Second Amended Complaint - Section 1

Second Amended Complaint - Section 1











as Class Representatives
on behalf of themselves and others
similarly situated



in his official and individual capacities 


In his official and individual capacities

JANE and JOHN DOES 1 – 40
In their official and individual capacities



(Class action constitutional and civil rights lawsuit)

 1. As a new protest movement for social and economic justice sweeps New York City and the country, the Police Department of the City of New York (NYPD) has engaged in an unconstitutional effort to disrupt and suppress the ability of the people to come together and advocate for social change using the time-honored methods of mass assembly and collective action.

2. On October 1, 2011, the NYPD engaged in a premeditated, planned, scripted and calculated effort to sweep the streets of protesters and disrupt a growing protest movement in New York. This lawsuit seeks to stop the NYPD from taking illegal actions against mass assembly protest.

3. As seen in the movements for social change in the Middle East and Europe, all movements for social justice, jobs, and democracy need room to breathe and grow and it is imperative that there be a halt to law enforcement actions used to shut down mass assembly and free expression of the people seeking to redress grievances.

4. On October 1, 2011, the NYPD engaged in a mass false arrest of approximately 700+ persons who participated in, or were in proximity to, a demonstration and march crossing over the Brooklyn Bridge. 

5. After escorting and leading a group of demonstrators and others well out onto the Brooklyn Bridge roadway, the NYPD suddenly and without warning curtailed further forward movement, blocked the ability of persons to leave the Bridge from the rear, and arrested hundreds of protesters in the absence of probable cause. This was a form of entrapment, both illegal and physical. 

6. That the trap-and-arrest mass arrest was a command-level-driven intentional and calculated police operation is evidenced by the fact that the law enforcement officials who led the demonstration across the bridge were command officials, known as “white shirts.” 

7. That the trap-and-arrest mass arrest was an intentional and calculated police operation is also evidenced by the charade the police conducted – and themselves duly videotaped -- of speaking inaudibly into a bullhorn that could not be heard mere feet away from the officer, given the ambient noise. 

8. Although a TARU officer standing right next to an officer with a handheld bullhorn captured the warnings on video, no fair notice was heard or received by the hundreds in the class and thousands in the march, given the ambient noise and their distance. The bullhorn was inaudible mere feet away. See Exh. F. (video footage from base of bridge showing bottleneck at base of pedestrian walkway, crowd waiting to enter onto pedestrian walkway, officer with bullhorn is inaudible from mere feet away, officers and command staff turning and leading demonstrators onto roadway)

Exhibit F from Partnership for Civil Justice on Vimeo.

9. The NYPD knew no audible communication was given. The NYPD also knew that the Constitution requires that any ostensible command must be heard by those who are expected to be bound by it. 

10. Instead, the NYPD engaged in a performance, videotaped it, and sprang their trap. They then set their PR machine into motion, widely distributing edited videos of events to spin a false narrative of events to the public and media. 

11. The NYPD, as a matter of policy and practice, engages in unconstitutional tactics to disturb, disrupt, penalize, infringe upon and criminalize constitutionally protected speech and assembly. 

12. The NYPD’s trap and detain actions interfere with freedom of association, assembly, speech and free movement. 

13. The NYPD employs unconstitutional tactics to trap protesters, and others in physical proximity, on all sides, seize, detain and arrest those trapped/seized. These actions are accomplished through force and threat of force in order to deprive, interfere with, and deter the exercise of constitutionally protected rights. 

14. Trap and arrest involves the use of police lines against targeted protests to trap protesters and others, in the absence of warnings or orders calculated to reach those subject to arrest. As a generalized trap without warning, the tactic captures persons indiscriminately and without regard to the existence of particularized probable cause to arrest. 

15. The trap and arrest tactic deprives those arrested of fair notice that they may be subject to arrest and does not provide any opportunity to comply with any directive. In short, persons conforming their conduct to the law cannot avoid being caught in a mass false arrest. 

16. The conduct challenged herein is neither aberrational nor the consequence of overzealous but well-intentioned law enforcement. It is the implementation of a plan to disrupt political assembly and activities. The October 1, 2011 mass arrest was conducted just 13 days after the beginning of the Occupy Wall Street protests that were rapidly growing. 

17. When named plaintiff BECKER asked why the group was being arrested, one officer explained that they were being arrested because otherwise “you’d go right back down there.” When BECKER responded that it was not illegal to be demonstrating as part of Occupy Wall Street, the officer said that if it was up to her she would not have arrested them, but “if we let you go you will just keep protesting.” 

18. When plaintiff REGAN was at the precinct being processed for release, a police officer stated, “next time you’ll think twice about going out to protest.” 

19. The NYPD not only falsely arrested hundreds in a mass violation of Fourth Amendment rights, it illegally terminated demonstration activities in a mass violation of First Amendment rights. 

20. The NYPD took a spirited and moving demonstration and sought to extinguish it. A protest march is a moveable demonstration engaging with the public as it proceeds, in a pristine and classic form of democratic grassroots action and assembly. As a march continues it collects energy, collects participants, absorbing those who see it and hear it going by, who are moved by the political message and want to make common cause and join in. 

21. The NYPD terminated the march, the message, the opportunity to communicate, and the opportunity for people to join together at that moment. The NYPD conducted a mass false
arrest and extinguished the demonstration activity in an attempt to stop and prohibit further growing democratic and political collective action.

22. These unconstitutional actions also send a threatening message to the public that may be interested in making common cause with the political actions. That message is that free speech activities are criminalized by the police department and that joining in lawful First Amendment protected activities comes at the risk of police violence and false arrest.

23. These unconstitutional actions create a substantial chilling effect and deterrent to First Amendment protected activity as they burden free speech activities with the risk of arrest, of being wrongfully subject to the criminal process of the city, of being threatened with physical harm by the police, being bound with handcuffs and having one’s identification and association with a demonstration be collected and recorded by the police and transferred to federal and other law enforcement authorities for data warehousing and collection.

24. This police conduct is anathema to democracy. These blatantly unconstitutional tactics have been ratified by the highest policy makers from the Chief of Police to the Mayor of New York City. Mayor Michael Bloomberg stated of the October 1 mass arrest, “The police did exactly what they were supposed to do.”

25. This complaint seeks, in addition to monetary compensation, injunctive relief enjoining defendants from engaging in the challenged conduct in the future, an order nullifying the arrests, and expungement of all arrest records.


26. This civil rights action is brought pursuant to 42 U.S.C. § 1983 and § 1988. The court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 (Federal Question), 28 U.S.C. § 1343(3) and (4) (Civil Rights), 28 U.S.C. § 1332(d)(2) (Diversity of Citizenship; Class Actions) and 28 U.S.C. § 1367 (Supplemental Jurisdiction).

27. The amount in controversy exceeds the sum or value of $5,000,000. On information and belief, the percentage of putative class members who reside outside of New York State is greater than one-third.

28. Plaintiffs’ claims for declaratory and injunctive relief are authorized by 28 U.S.C. §§2201 – 2202 and Fed.R.Civ.P. 57.


29. Venue is proper in the United States District Court for the Southern District of New York pursuant to 28 U.S.C. § 1391 as the municipal defendant and is deemed to reside therein, defendant BLOOMBERG resides therein, and as a substantial part of the events or omissions giving rise to the claims occurred therein.


Named Plaintiffs

30. Plaintiff KARINA GARCIA is a public high school teacher and resides in Chelsea in New York City.

31. Plaintiff BENJAMIN BECKER is an adjunct instructor at the City College of New York and a graduate student at the CUNY Graduate Center and resides in Chelsea in New York City.

32. Plaintiff MARCEL CARTIER is a student at Bronx Community College, a hip hop artist, and community activist and resides in the Bronx, New York.

33. Plaintiff Dr. MICHAEL CRICKMORE is a neuroscientist at a research university in New York City, where he resides.

34. Plaintiff BROOKE FEINSTEIN is a resident of Iowa City, Iowa and on October 1, 2011 was in New York City on vacation.

35. Plaintiff YARI OSORIO is an unemployed college graduate looking for work, and resides in Queens, New York.

36. Plaintiff YAREIDIS PEREZ is an administrative assistant and events coordinator at a museum in New York City, and resides in Jersey City, New Jersey.

37. Plaintiff CASSANDRA REGAN is a recent graduate with a Masters degree in early childhood education and a community organizer and resides in Queens, New York.

38. Plaintiff TYLER SOVA is a social worker residing in Brooklyn, New York.

39. Plaintiff STEPHANIE JEAN UMOH is a college graduate and aspiring actress residing in Harlem in New York City.

40. Each of the above-referenced plaintiffs was peacefully and lawfully participating in the demonstration and march when the police led, escorted and permitted the march onto the Brooklyn Bridge roadway.

41. None of the plaintiffs heard warnings or orders to not proceed upon the bridge roadway.

42. Each understood their passage upon the roadway to be permitted by police.

43. After leading the demonstration well out onto the Brooklyn Bridge, police without cause, notice and opportunity to comply with any order, trapped and arrested each plaintiff, boxed each plaintiff in without avenue of exit, and falsely detained and arrested each plaintiff in the absence of probable cause. Named and Unnamed Defendants

44. Defendant MICHAEL R. BLOOMBERG is the Mayor of New York City and the chief policymaker for the CITY OF NEW YORK and its departments and agencies, including the NEW YORK CITY POLICE DEPARTMENT. Mayor BLOOMBERG has caused and/or  approved and/or ratified the unconstitutional conduct challenged herein. He is sued in his official and individual capacities.

45. Defendant CITY OF NEW YORK is a municipal corporation within the State of New York.

46. Defendant RAYMOND W. KELLY is the Commissioner of the New York City Police Department, which is an agency of the City of New York. KELLY is a policymaker for the CITY of NEW YORK and the NEW YORK POLICE DEPARTMENT. Commissioner KELLY has caused and/or approved and/or ratified the unconstitutional conduct challenged herein. He is sued in his official and individual capacities.

47. Defendants JOHN or JANE DOES 1 – 30 are unidentified New York City police officials, officers or command staff who caused or did arrest the plaintiff class. These as-yet unidentified defendants engaged in the mass arrest notwithstanding the absence of probable cause or lawful justification. These defendants knew that the NYPD had permitted and/or conveyed permission to the marchers to conduct their march and, ultimately, to be upon the bridge roadway. These defendants knew that police had escorted and led marchers onto the roadway and then, minutes later, arrested the plaintiff class for being present upon the roadway onto which police had just led and escorted them. These defendants are sued in their individual and official capacities.

48. Defendants JOHN or JANE DOES 31 – 40 are unidentified law enforcement or security officials, officers or agents who, although not employed by the NYPD, did engage in joint action with the NYPD and its officials, officers and agents to cause the mass false arrest of the plaintiff class. 


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