Butler v. City of New York

559 F.Supp.3d 253

Eric BUTLER and Jacob J. Katzburg, Plaintiffs,

v.CITY OF NEW YORK; Bill de Blasio, in his personal and official capacity as the Mayor of New York City; Dermot Shea, in his personal and official capacity as Police Commissioner of the New York City Police Department; and Police Officers "John" Rodriguez (Tax: 952174), "John" Villanueva (Badge Number 27398), "John" Larkens (Badge Number 13260), Nicholas T. Bruccoleri (Tax: 960288), "John" Mejia, John Does 1-15, Sergeants "John Doe" 1-5, and Captain "John Doe," all in their personal and official capacity, Defendants.

20 Civ. 4067 (ER)

United States District Court, S.D. New York.

Signed September 8, 2021

Joseph Z. Amsel, Law Offices of Joseph Z. Amsel, New York, NY, for Plaintiffs.

Amy J. Weinblatt, Samantha Michelle Schonfeld, NYC Law Department, Office of the Corporation Counsel, New York, NY, for Defendants City of New York, Bill De Blasio, Dermot Shea.

Samantha Michelle Schonfeld, New York City Law Department, New York, NY, for Defendants Police Officer John Rodriguez, Police Officer John Villanueva, Police Officer John Larkens, Nicholas T. Bruccoleri, John Mejia.

OPINION & ORDER

Ramos, D.J.:

Eric Butler and Jacob J. Katzburg brought this suit pursuant to 42 U.S.C. § 1983, alleging that their constitutional rights were violated when they were arrested at a protest against the policies New York City Mayor Bill de Blasio implemented in response to the COVID-19 pandemic. Doc. 1. More specifically, Plaintiffs were arrested for violating an executive order that banned all "non-essential gatherings," and allege that the executive order was unconstitutional. Id. Pending before the Court is Defendants’ motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(6), and 12(b)(7). Doc. 38.

For the following reasons, Defendants’ motion to dismiss is GRANTED.

I. BACKGROUND

A. Factual Background

Now almost eighteen months since the World Health Organization characterized COVID-19 as a pandemic, and in the midst of a fourth surge in the United States, the seriousness, pervasiveness, and evolving nature of the COVID-19 pandemic is well documented. This case does, however, require the Court to recount the precautions taken by government officials at the beginning of the pandemic.

On March 7, 2020, then-Governor Andrew Cuomo declared a state of emergency due to the threat posed by COVID-19, N.Y. Exec. Order No. 202, https://www.governor.ny.gov/sites/default/files/atoms/files/EO_202.pdf, and on March 12, 2020, Mayor de Blasio declared a state of emergency in New York City, Doc. 1. ¶ 22. As the victim count climbed in the city and across the state, the Governor and the Mayor implemented a number of executive orders to combat the rise in infections. See id. ¶¶ 23–25.

Relevant here are two of the Governor's orders. First, on March 18, 2020, the Governor issued Executive Order 202.6, which imposed in-person capacity restrictions, but exempted from those restrictions "[a]ny essential business or entity providing essential services or functions." Doc. 1-6. Under that order, an "essential business or entity providing essential services or functions" is defined as:

essential health care operations including research and laboratory services; essential infrastructure including utilities, telecommunication, airports and transportation infrastructure; essential manufacturing, including food processing and pharmaceuticals; essential retail including grocery stores and pharmacies; essential services including trash collection, mail, and shipping services; news media; banks and related financial institutions; providers of basic necessities to economically disadvantaged populations; construction; vendors of essential services necessary to maintain the safety, sanitation and essential operations of residences or other essential businesses; vendors that provide essential services or products, including logistics and technology support, child care and services needed to ensure the continuing operation of government agencies and provide for the health, safety and welfare of the public.

Id. Second, on March 23, 2020, the Governor issued Executive Order 202.10, which, among other things, declared that all non-essential gatherings of individuals of any size for any reason were cancelled or postponed. N.Y. Exec. Order No. 202.10, https://www.governor.ny.gov/sites/default/files/atoms/files/EO_202.10.pdf.

The executive order directly at issue in this suit, however, is the Mayor's Emergency Executive Order 103 ("EEO 103"), which was propounded on March 25, 2020. Id. ¶ 27. EEO 103 states: "In order to avoid the mass congregation of people in public places and to reduce the opportunity for the spread of COVID-19 any non-essential gathering of individuals of any size for any reason shall be cancelled or postponed." Doc. 1-5 § 3(b). EEO 103 also incorporates any and all relevant provisions of the Governor's emergency orders, including Executive Order 202.6. Id. §§ 2(c), 4. Regarding Executive Order 202.6 specifically, EEO 103 states:

Any essential business or entity providing essential services or functions, as defined by [the Governor's] Executive Order 202.6 and guidance issued by the Empire State Development Corporation or designated as essential pursuant to any subsequent order issued by the Governor, shall not be subject to the in-person restrictions.

Id. § 2(c). The Mayor extended the ban on non-essential gatherings several times, and the ban was still in effect on May 9, 2020. See Doc. 1 ¶¶ 30–38.

That day, at approximately 1:00 p.m., Plaintiffs—both residents of New York—gathered with approximately twenty other people in City Hall Park in New York City to protest the executive orders the Mayor had issued in response to the COVID-19 pandemic. Id. ¶¶ 8–9, 46–52. According to Plaintiffs, the protestors attempted to maintain a distance of six feet between themselves at all times, and several wore face coverings. Id. ¶¶ 51–52. Plaintiffs also allege that, while the group was protesting, there were other park-goers nearby, though they were not associated with each other. Id. ¶ 53.

At approximately 1:35 p.m., the Police Defendants—that is, all Defendants except for the City of New York (the "City"), the Mayor, and Dermot Shea, the police commissioner of the New York City Police Department ("NYPD")—assembled outside of the park. Id. ¶¶ 58–59. The Police Defendants include "John" Rodriguez, "John" Villanueva, "John" Larkens, Nicholas T. Bruccoleri, "John" Mejia, and several other unnamed members of the NYPD.

After standing outside the park for several minutes, the Police Defendants then entered, forming a line that blocked off one of the entrances to the park. Id. ¶ 59. Once inside, the officers played an audio recording over a loudspeaker stating: "This is the New York City Police Department. Non-essential gatherings of any kind have been prohibited by the Governor and the Mayor. This gathering is unlawful, and you are ordered to disperse. If you fail to disperse immediately, you are subject to arrest." Id.

After playing the recording for five minutes, the Police Defendants approached Plaintiffs and the other protestors. Id. ¶ 61. Rodriguez ordered Katzburg to leave the park, to which Katzburg objected that the park was open to the public and that he was exercising his First Amendment right to freedom of assembly. Id. ¶¶ 62–63. Rodriguez, Villanueva, and Larkens then arrested Katzburg, after Defendant Sergeant John Doe 1 instructed them to do so. Id. ¶¶ 64–65. Meanwhile, the other Police Defendants continued to escort the other protestors out of the park. Id. ¶ 67. As Butler walked away from the park, Bruccoleri and Mejia arrested him. Id. ¶¶ 69–70. In total, nine protestors—including Plaintiffs—were arrested. Id. ¶ 72.

Plaintiffs were then taken by van to the NYPD's Seventh Precinct and were released from custody later that day, each with a criminal summons. Id. ¶ 74. Butler's summons stated that he was charged with "Violat[ing] The Mayor's Order" under New York City Administrative Code § 3-108. Id. ¶ 75; see also Doc. 1-19. Katzburg's summons stated that he was charged with that same offense and with "Discon: Failure to Disperse," pursuant to New York Penal Law § 240.20(6). Doc. 1 ¶ 76; see also Doc. 1-20.

The Mayor extended the ban on all non-essential gatherings twice more, Doc. 1 ¶¶ 39–40, but on May 24, 2020, he modified the ban to permit non-essential gatherings of ten or fewer individuals, so long as those individuals adhered to applicable social distancing and cleaning protocols. Id. ¶ 41; see also Doc. 1-18 § 2. The capacity limits were incrementally increased until, on June 15, 2021, all capacity restrictions in response to the COVID-19 pandemic were lifted. Although the state has recently entered a fourth surge, in large part due to the Delta variant, no capacity restrictions have been reinstated.

B. Procedural History

Plaintiffs filed the instant suit on May 27, 2020. Doc. 1. Plaintiffs assert that Defendants’ enforcement of EEO 103—along with all subsequent amendments of the order¹ —violated their First Amendment rights to freedom of speech, freedom of assembly, and right to petition the government for redress of grievances; that EEO 103 is void for vagueness and therefore violates the due process clause of the Fourteenth Amendment; that they were falsely arrested in violation of the Fourth Amendment; that the Doe Defendants failed to intervene when they were falsely arrested; and that the City is liable for the aforementioned conduct pursuant to Monell v. Department of Social Services , 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).

On June 1, 2020, Plaintiffs filed a motion for a temporary restraining order, seeking to enjoin the enforcement of EEO 103. Doc. 8. At a teleconference on June 4, 2020, the Court denied Plaintiffs’ request. Docs. 18 and 20.

On December 7, 2020, Defendants filed the instant motion. Doc. 38.

II. LEGAL STANDARD

A. Federal Rule of Civil Procedure 12(...