Jeffery v. The City of New York

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

LAMEL JEFFERY, THADDEUS BLAKE, and

CHAYSE PENA, on behalf of themselves and

others similarly situated, MEMORANDUM & ORDER

20-CV-2843 (NGG) (RML)

Plaintiffs,

-against-

THE CITY OF NEW YORK, ERIC ADAMS,

Mayor of New York City, in his Official

Capacity, BILL DE BLASIO, Former Mayor of

New York City, Individually, ANDREW

CUOMO, Former Governor of the State of New

York, Individually, and P.O.s JOHN DOE #1-

50, Individually and in their Official Capacity,

(the name John Doe being fictitious, as the true

names are presently unknown),

Defendants.

NICHOLAS G. GARAUFIS, United States District Judge.

Plaintiffs bring this putative class action against New York City

(the “City”) and its current Mayor Eric Adams, and former Mayor

Bill de Blasio (individually, “current Mayor” and “former Mayor,”

and, together with the City, the “City Defendants”); the former

Governor of New York State, Andrew Cuomo (the “former Gov-

ernor’); and 50 unnamed New York Police Department officers,

challenging the constitutionality of the temporary curfew im-

posed in New York City in early June 2020. The former Governor

filed a motion to dismiss the complaint in its entirety. (Gov.’s

Mot. to Dismiss (Dkt. 24); Gov.’s Mem. in Supp. of Mot. to Dis-

miss (“Gov.’s Mot.”) (Dkt. 25); Reply in Supp. of Gov.’s Mot

(“Gov.’s Reply”) (Dkt. 28).) The City Defendants filed a partial

motion to dismiss. (City Defs.’ Mot. to Dismiss (Dkt. 19); City

Defs.’ Mem. in Supp. of Mot. to Dismiss (“City’s Mot.”) (Dkt. 20);

Reply in Supp. of City’s Mot. (“City’s Reply”) (Dkt. 23).) The

court held oral argument via videoconference on April 21, 2021.

(Apr. 21, 2021 Min. Entry.)

For the reasons explained below, the former Governor’s motion

to dismiss the complaint and the City Defendants’ partial motion

to dismiss certain claims against them are GRANTED.

I. BACKGROUND

The following facts are taken from the complaint, which the court

accepts as true when deciding a motion to dismiss. See Harris v.

Mills, 572 F.3d 66, 71 (2d Cir. 2009).

A. The New York City Curfew

Beginning in late May 2020, demonstrations against police bru-

tality and racial discrimination arose in New York City and

around the globe, triggered in large part by the murder of George

Floyd by former Police Officer Derek Chauvin on May 25, 2020.

(Compl, { 10-11.) The demonstrations in New York City were

predominantly peaceful, with some isolated incidences of vio-

lence, looting, and property damage. Ud. {| 13-16.)

On June 1, 2020, in response to the widespread protests, a

citywide overnight curfew was imposed. (Id. 17-18; see also

June 1, 2020 Exec. Order No. 117 (Dkt. 25-1).) The initial cur-

few, which, with certain exceptions, barred individuals from

leaving their residences, applied from 11:00 p.m. on June 1 to

5:00 a.m. on June 2. (Compl. § 17-18.)

On June 2, a second order was issued, which extended the over-

night curfew to remain in place until June 7, and which

expanded the applicable hours to last from 8:00 p.m. each night

to 5:00 a.m. each morning. (id. 4 19.) The curfew was repealed

on June 6, one day prior to its anticipated expiration. (id. { 19

n.1.)

B. The Parties

Defendants are the City of New York, its former Mayor Bill de

Blasio, individually, and current Mayor Eric Adams, in his official

capacity; the former Governor of the State of New York Andrew

Cuomo in his individual capacity; and 50 unnamed New York

Police Department (“NYPD”) officers. Ud. 4 2.)

Each named Plaintiff is a New York City resident who was ar-

rested for being outside of his residence while the curfew was in

effect. Plaintiffs also allege that, in total, approximately 1,349 in-

dividuals were arrested and summonsed for violating the curfew,

and that those arrests were made in a racially disparate manner.

(id. *{ 54, 58, 66.) Plaintiffs further allege that the curfew re-

sulted in the false imprisonment of millions of New Yorkers by

confining them to their homes while it was in effect. Ud. 99 62-

63, 67.)

1. Lamel Jeffery

On June 4, Plaintiff Lamel Jeffery was attending a barbeque at

Eastern Parkway and Franklin Avenue in Brooklyn, New York.

(id. 1 99-100.) Around 10:00 p.m., he was approached by NYPD

officers, who directed him to enter the adjacent building. Ud. 4

100.) Jeffery, who lived around the corner, responded that he

would go home and began walking toward his residence. Ud.

100-102.) The officers then “aggressively stopped and tackled

him,” and “verbally, physically, and mentally abused” him. (id. {

103.) After being taken into custody and held for ten hours, he

was released without charges. Ud. □ 104.)

1 The Complaint asserted claims against Governor Cuomo in his individual

and official capacities. On November 23, 2020, the parties entered a stip-

ulation dismissing, with prejudice, the official capacity claims against the

former Governor. (Stip. (Dkt. 18).)

2. Thaddeus Blake

On June 5, Plaintiff Blake was outside of his residence near 350

East 143 Street, in Bronx County, New York. Ud. 99 105-106.) At

approximately 8:39 p.m., he was approached by NYPD officers

who directed him to enter the building. Ud. { 106.) He replied

that he would retrieve his phone, which was charging nearby,

and then would go inside. (id. {{ 106-107.) The officers then

“ageressively approached and seized him without probable

cause, slamming him to the ground and aggressively handcuffing

him behind his back.” Ud. 4 108.) He was taken into custody and

held for five hours before he was released with a criminal sum-

mons, which Plaintiffs allege will be dismissed in its entirety. Ud.

{ 110-11.)

3. Chayse Pena

On June 5, Plaintiff Pena was in his car at West 49th Street and

Ninth Avenue in Manhattan. Cd. { 112.) He was stopped by sev-

etal NYPD officers at approximately 10:00 p.m. Gd. {9 113-14.)

He explained to the officers that he lived nearby and was looking

for parking. (id.) The officers then searched his car and placed

him in restraints with his arms behind his back. Ud. 4 115.) He

was taken into custody and held for four hours before he was

released with a criminal summons, which Plaintiffs allege will be

dismissed in its entirety. Ud. 117-18.)

Il. LEGAL STANDARD

“To survive a motion to dismiss, a complaint must contain suffi-

cient factual material, accepted as true, to ‘state a claim to relief

that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)).* “A claim has facial plausibility when the plaintiff

2 When quoting cases, and unless otherwise noted, all citations and quota-

tion marks are omitted, and all alterations are adopted.

pleads factual content that allows the court to draw the reasona-

ble inference that the defendant is liable for the misconduct

alleged.” fd. “In deciding a motion pursuant to Rule 12(b}(6), the :

Court must liberally construe the claims, accept all factual alle-

gations in the complaint as true, and draw all reasonable

inferences in favor of the plaintiff.” Brown v. Omega Moulding

Co., No. 13-cv-5397 (SJF) (ARL), 2014 WL 4439530, at *2

(E.D.N.Y. Sept. 9, 2014) (citing Aegis Ins. Services, Inc. vy. 7 World

Trade Co., L.P., 737 F.3d 166, 176 (2d Cir. 2013)). However,

“mere labels and conclusions or formulaic recitations of the ele-

ments of a cause of action will not do; rather, the complaint’s

factual allegations must be enough to raise a right to relief above

the speculative level.” Arista Records, LLC v. Doe 3, 604 F.3d 110,

120 (2d Cir, 2010). “In assessing the legal sufficiency of a claim,

the court may consider those facts alleged in the complaint, as

well as documents that the plaintiffs either possessed or knew

about and upon which they relied in bringing the suit.” Patane v.

Clark, 508 F.3d 106, 112 (2d Cir. 2007). The court may also take

judicial notice of media coverage related to the allegations in the

Complaint. See 421-A Tenants Ass’n v. 125 Court St. LLC, 760 Fed,

App’x. 44, 49 n.4 (2d Cir. 2019).

Ill. THE FORMER GOVERNOR’S MOTION TO DISMISS

Plaintiffs assert constitutional claims against the former Gover-

nor, in his individual capacity, under 42 U.S.C. § 1983. He argues

that all claims against him should be dismissed because the com-

plaint fails to plead his personal involvement in the alleged

wrongdoing. The court agrees.

A. Applicable Law

To state a plausible claim for relief under § 1983, a plaintiff must

plead “the elements of the underlying constitutional violation di-

rectly against the official.” Tangreti v. Bachmann, 983 F.3d 609,

620 (2d Cir. 2020). This standard requires the plaintiff to plead

“defendants personal involvement in the alleged constitutional

deprivation” with specific factual support. Grullon v. City of New

Haven, 720 F.3d 133, 138 (2d Cir. 2013); Williams v. City of New

York, 2005 WL 2862007, at *3 (S.D.N.Y. Nov. 1, 2005). Personal

involvement may be established by pleading that the defendant

directly participated in the challenged conduct, or by alleging

that:

(1) the defendant participated directly in the alleged consti-

tutional 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 com-

mitted the wrongful acts, or (5) the defendant exhibited

deliberate indifference to the rights of inmates by failing to

act on information indicating that unconstitutional acts were

occurring.

Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir, 1995).

Moreover, “[p]leadings that do not differentiate which defendant

was involved in the unlawful conduct are insufficient to state a

claim.” Ying Li v. City of New York, 246 F. Supp. 3d 578, 598

(E.D.N.Y. 2017) (citing Wright v. Orleans Cnty., No. 14-cv-

0622A, 2015 WL 5316410, at *13 (W.D.N.Y. Sept. 10, 2015) Cn

a § 1983 case, “[glroup pleading is insufficient for purposes of

Rule 8(a)(2) [of the FRCP] which requires a short and plain

statement of the claim showing that the pleader is entitled to re-

lief.”).)

B. Discussion

Plaintiffs fail to plead the former Governor’s personal involve-

ment in the allegedly wrongful conduct. The complaint, which is

183 paragraphs long, references former Governor Cuomo in only

three paragraphs, alleging that:

Bill de Blasio, Andrew Cuomo, the City of New York... , the

New York City Police Department (“NYPD”), and New York

City Police Officers unlawfully imprisoned an entire City by

legally prohibiting individuals from leaving their homes for

any lawful purpose during certain hours of the day/night

and/or lawfully exercising their freedom of movement, free-

dom of speech, their right to equal protection under the law

and their right to be free from search, seizure, and arrest in

the absence of probable cause in violation of the U.S. Consti-

tution,

(Compl. 4 2);

At all relevant times defendant ANDREW CUOMO was the

Governor of the State of New York and, as such, was a ‘poli-

cymaker’ who influenced, directed, made and enforced the

Curfew Orders and policies that are the subject of this action,

and who acted in his capacity as Governor, within the scope

of his employment as such, and under color of state law,

(id. { 83); and

The acts complained of were carried out by the aforemen-

tioned individual defendants and subordinate NYPD officers

in their capacities as police officers and officials pursuant to

the customs, policies, usages, practices, procedures, and

rules of the City of New York and the New York City Police

Department, all under the supervision of defendants

DEBLASIO and CUOMO and other ranking officers of said

department,

(id. { 170) (emphases in original).

The complaint fails to distinguish what, if anything, former Gov-

ernor Cuomo allegedly did to enact, implement, or enforce the

allegedly unconstitutional curfew. And to the extent that it points

to the state as a higher authority or incorporates, by reference,

the former Governor’s press release concerning the curfew, the

allegations against the former Governor remain inadequate. See

Ying Li, 246 F. Supp. 3d at 599 (“[T]he mere listing of [defend-

ants] as supervisors in a press release is insufficient to create an

inference of personal involvement absent further allegations.”);

see also Colon, 58 F.3d at 873-74 (“The bare fact that [the de-

fendant] occupies a high position in [] New York . . . is

insufficient to sustain [plaintiffs] claim.”). The undifferentiated

group pleadings in the Complaint are inadequate to allege either

direct participation or policy-making involvement by the former

Governor in the alleged violations. All claims against the former

Governor are therefore dismissed.

IV. THE CITY DEFENDANTS’ MOTION TO DISMISS

Plaintiffs claim, inter alia, that the curfew unconstitutionally bur-

dened their fundamental rights to freedom of movement and

freedom of speech, and that it violated Fourth Amendment pro-

tections against false arrest and false imprisonment. The City

Defendants move to dismiss most of Plaintiffs’ claims against

them,° arguing that the curfew was lawful on its face and that

Plaintiffs’ arrests were therefore supported by probable cause.

(See City’s Mot. at 5-19.) The City Defendants also seek dismissal

of the claims against the former Mayor in his individual capacity

3 Plaintiffs also claim that the curfew was selectively enforced in violation

of their constitutional rights. (Compl. \{ 4, 58-61.) In support of that claim,

they allege that 70% of the curfew arrests and summonses were issued to

Black and minority New Yorkers—over twice as many as for white New

Yorkers, although Black and minority New Yorkers comprise only 40% of

the City’s population. (7d. 4 59.) The City Defendants do not challenge this

claim. (City’s Reply at 1 n.1.} Nor do they challenge Plaintiffs’ municipal

liability claims against the City.

on qualified immunity grounds and for failure to allege his per-

sonal involvement in executing the curfew. (See id. at 19-22.)

A. Standard of Review

When considering whether a government action unconstitution-

ally burdens a movant’s rights, the court first “ascertain[s] the

appropriate level of scrutiny” to apply. Ramos v. Town of Vernon,

353 F.3d 171, 174 (2d Cir. 2003). The City Defendants contend

that the curfew was a valid exercise of emergency power under

the standard described in United States v. Chalk, 441 F.2d 1277

(4th Cir. 1971), cert. denied, 404 U.S. 943 (1971), while Plaintiffs

argue that the curfew was subject to—and unsustainable un-

der—strict scrutiny review. In the alternative, Plaintiffs argue

that, if the court were to accept the City Defendants’ proposed

standard, the question of whether an emergency existed is a fac-

tual dispute which requires discovery and which cannot be

resolved on a motion to dismiss. As explained below, the court

concludes that heightened scrutiny applies and that the curfew

was valid under that review.

1. The Tiers of Scrutiny

In general, laws that do not discriminate based on membership

in a suspect or quasi-suspect class and that do not burden funda-

mental or important rights are subject to rational basis review.

See Ramos, 353 F.3d at 174-75. “A law will survive this level of

scrutiny unless the plaintiff proves that the law’s class-based dis-

tinctions are wholly irrational.” Id. at 175.

Intermediate scrutiny—a more searching standard—applies to

laws that discriminate based on membership in a quasi-suspect

class or that burden an important, though not constitutional,

right. See United States v. Coleman, 166 F.3d 428, 431 (2d Cir.

1999) (per curiam). “Under intermediate scrutiny, the govern-

ment must show that the challenged legislative enactment is

substantially related to an important governmental interest.” Ra-

mos, 353 F.3d at 175.

Strict scrutiny, the most stringent of the three tiers, applies to

laws that discriminate based on membership in a protected class

or that burden a fundamental right. See Plyler v. Doe, 457 U.S.

202, 216-17 (1982). To satisfy strict scrutiny, the government

must show that its selected means were narrowly tailored to

serve its compelling interest. Reno v. Flores, 507 U.S. 292, 301-

02 (1993).

2. The Fourth Circuit’s Deferential Chalk Standard

In Chalk, the Fourth Circuit upheld arrests executed for violating

an emergency curfew that had been imposed by the mayor of

Asheville, North Carolina, in response to violent clashes between

high school students and police. 441 F.2d at 1278. The court,

reviewing the mayor’s authority to declare a state of emergency

along with the constitutionality of the curfew itself, reasoned that

the mayor’s action fell within his “broad discretion necessary for

the executive to deal with an emergency situation.” Id. at 1280,

Accordingly, the court declared that “the scope of our review in

a case such as this must be limited to a determination of whether

the mayor’s actions were taken in good faith and whether there

is some factual basis for his decision that the restrictions imposed

were necessary to maintain order.” fd. at 1281.

B. Freedom of Movement

1. Level of Scrutiny

Plaintiffs contend, and the court agrees, that the curfew bur-

dened fundamental rights guaranteed by the First, Fourth, and

Fourteenth Amendments and, therefore, is subject to strict scru-

tiny review. Freedom of movement, which includes the freedom

to travel within a state, is a well-established fundamental right.

See Williams v. Town of Greenburgh, 535 F.3d 71, 75 (2d Cir.

2008). Curfews, which innately hold “impeding travel [as]

10

[their] primary objective[s],” are quintessential restrictions on

travel. Att’y Gen. of N.Y. v. Soto—Lopez, 476 U.S. 898, 903 (1986)

(“A state law implicates the right to travel when it actually deters

such travel, when impeding travel is its primary objective, or

when it uses any classification which serves to penalize the exer-

cise of that right.”); Ramos, 353 F.3d at 176. And where

government action burdens adults’ fundamental right to travel,

strict scrutiny applies. Gaffney v. City of Allentown, No. 97-cv-

4455, 1997 WL 597989, at *4 (E.D. Pa. Sept. 17, 1997).

The City Defendants contend that the tiers of scrutiny are inap-

plicable because of the emergency circumstances of civil unrest

in which the curfew was enacted. They ask this court to apply the

Fourth Circuit’s deferential Chalk standard. The court, guided by

Second Circuit reasoning in Ramos, declines this invitation,*

In Ramos, the Second Circuit considered the constitutionality of

a generally applicable juvenile curfew. 353 F.3d 171. Because the

curfew restricted the narrower juvenile right to freedom of move-

ment, the court applied intermediate scrutiny and concluded that

4 Meanwhile, Plaintiffs’ discussion of Roman Catholic Diocese of Brooklyn v.

Cuomo, 141 S. Ct. 63 (2020)—1o argue for heightened review—and the

City Defendants’ analogy to Jacobson v. Commonwealth of Massachusetts,

197 U.S. 11, 38 (1905)---to argue for more deferential review—are both

similarly misplaced, Courts agree that Roman Catholic Diocese, in which the

Supreme Court held that New York’s capacity limitations were not neutral

toward religion, and, therefore, were subject to—and fatally flawed un-

der-—-strict scrutiny review, does not extend outside of the Free Exercise

context, See, e.g., Butler v. City of New York, No. 20-cv-4067 (ER), 2021 WL

4084501, at *5 (S.D.N.Y. Sept. 8, 2021) (collecting cases). Nor does Ja-

cobson, in which the Court upheld Massachusetts’ smallpox vaccine

mandate under what amounted to rational basis review, extend so far be-

yond its public health context to reach the security interest implicated here.

In his Roman Catholic Diocese concurrence, Justice Gorsuch underscores

the importance of these distinctions, explaining that Jacobson was inappo-

site to the Free Exercise question because it “involved an entirely different

mode of analysis, an entirely different right, and an entirely different kind

of restriction.” 141 S, Cr. at 70 (Gorsuch, J., concurring).

HH

the curfew was unconstitutional. Id. at 176. The court reasoned,

however, “that were this ordinance applied to adults, it would be

subject to strict scrutiny.” Id.

There is no reason for this court to depart from the Second Cir-

cuit’s reasoning in Ramos. Here, the curfew burdened the well-

settled and fundamental right to intrastate travel. Thus, it is sub-

ject to strict scrutiny. See Ramos, 353 F.3d at 175; see also

Johnson v. City of Cincinnati, 310 F.3d 484, 502 (6th Cir, 2002)

(applying strict scrutiny to ordinance barring certain individuals

from entering certain neighborhoods); Embry v. City of Clover-

port, KY, No. 02-cv-560 (JGH), 2004 WL 191613, at *2 (W.D. Ky.

Jan. 22, 2004) (applying strict scrutiny to curfew order). Accord-

ingly, the next question for the court is whether the curfew orders

were “narrowly tailored to achieve a compelling governmental

interest.”°

2. Discussion

The government hnas a “legitimate and compelling state interest

in protecting the community from crime.” Schall v. Martin, 467

US. 253, 264 (1984); see also Gaffney, 1997 WL 597989, at *5

(preventing crime is a compelling state interest). Although Plain-

tiffs allege that violence, looting, and conflict were not

widespread, they concede that episodes of unrest occurred in var-

ious neighborhoods in the city. This is adequate to establish the

compelling state interest. See In re New York City Policing During

Summer 2020 Demonstrations, No. 20-cv-8924 (CM) (GWG),

2021 WL 2894764, at *18 (S.D.N.Y. July 9, 2021) (holding that

there was a compelling state interest for the curfew). The central

inquiry is therefore whether the curfew was narrowly tailored to

5 The court agrees with Plaintiffs’ position that, if it were to apply the Chalke

standard, dismissal would be inappropriate on a motion to dismiss, See

WWABITV, Inc. v. Vil. of Rouses Potnt, 589 F.3d 46, 51 (2d Cir. 2009)

(whether “a genuine emergency exists is a factual issue”).

12

achieve that end. See Pyke v. Cuomo, 567 F.3d 74, 77 (2d Cir.

2009).

Defendants have established an adequately close nexus between

the goal of protecting public safety and the enactment of the cur-

few to further that goal. Here, unlike the generally applicable

juvenile curfew in Ramos, the duration of the curfew was limited

in time and was updated to respond to the changing circum-

stances in the city: The first Executive Order enacted a one-night

curfew, lasting from 11:00 p.m. to 5:00 a.m.; a subsequent Exec-

utive Order extended the hours from 8:00 p.m, to 5:00 a.m. and

extended the date range to June 7; and a later Executive Order

terminated the curfew on June 6, one day prior to its planned

expiration. Cf. Embry, 2004 WL 191613, at *3 (invalidating cur-

few that was not time-limited on the grounds that it was not

narrowly tailored). For its entire duration, the curfew applied

only during nighttime hours, when, Defendants argue, law en-

forcement faces greater difficulties in preserving public safety.

See also In re New York City Policing During Summer 2020 Demon-

strations, 2021 WL 2894764, at *18. And, with episodes of

violence occurring in various parts of different boroughs, the

court agrees that the City was justified in enacting the curfew as

a citywide measure. Accordingly, the freedom of movement chal-

lenge is dismissed.

C. Freedom of Speech

Plaintiffs also contend that the curfew was an unlawful re-

striction on speech. The court disagrees. “Expression, whether

oral or written or symbolized by conduct, is subject to reasonable

time, place, or manner restrictions.” Clark v. Cmty. for Creative

Nonviolence, 468 U.S, 288, 293 (1984). Where, as here, the reg-

ulation is imposed “without reference to the content of regulated

speech,” it is valid as long as it is “narrowly tailored to serve a

significant government interest” and “leave[s] open ample alter-

native channels for communication of the information.” Id.

13

Applying that standard, the court concludes that the curfew was

a valid content-neutral restriction on the time, place, and manner

of Plaintiffs’ expression. As explained, the compelling govern-

ment interest in public safety is well-established, and the

temporary curfew, which was modified twice in response to

changing circumstances, was narrowly tailored to achieve that

end. In addition, the curfew left open “ample alternative chan-

nels” for expressive activity. At its most restrictive, the curfew

was in effect for no more than nine hours each night, leaving

fifteen hours per day in which the curfew was not in effect and

in which New Yorkers were not restricted from exercising their

speech rights, The court therefore concludes that the curfew did

not violate the First Amendment on its face. See In re New York

City Policing During Summer 2020 Demonstrations, 2021 WL

2894764, at *18 (upholding the June 2020 curfew as a valid re-

striction on speech).

D. Fourth Amendment Search and Seizure

The City Defendants move to dismiss Plaintiffs’ Fourth Amend-

ment claims that their arrests were unlawful seizures, arguing

that probable cause for violating the curfew existed. (Mot. at 17-

19.) “Probable cause ... constitutes ...a complete defense to an

action for false arrest.” Weyant v. Okst, 101 F.3d 845, 852 (2d

Cir. 1996). “In general, probable cause to arrest exists when the

officers have knowledge or reasonably trustworthy information

of facts and circumstances that are sufficient to warrant a person

of reasonable caution in the belief that the person to be arrested

has committed or is committing a crime.” Id. According to Plain-

tiffs, they were each violating the curfew when they were

arrested, and they do not allege that they were permitted to do

so by any of the curfew’s exceptions. (Compl. $4 99-101, 105-

106, 112-113.) Therefore, their arrests were lawful under the

Fourth Amendment. See Atwater vy. City of Lago Vista, 532 U.S.

14

318, 354 (2001) (upholding arrests based on probable cause

“even [for] a very minor criminal offense”).

The City Defendants also argue for dismissal of the claim that the

curfew falsely imprisoned millions of New Yorkers in their

homes. False imprisonment claims, like false arrest claims, follow

the law of the state where the arrest occurred. See Russo v. City

of Bridgeport, 479 F.3d 196, 203 (2d Cir. 2007). Under New York

law, a movant “must show, inter alia, that the defendant inten-

tionally confined him without his consent and without

justification.” Weyant, 101 F.3d at 852. Here, the lawfulness of

the curfew justifies the alleged false imprisonment. Accordingly,

these claims are also dismissed.

E, Claims Against the Former Mayor in His Individual

Capacity® :

The former Mayor argues that all claims against him in his indi-

vidual capacity related to the enforcement of the curfew should

be dismissed because Plaintiffs failed to allege his personal in-

volvement on those claims. (Id.) As discussed, to be Hable under

Section 1983, a defendant must have been personally involved

in the alleged constitutional violation. See Wright v. Smith, 21

F.3d 496, 501 (2d Cir. 1994). “A plaintiff must therefore allege

facts that would, if proven, establish the government official’s

personal involvement in the violation of the plaintiffs rights.” In

re New York City Policing During Summer 2020 Demonstrations,

2021 WL 2894764, at *15.

6 The City Defendants argue that claims against the former Mayor in his

individual capacity relating to the enactment of the curfew should be dis-

missed since he is entitled to qualified immunity (City’s Mot. at 19-22.)

However, the court need not address this argument since the court has

dismissed Plaintiffs’ claims regarding the curfew’s facial constitutionality.

15

Plaintiffs failed to accomplish that task here. They cite several

public statements made by former Mayor Bill de Blasio concern-

ing the purpose and enforcement of the curfew orders. (Compl.

{4 39, 55, 61.) They also incorporate by reference the orders

themselves, (id. {| 17-20, 19 n.1.), which were each signed by

the former Mayor (see June 1, 2020 Exec. Order No. 117; June

1, 2020 Exec. Order No. 118 (Dkt. 25-2); June 2, 2020 Exec. Or-

der No. 119 (Dkt. 25-3); June 5, 2020 Exec. Order No. 121 (Dkt.

25-4); June 7, 2020 Exec. Order No. 122 (Dkt. 25-5)). However,

as explained, it was not unlawful for the former Mayor to enact

the curfew. And Plaintiffs have not alleged any facts that would

suggest that the former Mayor was personally involved in selec-

tively enforcing the curfews against some New Yorkers and not

others. Accordingly, the former Mayor’s motion to dismiss the

claims against him in his individual capacity are granted.”

V. CONCLUSION

For the reasons explained above, the motions are resolved as fol-

lows:

1. All claims against the former Governor are DISMISSED.

2. All claims alleging that the curfew was facially unconsti-

tutional are DISMISSED.

? On January 20, 2022, the court received Plaintiffs’ letter requesting clar-

ification of the court’s January 14, 2022 Order to reflect that the

substitution of Eric Adams for Bill de Blasio not be extended to individual

capacity claims, and requesting that the court’s November 12, 2022 Order

substituting Kathy Hochul for Andrew Cuomo be rescinded. In light of the

court's decision to dismiss the claims against former Governor Cuomo and

former Mayor de Blasio in their individual capacities, the court need not

further address Plaintiffs’ letter.

16

3. All claims alleging that the arrests were unlawful are DIS-

MISSED.

4. All claims alleging false imprisonment are DISMISSED.

5. All claims against the former Mayor in his individual! ca-

pacity are DISMISSED.

6. The selective enforcement and municipal liability claims

are SUSTAINED.

The City Defendants are directed to answer the Complaint within

14 days of this decision. Plaintiffs and the City Defendants are

directed to confer and contact Magistrate Judge Robert M. Levy

for next steps on the remaining claims.

The clerk of the court is respectfully directed to remove former

Governor Cuomo from the case caption.

SO ORDERED.

Dated: Brooklyn, New York

January 21, 2022

s/Nicholas G. Garaufis

NICHOLAS G. GARAUFIS ~

United States District Judge

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