McLennon v. City of N.Y.

171 F.Supp.3d 69

Winston McLennon, Karlick Price, and Stephen Augustine, individually and on behalf of a class of all others similarly situated, Plaintiffs,

v.The City of New York, New York City Police Commissioner William J. Bratton, New York City Police Transportation Bureau Chief Thomas Chan, Former New York City Police Transportation Bureau Chief James Tuller, New York City Police Highway Patrol Commander Paul Ciorra, Highway Patrol Unit 3 Officer Keith Penney (Shield No. 16412), Highway Patrol Unit 3 Officer Nicholas Konkowski (Shield No. 6981), Highway Patrol Unit 3 Officer John Loukopoulos (Shield No. 12569), Highway Patrol Unit #3 Officer Jordan Bistany (Shield No. 22702), Highway Patrol Unit #3 Officer George Luti (Shield No. 26504), New York City Police Officials Jane and John Does 1-20 and Highway Patrol Officers Jane and John Does 1-20, Defendants.

14–CV–6320 (MKB)

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

Signed March 18, 2016

Jane Fisher-Byrialsen, Kaitlin Fleur Nares, Fisher & Byrialsen PLLC, Joshua S. Moskovitz, Karen L. Dippold, Myron Beldock, Beldock Levine & Hoffman LLP, New York, NY, for Plaintiffs.

Ben Kuruvilla, New York City Law Department, New York, NY, for Defendants.

MEMORANDUM & ORDER

MARGO K. BRODIE, United States District Judge:

Plaintiffs Winston McLennon, Karlick Price and Stephen Augustine bring this action, on behalf of themselves and a putative class, against the City of New York, New York City Police Department (“NYPD”) Commissioner William J. Bratton (“Commissioner Bratton”), New York City Police Transportation Bureau (“NYCTB”) Chief Thomas Chan (“Chief Chan”), Former NYCTB Chief James Tuller, New York City Police Highway Patrol Commander Paul Ciorra (“Commander Ciorra”), Highway Patrol Unit 3 Officers Keith Penney, Jordan Bistany, George Luti, Nicholas Konkowski and John Loukopoulos, and other unnamed NYPD and Highway Patrol officials and officers, alleging that Defendants sanctioned, implemented and executed suspicionless searches and seizures at de facto vehicle checkpoints on New York City roadways, in violation of 42 U.S.C. § 1983.¹ (Am. Compl. ¶¶ 1-2, Docket Entry No. 34.) Plaintiffs purport to represent a class seeking (1) compensatory and punitive damages and (2) equitable relief. (Id. ¶ 13.) Plaintiffs seek compensatory and punitive damages for their unlawful seizures, false arrests and malicious prosecutions arising from the suspicionless vehicle checkpoints. (Id. ¶ 15.) Plaintiffs also seek a declaration that the suspicionless vehicle checkpoints violate the Fourth and Fourteenth Amendments and a class-wide injunction enjoining Defendants from continuing such “policies, practices, and/or customs.” (Id. ¶ 14.) Defendants move to dismiss all of Plaintiffs' claims, except for Price's false arrest claim. (Defs. Mot. to Dismiss, Docket Entry No. 50; Defs. Mem. in Support of Defs. Mot. (“Defs. Mem.”), Docket Entry No. 52.) For the reasons set forth below, the Court grants in part and denies in part Defendants' motion to dismiss.

I. Background

The allegations in the Amended Complaint are assumed to be true for the purposes of this motion. Plaintiffs allege that, while travelling on New York City highways, NYPD officers stopped Plaintiffs without any individualized suspicion of wrongdoing at de facto vehicle checkpoints “through the use of 'stand out' or 'step out' enforcement methods” (“Step-Out Enforcement Checkpoints”). (Am. Compl. ¶¶ 12, 61-63.) Plaintiffs and a subclass of the putative class members allege that, after being stopped, they were seized, detained and maliciously prosecuted.² (Id. ¶ 24.) Plaintiffs allege that Defendants Penney, Bistany, Luti, Konkowski and Loukopoulos, along with John and Jane Doe NYPD and Highway Patrol officials and officers (collectively the “Individual Defendants”), carried out the suspicionless checkpoints and were inadequately trained, disciplined or supervised by Chief Chan, Tuller and Commander Ciorra (the “Supervisory Defendants”). (Id. ¶¶ 149-155.) Additionally, Plaintiffs contend that these constitutional violations were directly and proximately caused by the policies, practices “and/or” customs, devised, implemented and enforced by the City of New York, Commissioner Bratton, Chief Chan and Commander Ciorra (collectively the “Municipal Defendants”).³ (Id. ¶¶ 14, 149, 157.)

a. The October 28, 2011 incident involving McLennon

On October 28, 2011, at approximately 2:55 AM, McLennon was driving on the Grand Central Parkway towards a service ramp connecting to the Long Island Expressway. (Id. ¶¶ 70-71.) The service ramp was a sharply curved, single-lane road with minimal lighting, thus limiting the ability of McLennon and other drivers to see what may be occurring ahead. (Id. ¶ 73.) As he rounded the curve, McLennon was forced to rapidly decelerate upon seeing Defendant Penney and a yellow taxi cab obstructing the road. (Id. ¶¶ 74, 77.) According to Plaintiff, Defendant Konkowski was sitting in the yellow taxi cab. (Id. ¶ 74.) No cones, caution tape, rope, signs or flares had been set up to alert motorists to the obstruction. (Id. ¶ 75.) Because of the obstruction, McLennon was forced to stop his vehicle. (Id. ¶ 77.)

At that time, Penney approached the vehicle and asked McLennon “a series of targeted questions,” including whether he had been drinking. (Id. ¶¶ 76, 78.) While he questioned McLennon, Penney shined his flashlight through the vehicle's windows in an attempt to see what was inside. (Id. ¶ 76.) Thereafter, Penney ordered McLennon to exit the vehicle and subjected him to a search and a portable Breathalyzer test. (Id. ¶ 80.) At some point, McLennon was arrested, and he was later arraigned for violations of the New York Vehicle and Traffic Law. (Id. ¶ 83.) The criminal complaint against McLennon was signed by Penney and indicated that McLennon had been stopped because he was driving with air fresheners hanging from his rear view mirror in violation of the Vehicle and Traffic Law. (Id. ¶ 84.) McLennon was released on his own recognizance. (Id. ¶ 85.) Following his arrest, he appeared in court multiple times. (Id. )

On July 21, 2012, after a suppression hearing in McLennon's criminal case, the Honorable Stephanie Zaro of the New York City Criminal Court, Queens County, issued a decision suppressing all evidence against McLennon. (Id. ¶¶ 86, 88.) Judge Zaro held that Penney and Konkowski's operation on the service ramp constituted a checkpoint subject to particularized procedures that the officers did not follow. (Id. ¶ 88.) Judge Zaro also found Penny's testimony that he was able to see six air fresheners hanging from McLennon's rear view mirror from fifty feet away to be incredible, and that the officers lacked a legal basis to stop and arrest McLennon. (Id. ¶ 87.) Thereafter, on November 21, 2012, the case against McLennon was dismissed and sealed. (Id. ¶ 89.)

b. The NYPD and Highway Patrol Unit 3 receive notice of multiple unlawful checkpoints

A month prior to Judge Zaro's decision suppressing evidence in McLennon's case, another judge on the New York City Criminal Court, Queens County, also found, like Judge Zaro, that NYPD officers deployed unlawful vehicle checkpoints in two criminal cases involving vehicle stops at the same service ramp used by McLennon. (Id. ¶ 91.) In June of 2012, Judge Michael Yavinsky suppressed evidence in People v. Nandlall , Docket No. 2011QN029355 (June 14, 2012) and People v. Rakitzis , Docket No. 2012QN000287 (June 27, 2012), finding that NYPD officers had used an unlawful vehicle checkpoint to stop the drivers on the service ramp in violation of the Fourth Amendment.⁴ (Am. Compl. ¶ 91.) On August 16, 2012, employees of the New York Legal Aid Society served the decisions in McLennon and Rakitzis on the NYPD and on Highway Patrol Unit 3. (Id. ¶ 93.)

Thereafter, two more judges on the New York City Criminal Court, Queens County, issued decisions suppressing evidence obtained from unlawful checkpoints on the service ramp. (Id. ¶¶ 91-92.) First, on February 13, 2013, Judge Mary O'Donoghue suppressed evidence in People v. Perez , Docket No. 2011QN056990 (Feb. 13, 2013). (Am. Compl. ¶ 91.) A year later, on March 12, 2014, Judge David M. Hawkins suppressed evidence in People v. Garcia , Docket No. 2011WN043391 (Mar. 12, 2014). (Am. Compl. ¶ 91.)

c. June 13, 2014 incident involving Price

In the early morning hours of June 13, 2014, Plaintiff Price was driving on the Grand Central Parkway as he approached the service ramp to the Long Island Expressway. (Id. ¶¶ 96-97.) Given the curvature of the road, trees and limited lighting, Price, like McLennon, was unable to see ahead on the service ramp. (Id. ¶ 99.) As he rounded the curve, Price sharply decelerated when he saw three vehicles stopped ahead of him on the service ramp. (Id. ¶ 100.) One of those vehicles was an unmarked burgundy-colored vehicle that was protruding into the roadway. (Id. ) Plaintiffs allege that Defendant John Doe Officer # 1 was sitting inside the unmarked vehicle. (Id. ) There were no cones, caution tapes, ropes, signs or flares alerting traffic to the burgundy colored vehicle. (Id. ¶ 101.)

After Price slowed down, Defendant Bistany, who was also present at the scene, approached the vehicle with his flashlight and asked for Price's driver's license. (Id. ¶¶ 102-105.) Thereafter, Bistany asked Price to pull over and began questioning him about whether he had been drinking. (Id. ¶¶ 106-107.) At that time, Bistany looked through Price's windows with his flashlight, attempting to see the contents of the vehicle. (Id. ¶¶ 107-108.) After ordering Price to exit the vehicle, Bistany performed a Breathalyzer test on Price, which returned a result of .000%. (Id. ¶ 109.) Price was then taken to the 112th Precinct for a “chemical test.” (Id. ¶ 112.) After Price refused the chemical test, he was arrested and subsequently arraigned for violations of the Vehicle and Traffic Law. (Id. ¶¶ 112-14.)

The criminal complaint filed against Price was signed by...