complaint also alleges that Esposito took part in giving the allegedly inadequate dispersal orders just prior to Plaintiffs’ arrests, id. ¶¶ 130-31, and in maintaining control of the traffic in the vicinity, including by setting up NYPD barricades to prevent the passage of traffic through the protest areas, id. ¶ 110. The Court finds that these allegations provide a plausible basis from which to conclude that Esposito participated directly in Kushneir’s arrest. See Provost,
B. Excessive Force Claim
Catlin asserts her excessive force claim against Conforti, McCarthy, and Es-posito. The complaint alleges that before Catlin was arrested, “an unidentified NYPD officer stepped on the right side of plaintiffs face with his boot,” SAC ¶ 195, and “rear-cuffed” Catlin “with plastic flex-cuffs,” id. ¶ 196. The complaint then pleads that Conforti processed Catlin’s arrest. Id. ¶ 198. Instead of identifying the officer who stepped on her face, the complaint states that, “at this time, ... Catlin cannot rule out that defendant Conforti was the officer who stepped on her face or put her in cuffs.” Id. ¶ 197. Catlin’s statement that she “cannot rule out” that Conforti was the officer who stepped on her face is insufficient to plausibly allege his personal involvement in the excessive force used against her. See Iqbal,
-'As to McCarthy, Catlin alleges that he ■ was “on the scene” and that he “directed and/or supervised [ ] Conforti and- .other - NYPD officers in-making arrests, 'including” Catlin’s. SAC ¶ 191. However, Catlin does not claim that McCarthy was-involved in the excessive force used against' her." Because a plaintiff “cannot bring ■ a Section 1983 claim against [an individual] based solely on [his] supervisory- capacity or the fact that [he] held high positions of authority,” Hobson v. Fischer, No. 10 Civ. 5512,
The same is true for Esposito. The complaint alleges that he was present in the area of the protest, and made the determination to participate in the mass arrests that resulted in the use of excessive force during Catlin’s arrest. However, Catlin has not provided any facts suggesting a plausible .basis for Esposito’s personal involvement in the excessive force she alleges.
.Accordingly, Defendants’ motion to dismiss. Catlin’s excessive force claim is GRANTED.
C. .Excessive Detention Claim
Plaintiffs generally - assert their excessive detention claims against the sübordinate officers who arrested them and/or processed their arrests, the higher-ranking supervisors who directly oversaw the subordinate officers, and Es-posito. The complaint sufficiently alleges the personal involvement of Almonte, Con-forti, Tverdokhleb, and Maldonado in the respective excessive detention of Case, Catlin, Klein, and Kushneir, because the pleadings allege that these subordinate officers were involved in processing each plaintiffs arrest. Case’s allegations regarding Downes, however, indicate that Downes’ involvement in Case’s arrest ended once Case was arrested and sent to the prisoner transport vehicle. SAC ¶¶ 160-63. The complaint establishes that Almonte, not Downes, was involved in processing Case’s arrest. Id. ¶ 63. Thus, the Court finds that Downes cannot be held liable for Case’s excessive detention, which relates to the .period between arrest and release. As to the subordinate officers’ direct supervisors—Papóla, McCarthy, and Groht—the . complaint summarily alleges that the supervisors were personally involved in each plaintiffs arrest processing, but in support states only that the supervisors “allegedly gave dispersal orders” and “directed and/or supervised” the subordinate officers in making Plaintiffs’ arrests—actions that, as described, are not plausibly-related to each Plaintiffs post-arrest detention periods. Id. ¶¶ 156, 191, 251.
As to Esposito, however, the complaint alleges that he gave the go-ahead to the subordinate officers to make the mass arrests in which Plaintiffs were seized, see id. ¶ 129, and that he did so in order to prevent the protestors from, inter alia, engaging in protests on the Brooklyn Bridge later that evening, id. ¶¶ 95-99, 120. This is sufficient to render plausible Esposito’s direct participation in Plaintiffs’ excessive detentions, which Plaintiffs claim were partly a product of the NYPD’s “proactive” measures, ordered by Esposi-to, to prevent participation in those evening protests, id. ¶¶ 99-100. See Provost,
Accordingly, Defendants’ motion to dismiss Plaintiffs’ excessive detention claim is GRANTED as to Downes, Papóla, McCar
D. Right to a Fair Trial Claim
Plaintiffs generally assert their right to fair trial claims against the subordinate officers who arrested them and/or processed their arrests, the higher-ranking supervisors who directly oversaw the subordinate officers, and Esposito. The complaint alleges that Almonte, Conforti, Tverdokhleb, and Maldonado each falsely swore that they had observed the pre-arrest conduct of Case, Catlin, Klein, and Kushneir, respectively. SAC ¶¶ 175-80, 213-17, 251-56, 283-87. Plaintiffs claim that the officers’ false statements formed the basis of the district attorney’s decision to charge them. Id. ¶¶ 177, 215, 253, 285. The Court finds that these allegations are sufficient to show personal involvement in the facts underlying Plaintiffs’ right to fair trial claims.
As to Downes, however, the complaint does not allege that his involvement in Case’s arrest extended beyond his seizure and removal to the prisoner transport vehicle, id. ¶¶ 160-62, and the Court thus finds no plausible basis for Downes’ personal involvement in any violation o'f Case’s fair trial rights. As to Papóla, McCarthy, and Groht, the complaint contains only broad assertions insufficient to plausibly allege their personal involvement in the falsification of the accusatory instruments. The most the complaint alleges is that these officers, along with their subordinates Almonte, Conforti, and Tverdo-khleb, “provided false and misleading information” to the district attorney. Id. ¶¶ 175, 213, 235. Unlike its allegations as to the subordinate officers, however, the complaint does not supply any factual detail indicating the nature of the purportedly false information provided by the supervisors. See, e.g., id. ¶ 252 (alleging only that Tverdokhleb swore to the information provided in the accusatory instrument). The complaint also alleges broadly that Papóla, McCarthy, and Groht were, as supervisors, responsible for, inter alia, ensuring the accuracy of their subordinates’ arrest processing paperwork, id. ¶¶ 136-38, but again provides no factual detail from which it would be reasonable to infer that they were personally involved in the alleged falsification of information relating to Plaintiffs. As to Esposito, the complaint contains only bare allegations that he directly participated in the falsification of information that forms the basis of Plaintiffs’ right to fair trial claims. See, e.g., id. ¶ 135 (broadly asserting that Esposito was responsible for “ensuring] the accuracy” of “arrest processing paperwork”).
The complaint alleges, however, that Esposito may have “design[ed] and implemented]” policies which violated Plaintiffs’ fair trial rights. Id. ¶ 27. First, Plaintiffs allege that he “played a central role ... in designing and implementing” the following policies and practices relevant to Plaintiffs’ right to fair trial claims by:
• “assigning ‘arrest teams’ of officers who had not witnessed the conduct allegedly giving rise to the need for arrests to ‘process’ the arrests of multiple arrestees, including by ... swearing out accusatory instruments containing false information”; and
• “inserting NYPD Legal Bureau and CJB agents into a special Mass arrest Processing Plan using a centralized Mass Arrest Processing Center that Manufactured false business and court records after the fact designed to give the Impression that assigned arresting officers witnessed or knew things they had not, in fact, witnessed or known of.”
Id. ¶ 27. Second, Plaintiffs allege that Es-posito “suggested, endorsed, ratified, and/or enacted a policy, practice, or proce
However, the complaint fails to describe what “central role” Esposito played in “designing and implementing” the alleged policies. See id. ¶ 27. Without more than these two allegations broadly describing Esposi-to’s role with respect to these policies, the Court cannot conclude that he was personally involved in the violation of Plaintiffs’ fair,trial rights. See Richardson v. Dep’t of Correction, No. 10 Civ. 6137,
Accordingly, Defendants’ motion to dismiss Plaintiffs’ right to fan- trial claim is GRANTED as against Downes, Papóla, McCarthy, Groht, and Esposito, and DENIED as to all other individual defendants.
E. First Amendment Claims
Plaintiffs generally assert their First Amendment retaliation and time, place, and manner claims against the subordinate officers who arrested them and/or processed their arrests, the higher-ranking supervisors who directly oversaw the subordinate officers, and Esposito.
1. Retaliation
Kushneir’s First Amendment retaliation claim arises from the same factual allegations as his false arrest claim—that Defendants arrested him without probable cause because he was participating in an OWS demonstration. The claim is analyzed for personal involvement in the same manner. See Marom,
Catlin, like Kushneir, sets forth a number of allegations showing that Conforti processed her arrest. SAC ¶¶ 197-98, 200, 204, 214. Because the arrest processing constitutes part of the alleged retaliatory action taken against Catlin, these allegations are sufficient to show Conforti’s personal involvement. As to McCarthy, Catlin alleges that he was “on the scene” and “gave dispersal orders, represented that there was no permit for the conduct the protestors were allegedly engaging in, and directed and/or supervised ... Conforti and other NYPD officers in making arrests,” including Catlin’s. Id. ¶ 191. This is sufficient to render plausible McCarthy’s direct participation, and thus personal involvement, in the retaliation that forms the basis of Catlin’s claim. See Carpenter,
Similarly, Klein sufficiently alleges the personal involvement of Tverdokhleb and Groht in retaliation against her. She sets forth a number of allegations establishing that Tverdokhleb processed her arrest, SAC ¶¶ 240, 242, 246, 252, and that Groht was “on the scene” and “gave dispersal orders and dix-ected and/or supervised ... Tverdokhleb and other NYPD officers in making arrests,” including Klein’s, id. ¶ 235.
Although, unlike Kushneir, Catlin and Klein do not specifically allege that Esposi-to was in their immediate vicinity at the time of their arrests, the complaint does place Esposito in the protest areas at the
2. Time, Place, and Manner Restriction
Kushneir, Klein, and Case fail to plausibly allege the personal involvement of Maldonado, Tverdokhleb, and Almonte with respect to their time, place, and manner claims. They specifically allege that these officers were not on the scene at the time of each Plaintiffs arrest, SAC ¶¶ 178, 254, and/or did not personally observe the conduct leading up to the arrests, id. ¶¶ 179, 255, 286. Plaintiffs do not allege that these officers otherwise took part in the events leading up to the arrests, claiming only that they were involved in the subsequent processing of the arrests. Thus, there is no basis to conclude that Maldonado, Tverdokhleb, and Almonte were personally involved in the events leading up to Plaintiffs’ arrests that-form the basis of Plaintiffs’ First Amendment time, place, and manner challenge.
Plaintiffs do, however, sufficiently allege the personal involvement of the supervisors. As to McCarthy, Groht, and Pa-póla, Plaintiffs allege that these officers were “on the scene” of the arrests and actually gave the dispersal orders. Id. ¶¶ 132-34, 156, 191, 235. The complaint goes even further with Esposito, alleging that he was present in the protest areas at the time of Plaintiffs’ arrests, id. ¶ 104; made the determination to engage in the arrests, which he communicated to his subordinates, id. ¶ 129; and took part in maintaining control of the traffic in the area and giving the allegedly inadequate dispersal orders just prior to Plaintiffs’ arrests, id. ¶¶ 110, 130-31. These allegations are sufficient to render plausible the direct participation, and thus personal involvement, of the supervisory defendants with respect to Plaintiffs’ time, place, and manner claims. See Carpenter,
Case sufficiently alleges the personal involvement of Downes, claiming that Downes arrested and handcuffed him, SAC ¶¶ 160-61, rendering plausible Downes’ direct participation in the events leading up to the arrest that constituted the allegedly unconstitutional restriction.
In contrast, Catlin has not sufficiently pleaded that Conforti directly participated in Catlin’s arrest. The complaint alleges that Conforti “cannot [be] rule[d] out” as the officer who handcuffed Catlin. Id. ¶ 197. As with Catlin’s excessive force claims, this allegation is insufficient to plausibly allege Conforti’s personal involvement in the arrest.
Accordingly, Defendants’ motion to dismiss Plaintiffs’ First- Amendment claim based on an unconstitutional time, manner, and place restriction is GRANTED as to Maldonado, Tverdokhleb, Almonte, and Conforti, and DENIED as to all other individual defendants.
IX. Failure to Intervene
Plaintiffs also claim that the individual Defendants are liable for failing to intervene to prevent the violation of their constitutional rights. Because a “failure to intervene claim is contingent upon the disposition of the primary claims underlying the failure to intervene claim,” Matthews v. City of New York,
Further, a defendant “cannot be hable for both the underlying constitutional deprivation and a failure to intervene to stop [himself] from committing that violation.” Marom,
“It is widely recognized that all law enforcement officials have an affirmative duty to intervene to protect the constitutional rights of citizens from infringement by other law enforcement officers in their presence.” Anderson v. Branen,
Plaintiffs fail to plausibly allege that Downes had a “realistic opportunity” to prevent Case’s excessive detention or the violation of his fair trial rights for the same reasons they cannot show his personal involvement in the underlying violations. See id. Nothing in the complaint suggests that Downes’ involvement in Case’s arrest extended beyond executing the arrest itself and sending Case to the prisoner transport vehicle. SAC ¶¶ 160-63. Thus, the Court finds that Downes cannot be held liable for failing to intervene on these two claims.
As to Papóla, McCarthy, and Groht, the complaint’s broad allegations that they “directed and/or supervised” the subordinate officers in making arrests, id. ¶¶ 156, 191, 251, were responsible for ensuring the accuracy of their subordinates’ arrest processing paperwork, id. ¶¶ 136-38, and, along with their subordinates, “provided false and misleading information” to the district attorney, id. ¶¶ 175, 213, 235, fail to raise a reasonable inference that they had a “realistic opportunity” to prevent Plaintiffs’ excessive detentions and the violation of their fair trial rights. See Anderson,
Similarly, with respect to the failure to intervene claim against Esposito, the complaint broadly asserts that Esposito was responsible for “ensuring] the accuracy” of “arrest processing paperwork,” SAC ¶ 135, and that he “suggested, endorsed, ratified, and/or enacted,” id. ¶ 114, or played a “central role” in “designing and implementing,” policies pursuant to which subordinate officers swore out accusatory instruments containing false information, id. ¶27. These vague allegations provide no plausible basis to conclude that Esposi-to had a realistic opportunity to intervene to prevent the falsification of Plaintiffs’ accusatory instruments. Thus, he cannot be held liable for failing to intervene to prevent the denial of Plaintiffs’ fair trial rights.
Accordingly, Defendants’ motion to dismiss Plaintiffs’ failure to intervene claim is GRANTED as to all defendants.
X. Monell Claims
Finally, Plaintiffs seek to hold the City liable for the deprivation of their constitutional rights. A municipality may be held liable under § 1983 only if the plaintiffs injury is the result of a municipal policy, custom, or practice. Monell v. Dep’t of Soc. Servs.,
Plaintiffs argue that the City is liable under the theory that it failed to train its police officers. Pl. Opp. 50-59; see also SAC ¶ 362. To state a claim for municipal liability against the City, the complaint must demonstrate a “direct causal link between” the alleged failure to-train and the constitutional deprivation. Triano,
Generally, “[a] pattern of similar constitutional violations by untrained employees is ... necessary to demonstrate deliberate indifference for purposes of failure to train.” Id. at 62,
At the motion to dismiss stage, the Second Circuit uses a three-prong test to determine whether a plaintiff has demonstrated a municipality’s “deliberate indifference” in the context of a failure to train claim. Walker v. City of New York,
In Marom v. City of New York,
the allegations regarding the RNC protest are plaintiffs’ own conclusions, unsupported by facts, that the NYPD’s actions in 2004 caused a substantial number of constitutional violations. And, the allegations concerning previous section 1983 lawsuits fail to explain which— if any—lawsuits led to findings of liability against the NYPD for constitutional violations, beside the one conviction of an NYPD officer. (FAC ¶ 26). They also do not allege that testimony was taken during any of those lawsuits that showsa pattern and practice of constitutional abuse. Plaintiffs do cite a joint study produced by The Global Justice Clinic at NYU Law School and the Walter Leit-ner International Human Rights Clinic at Fordham Law School, but that paper references 130 “alleged incidents of physical force [in New York City] ... which warrant investigation by authorities.” (Suppressing Protest: Human Rights Violations in the U.S. Response to Occupy Wall Street (July 25, 2015), p.l, http://hrp.law.harvard.edu/criminal-justice/suppressing-protest-human-rights-violations-in-the-us-response-to-oceupy-wall-street/). Neither a newspaper report nor an academic paper reporting on incidents that ought to be investigated is a showing of anything entitled to a presumption of truth.
Id.
This Court, however, finds otherwise and concludes that Plaintiffs adequately state a Monell claim based on the City’s failure to train. Plaintiffs point to a number of cases spanning the period from 2000 to 2012 that demonstrate “a pattern and practice of constitutional abuse” involving the use of mass arrest policies and practices similar to the ones that led to their constitutional deprivations. See SAC ¶ 26. For example:
• Mandal v. City of New York, Nos. Civ. 1234, 02 Civ. 1367,2007 WL 3376897 , at *2 (S.D.N.Y. Nov. 13, 2007), where, following a trial in which “[a]pproxi-mately thirty-eight ' Plaintiffs prevailed,” a “jury found that between May 1, 2001 and July 13, 2001, the City had an unconstitutional written policy of denying persons arrested at demonstrations individual consideration for summonses and DATs”;
• MacNamara v. City of New York No. 04 Civ. 9216,2007 WL 3196295 , at *1, brought by demonstrators arrested during the 2004 RNC, and in which the Honorable James C. Francis noted that the Honorable Kenneth M. Karas stated that “one reasonable interpretation” of the deposition testimony of one of the arresting officers “is that he included false information in the narrative section of his booking report because he was instructed to do so by a Lieutenant in the NYPD Legal Bureau,” and that, “[m]ore disturbing still, [the officer’s] testimony appears to indicate that this unlawful act was not an isolated incident,”;
• Dinler,2012 WL 4513352 , at *3-12, in which the Honorable Richard J. Sullivan granted the plaintiffs’ motions for summary judgment on their false arrest claims relating to a mass arrest at the 2004 RNC;
• Osterhoudt v. City of New York, No. 10 Civ. 3173,2012 WL 4481927 , at *1-2 (E.D.N.Y. Sept. 27, 2012), in which the plaintiff alleged that he observed, on election night in November 2008, “NYPD officers picking fights and indiscriminately arresting bystanders,” and was “swept up in the mass arrests, ... charged with obstructing governmental administration, resisting arrest, and disorderly conduct and detained for 17 hours before his charges were adjourned in contemplation of dismissal”; and where the court denied defendants’ motion to dismiss the plaintiffs Monell claims, which the plaintiff supported “by citing other lawsuits against the City for mass arrests at Critical Mass bike rides, the 2004 Republican National Convention, and the World Economic Forum,” including “a number of complaints alleging that the NYPD conducted mass arrests at demonstrations and in crowd control situations, plausibly alleging a widespread departmental policy of arresting politicaldemonstrators without determining probable cause on an individual basis”;
• and more, see SAC ¶ 26.18
“[I]n the context of Rule 12, where plausibility is in issue, it is hard to ignore these case's, which suggest that the conduct complained of is not limited to the four comers of [Plaintiffs’] complaint.” Osterhoudt,
The analysis does not end here, however. As noted above, Plaintiffs must demonstrate a “direct causal link between” the alleged failure to train and their surviving claims. Plaintiffs claim that the City failed to properly train its police officers in the following eight policies and practices:
1. “The use of police resources to corral and trap perceived participants in First Amendment assemblies”;
2. “The policy and practice of failing to ensure that constitutionally meaningful and adequate dispersal orders and opportunities to disperse are given prior to effecting arrests in connection with First Amendment assemblies”;
3. “The policy and practice of treating perceived ‘groups’ of people as a ‘unit’ for ‘mass arrest’ probable cause determination purposes without ensuring that lawfully authorized and constitutionally significant notice, and a meaningful opportunity to disperse, were given and disregarded prior to treating the perceived ‘group’ as a ‘unit’ ”;
4. “The policy and practice of applying [New York Penal Law] § 240.20 (5) (Disorderly Conduct—Blocking Pedestrian or Vehicular Traffic) in connection with actual or perceived protest activity in circumstances where the person arrested neither created nor recklessly risked substantial disruption of vehicular or pedestrian traffic or other criminally significant public ramifications”;
5. “The policy and practice of applying [New York Penal Law]§ 240.20 (6) (Disorderly Conduct—Failure to Obey Lawful Dispersal Order) in connection with actual or perceived protest activity in circumstances where neither lawful dispersal orders, nor meaningful opportunities to disperse, were in fact given”;
6. “The use of arrests in lieu of individualized determinations related to ar-restees’ eligibility for releases with summonses for summons-eligible offenses in connection with perceived OWS demonstrations (the ‘No-Summons Policy’)”;.
7. “The policy and practice of assigning ‘arrest teams’ of officers who had not witnessed the conduct allegedly giving rise to the need for arrests to ‘process’ the arrests of multiple ar-restees, including by filling out NYPD paperwork and swearing out accusatory instruments containing false information”; and
8. “The policy and practice of inserting NYPD Legal Bureau and CJB agents into a special Mass Arrest Processing Plan using a centralized Mass Arrest Processing Center that manufactured false business and court records after the fact designed to give the impression that assigned arresting officers witnessed or knew things they had not, in fact, witnessed or known of.”
SAC ¶ 361. The Court finds that all but the first of these alleged policies and practices bear a direct causal link to the constitutional violations implicated in Plaintiffs’ surviving claims.
Finally, as to each of the second to eighth alleged policies and practices, Plaintiffs’ allegations give rise to the plausible inference that the City was deliberately indifferent in training its officers. As discussed above, Plaintiffs claim that these specific practices were similarly applied in other cases, spanning the 10-year period leading up to the November 17, 2011 demonstration, to falsely arrest protestors for engaging in First Amendment activity, based on inadequate dispersal orders and resulting in charges such as disorderly conduct; to deny them individual consider
Accordingly, Defendants’ motion to dismiss Plaintiffs’ § 1983 claim against the City is DENIED as to the false arrest, First Amendment, excessive detention, and right to fair trial claims.
CONCLUSION
For the reasons stated above:
• Defendants’ motion to dismiss Kush-neir’s false arrest claim is DENIED as to Maldonado and Esposito.
• Defendants’ motion to dismiss Plaintiffs’ excessive force claim is GRANTED.
• Defendants’ motion to dismiss Plaintiffs’ excessive detention claim is GRANTED as to Downes, Papóla, McCarthy, and Groht and DENIED as to Almonte, Conforti, Tverdokhleb, Maldonado, and Esposito.
• Defendants’ motion to dismiss Plaintiffs’ right to a fair trial claim is GRANTED as to Downes, Papóla, McCarthy, Groht, and Esposito, and DENIED as to Almonte, Conforti, Tverdokhleb and Maldonado.
• Defendants’ motion to dismiss Case’s First Amendment retaliation claim is GRANTED. Defendants’ motion to dismiss Kushneir, Klein and Catlin’s claim is DENIED as to Maldonado, Esposito, Conforti, McCarthy, Tverdo-khleb, and Groht.
• Defendants’ motion to dismiss Plaintiffs’ First Amendment claim based on an unconstitutional time, manner, and place restriction is GRANTED as to Maldonado, Tverdokhleb, Almonte, and Conforti, and DENIED as McCarthy, Groht, and Papóla.
• Defendant’s motion to dismiss Plaintiffs’ equal protection claim is GRANTED.
• Defendants’ motion to dismiss Plaintiffs’ due process claim is GRANTED.
• Defendants’ motion to dismiss Plaintiffs’ failure to intervene claim is GRANTED
• Defendants’ motion to dismiss Plaintiffs’ § 1983 claim against the City is DENIED as to the false arrest, First Amendment, excessive detention, and right to fair trial claims.
SO ORDERED.
Notes
. Counsel for Plaintiffs informs the Court that Case, Catlin, and Klein have withdrawn their false arrest claims, and that all four Plaintiffs have withdrawn the malicious abuse of process claims asserted in the complaint. See Oliver Decl. ¶¶ 6-7, ECF No. 63.
. The following facts are taken from the complaint and accepted as true for the purposes of this motion. See ATSI Commc'ns, Inc. v. Shaar Fund, Ltd.,
. The complaint state's that Downes’' first name is unknown. SAC ¶ 15.
. The complaint defines a DAT as "an appearance ticket issued in lieu of [more prolonged] detention, at the direction of a [NYPD] desk officer, for misdemeanors, violations, and certain Class ‘E’ felonies for hospitalized prisoners.” Id. ¶ 29.
. A court may resolve charges through an ACD with the consent of the prosecutor and the defendant. N.Y. Crim. Proc. Law § 170.55. An ACD is not a decision on the merits and is considered neither a favorable nor unfavorable disposition.
. The complaint alleges that Esposito was “the highest-ranking uniformed police officer" from about 2000 to 2013. SAC ¶¶ 22-23.
. The complaint defines a Universal Summons as “legal process issued in lieu of more prolonged detention by NYPD officers for certain violations and misdemeanors.” Id. ¶ 30.
. Although Kushneir was charged only under section 240.20(5), the offense for which a plaintiff was arrested “need not be the same as, or even ‘closely related’ to, the offense” later cited as probable cause for the arrest. Garcia v. Does,
. The complaint also alleges that Plaintiffs were detained "for the purpose of gathering additional evidence to justify the arrest,". SAC ¶ 77, but this allegation is conclusory.
. Moreover, a plaintiff’s guilty plea in the prior proceeding does not preclude tire plaintiff from pursuing a § 1983 claim based on the right to a fair trial. See Powers v. Coe,
. Catlin and Klein were charged with additional provisions as compared to Kushneir, but this does not change the analysis. In addition to also being charged with New York Penal Law section 240.20(5), Kushneir’s sole charge, Klein was charged with section 240.20(6), and Catlin was charged with sections 195.05, 240.20(6), and parading without a permit in violation of New York City Administrative Code section 10-110. The Court considered section 240.20(6) in its analysis of Kushneir’s false arrest claim, and the same analysis applies to Catlin and Klein. As for section 195.05, that provision states in relevant part that "[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.” Because there is a "dispute as to the pertinent events and the knowledge of the officers,” the Court cannot decide as a matter of law that probable cause existed to support this charge. See Weyant,
. Plaintiffs also challenge the policies and penal law provisions “to the extent the Defendants seek to construe them as strict liability offenses.” Pi. Opp. 45; see also SAC f 329 (claiming that the restrictions imposed by Defendants "[a]mounted to the imposition of strict liability on plaintiffs for participating in protected conduct.”). However, this is tantamount to Plaintiffs' contention that Defendants had "unbridled discretion" to arrest Plaintiffs under these laws and policies, and the Court does not construe this as a separate claim. See Thomas v. Chicago Park Dist.,
. In McTeman, the defendant officer, citing traffic safety, had advised plaintiff and other protestors that they were "prohibited from standing or lingering in, or ‘walking aimlessly’ through,” a public street from which they were protesting an adjacent abortion clinic. Id. at 643. The Third Circuit found that it was error for the district court to have concluded, as a matter of law, that excluding the Plaintiff from the street constituted the least restrictive means of protecting public safety. Id. at 656. Although the court did not question that traffic safety is a "significant” governmental interest, the court doubted “whether the safety issues are sufficiently defined, on the record before us, to sustain summary judgment that the restriction was 'narrowly tailored’ to that interest.” Id, The court also noted that “significant fact questions persisted]” due to "a paucity of evidence as to the safety hazards presented by the protesters' activities in the alley”; absent this information, the court was "hard pressed to conclude that [the defendant officer] selected the ‘least burdensome' alter
. Case’s guilty plea does not foreclose him from asserting this claim. See, e.g., Comite de Jornaleros de Redondo Beach v. City of Redondo Beach,
. Although Plaintiffs also allege that, under the leadership of a new mayor, the NYPD has been more accommodating of protests "far more disruptive” than the conduct Plaintiffs here were charged with, SAC ¶ 150, this allegation does not save their claim. Plaintiffs refer to the "Flood Wall Street” protests of September 2014 as a comparison, but the only differential treatment, alleged is that the City allowed the Flood Wall Street protesters to occupy the same areas in which Plaintiffs were arrested for a longer period of time, before also eventually subjecting them to mass arrests after dispersal orders. Id. ¶¶ 151, 153.
. The Supreme Court's decision in Ashcroft v. Iqbal, which imposed a limitation on supervisory liability, has "engendered conflict within [the] Circuit ábout the continuing vitality of the supervisory liability test set forth in Colon." Reynolds v. Barrett,
. The plaintiffs in Marom were represented by the same counsel as Plaintiffs here
. In addition to these cases, Plaintiffs also allege that, ás a result of the City’s mass arrest policies and practices, “the New York State Supreme Court held [the] City in contempt of court for failing to release hundreds ' of arrestees who had been detained in excess ' of 24 hours without justification for the delay, Some of whom had been detained for more , than,72 hours.” SAC ¶46, And, in another case, the New York City Criminal Court acquitted "Flood Wall Street protestors” who had been arrested after sitting in the street for over eight hours even after dispersal orders were made, finding that the police officer’s order to disperse violated the First Amendment's time, place, and manner requirements. Id. ¶ 153.
. Because the excessive force claim was dismissed due to lack of personal involvement and not because Plaintiffs were unable to state a prima facie case, the Court may also consider whether Defendants’ failure to train led to the use of excessive force. See Caraval-ho v. City of New York, No. 13 Civ. 4174,