Holden v. The Port Authority of New York and New Jersey

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

────────────────────────────────────

CORNELL HOLDEN AND MIGUEL MEJIA,

Plaintiffs, 17-cv-2192 (JGK)

OPINION AND ORDER

- against -

THE PORT AUTHORITY OF NEW YORK AND

NEW JERSEY; THE PORT AUTHORITY

POLICY DEPARTMENT; AND MICHAEL

OPROMALLA, SHAUN KEHOE, JOHN TONE,

JORDAN ESPOSITO, MICHAEL DEMARTINO,

RICHARD AYLMER, PAUL MILLER, JOHN

FITZPATRICK, PAUL O’DELL, AND

OFFICERS JOHN DOE 1-97, SUED IN

THEIR INDIVIDUAL AND OFFICIAL

CAPACITIES AS OFFICERS OF THE PORT

AUHTORITY POLICY DEPARTMENT,

Defendants.

────────────────────────────────────

JOHN G. KOELTL, District Judge:

The plaintiffs, Cornell Holden and Miguel Mejia, have

brought this action pursuant to 42 U.S.C. § 1983 against the

Port Authority of New York and New Jersey (the “Port

Authority”), the Port Authority Police Department (the “PAPD”),

and Michael Opromalla, Shaun Kehoe, John Tone, Jordan Esposito,

Michael DeMartino, Richard Aylmer, Paul Miller, John

Fitzpatrick, and Paul O’Dell (collectively, the “Officer

Defendants”), in their individual and official capacities, as

officers of the PAPD, for alleged violations of the plaintiffs’

rights guaranteed by the Fourth and Fourteenth Amendments of the

United States Constitution. Specifically, the plaintiffs have

alleged (1) false arrest in violation of the Fourth Amendment,

(2) impermissible discrimination on the basis of sexual

orientation or gender non-conformity in violation of the Equal

Protection Clause of the Fourteenth Amendment, and (3)

infringement of a liberty interest protected by the Due Process

Clause of the Fourteenth Amendment. In addition, the plaintiffs

have sought punitive damages. The plaintiffs allege that the

Officer Defendants targeted them, or failed to supervise

arresting officers who targeted them, for unlawful search,

seizure, and false arrest without probable cause, based on the

impermissible consideration of their perceived sexual

orientation or gender non-conforming presentation. Further, the

plaintiffs claim that the Port Authority engaged in and

perpetuated a de facto custom or policy of failing to supervise,

train, or discipline officers assigned to plainclothes

patrolling of the Port Authority Bus Terminal (the “PABT”) men’s

bathrooms, resulting in the targeting of men perceived to be gay

or bisexual, men who have sex with men, or who are otherwise

gender non-conforming, for unlawful searches, seizures, false

arrests without probable cause.

The defendants have moved for partial summary judgment on

(1) all claims against the Port Authority, (2) all claims

against the non-arresting Officer Defendants, namely, Kehoe,

Esposito, DeMartino, Aylmer, Miller, O’Dell, and Fitzpatrick,

and (3) all claims based on alleged violations of the

plaintiffs’ rights guaranteed by the Fourteenth Amendment’s

Equal Protection Clause and Due Process Clause. The defendants

also argue that the plaintiffs’ request for punitive damages

against the Port Authority should be dismissed.1

For the reasons that follow, the defendants’ motion is

granted with respect to the plaintiffs’ claims against non-

arresting Officer Defendants, claims based on the Fourteenth

Amendment’s Due Process Clause, and request for punitive damages

against the Port Authority, and denied in all other respects.

I.

The following facts are taken from the Second Amended

Complaint, declarations and exhibits filed in connection with

the motions, and the parties’ Local Rule 56.1 statements, and

are undisputed unless otherwise noted.

A.

The defendant Port Authority is a bi-state government

agency, created by a compact between, and authorized under the

laws of, the States of New York and New Jersey. Defs.’ 56.1

Stmt. ¶¶ 1-2. The Port Authority is authorized to maintain a

Public Safety Department, the PAPD, that employs officers with

statewide jurisdiction in New York. Defs.’ 56.1 Stmt. ¶ 3. The

1 The defendants have not moved for summary judgment on the plaintiffs’

claims against Officers Opromalla and Tone for false arrest in violation of

the plaintiffs’ Fourth Amendment rights.

Port Authority owns and operates the PABT at 625 Eighth Avenue

in New York, New York, which is patrolled by PAPD officers.

Defs.’ 56.1 Stmt. ¶ 4. The individual Officer Defendants were

officers and employees of the PAPD during the relevant period at

issue.

The plaintiffs Cornell Holden and Miguel Mejia were

arrested after using the men’s restroom on the second floor of

the PABT in 2014.

Holden was arrested on May 12, 2014 around 9 a.m., shortly

after he exited the second floor PABT men’s restroom. Defs.’

56.1 Stmt. ¶¶ 21-22. Holden is a black male who was 27 years

old, lived in the Bronx, and worked in Long Island City at the

time of the arrest. Defs.’ 56.1 Stmt. ¶ 24; Declaration of

Thomas Brophy, ECF No. 228, (“Brophy Decl.”), Ex. M, at 81.

Holden, who works as a baker, testified that on the morning of

May 12, he was passing through the PABT on his way to a cake

shop in Manhattan. Declaration of Seth Spitzer, ECF No. 232

(“Spitzer Decl.”), Ex. 15, at 123; Ex. 20, at 3. Holden

testified that he had entered the PABT men’s bathroom, gone to

the only vacant urinal, and that while at the urinal, he noticed

a bald, Caucasian male wearing “regular clothing,” later

identified as Officer Opromalla in plain clothes, standing at

the adjacent urinal. Brophy Decl. Ex. M, at 127, 135, 150.

Holden testified that as he was finishing at the urinal, Officer

Opromalla “stepped back and looked past the divider” at Holden

and then exited the bathroom. Spitzer Decl. Ex. 15, at 136.

Holden reported that after he finished using the urinal, he

realized that he was having a nosebleed, and remained in the

bathroom until the bleeding stopped. Id. at 137. After Holden

left the bathroom, he was approached by two plainclothes

officers, defendants Opromalla and Kehoe, who, according to

Holden’s testimony, asked him if he got “the wrong impression

about anyone in the bathroom” and about “what happened in the

bathroom.” Id. at 143-44. Holden was then placed under arrest,

and when he asked for an explanation, the officers told him that

he was “seen doing a lewd act in the bathroom.” Id. at 146.

Officer Opromalla, who had identified Holden as having committed

a lewd act, later told Holden that he was “standing by the

urinal . . . erect” and that he “kn[e]w what he did.” Spitzer

Decl. Ex. 15, at 150-151.

Holden testified that, while in PABT custody, he overheard

certain PAPD officers congratulate Officer Opromalla on the

arrest and heard a male PAPD officer joke about Officer

Opromalla “having a date . . . tonight” and describe Officer

Opromalla as a “gay whisperer,” which Holden understood as a

reference to Officer Opromalla’s ability to “catch” gay men. Id.

at 156-59.

The parties dispute the degree of involvement of Officer

Kehoe in Holden’s arrest, but the parties agree that Officer

Opromalla prepared the arrest paperwork and Officer Opromalla is

listed as the “Arresting Officer” on Holden’s Criminal Complaint

Arrest Report (“CCR”). Spitzer Decl. Ex. 17; Brophy Decl. Ex. C,

207-11; Spitzer Decl. Ex. 4, at 210-13. It similarly appears

undisputed that Officer Kehoe was outside of the bathroom at the

time that Officer Opromalla reported observing Holden’s

behavior. Brophy Decl. Ex. C, at 205-06; Pls.’ 56.1 Resp. Stmt.

¶¶ 29, 33. Holden’s CCR, prepared by Officer Opromalla, stated

that Opromalla “observed the defendant . . . expose his naked

erect penis at the urinal and manipulate it in a back and forth

motion in full public view.” Spitzer Decl. Ex. 17, at PA 000018.

The parties agree that Lt. O’Dell, Sgt. Miller, Sgt. DeMartino,

and Sgt. Esposito were not present at Holden’s arrest, but

signed Holden’s post-arrest paperwork. Defs.’ 56.1 Stmt. ¶¶ 40-

43; Pls.’ 56.1 Resp. Stmt. ¶¶ 40-43.

It is undisputed that Officer Opromalla did not make

explicit reference to Holden’s sexuality during the arrest.

Defs.’ 56.1 Stmt. ¶ 45; Pls.’ 56.1 Resp. Stmt. ¶ 45.

Nevertheless, Holden, who identifies as a gay male, Defs.’ 56.1

Stmt. ¶ 27; Brophy Decl. Ex. C; Spitzer Decl. Ex. 15, at 73,

testified that he believed that it was clear from his appearance

that he was gay. Spitzer Decl. Ex. 15, at 170. Holden testified

he had his hair in a mohawk and that he was wearing fitted denim

pants, a black leather jacket, silver hoop earrings, a silver

chain necklace, a silver name ring, a beaded bracelet, high-top

sneakers, and a duffle bag with a Fred Perry logo. Spitzer Decl.

Ex. 15, at 98-104, 170; Brophy Decl. Ex. M, at 98-106, 170. The

charges against Holden were ultimately dismissed on December 9,

2014. Spitzer Decl. Ex. 15, at 41-42.

Mejia was arrested on July 9, 2014 at approximately 5:06

p.m., shortly after leaving the same PABT men’s bathroom. Mejia

is a white Hispanic male, who was 43 years old, living in

Manhattan and employed at the Family Help Living Center at the

time of his arrest in 2014. Defs.’ 56.1 Stmt. ¶¶ 54-55; Brophy

Decl. Ex. P, at 12, 16-18. He was at the PABT in order to take

a 5:12 p.m. bus to Clifton, New Jersey. Pls.’ 56.1 Stmt. ¶ 57.

Mejia testified that when he entered the PABT men’s restroom, he

went to the only vacant urinal. Id. at ¶ 63; Brophy Decl. Ex. P,

at 124-25.

There are several discrepancies between the parties’

accounts of the events leading up to Mejia’s arrest. Mejia

testified that while he was using the urinal, he noticed a

“short” man to his right, who “smirked” at Mejia when Mejia

looked at him. Spitzer Decl. Ex. 16, at 126-27, 156-57. Officer

Tone testified that he entered the bathroom, in plain clothes,

and while standing by the sinks, he noticed that Mejia was

looking at the man to his right, that Mejia “turned his body”

towards the man, and that he saw Mejia’s arm moving “rapidly.”

Declaration of Thomas Brophy, ECF No. 236 (“Brophy Reply

Decl.”), Ex. T, at 118, 127, 133. Officer Tone reported that he

“took a few steps” towards Mejia “where [he] was able to see the

[alleged] criminal act.” Brophy Decl. Ex. F, at 133. Officer

Tone reported he was not aware if the other man saw Mejia’s

penis. Spitzer Decl. Ex. 6, at 139-40. The parties appear to

agree that Officer Kehoe had remained outside of the bathroom,

also in plain clothes. Brophy Decl. Ex. D, at 21-24; Ex. F, at

117; Pls.’ 56.1 Resp. Stmt. ¶ 60.

The parties agree that Mejia was arrested by Officer Tone,

with the assistance of Officer Kehoe, after Mejia left the men’s

bathroom. However, Mejia testified that he was arrested by three

men, and specifically that the short man who “smirked” at him

was a PAPD Officer in plain clothes and assisted Officers Tone

and Kehoe with the arrest. Brophy Decl. Ex. P, at 156-157.

Officer Tone, however, reported that he and Officer Kehoe made

the arrest and were patrolling alone, without the assistance of

a third officer, Spitzer Decl. Ex. 6, at 116-17, 141, and that,

although he noticed Mejia and the man to Mejia’s right staring

at each other, he could not describe the man to Mejia’s right.

Brophy Decl. Ex. F, at 128.

Mejia testified that when he asked why he was under arrest,

Officer Tone said, “[Y]ou know what you did.” Spitzer Decl. Ex.

16, 156-61. Mejia was charged with “Public Lewdness” and

“Exposure of a Person.” Spitzer Decl. Ex. 18. Officer Tone

prepared Mejia’s CCR, reporting that while “working in the

Tactical Plain Clothes Unit,” in the second floor PABT men’s

room, Tone “observe[d] the defendant manipulating his naked

erect penis in a back and forth motion in full public view in a

public place.” Id. Officer Tone is listed as the arresting

officer on Mejia’s CCR, and there is no mention of either

Officer Kehoe or another plainclothes officer in Mejia’s CCR.

Brophy Decl. Ex. O. The parties agree that Sgt. DeMartino and

Lt. Aylmer were not present at Mejia’s arrest, but signed

Mejia’s post-arrest paperwork. Pls.’ 56.1 Resp. Stmt. ¶¶ 70-71.

On November 17, 2014, Mejia was acquitted after a bench

trial in New York criminal court, at which Officer Tone was the

only officer to testify. Defs.’ 56.1 Stmt. ¶¶ 73-74.

Mejia, who does not “identify” with a particular

description of his sexual orientation, was previously married to

a woman, has dated men, and was dating a man at the time of his

arrest for over a year. Spitzer Decl. Ex. 16, at 33, 97-98.

Mejia suggested that his appearance “could have” given “off the

impression” that he was homosexual or otherwise gender non-

conforming. Spitzer Decl. Ex. 16, at 208-09. On the date of the

arrest, Mejia had a shaved head, facial hair, tattoos on his

arms, legs, and back, and was wearing an orange jersey with a

basketball emblem, grey cargo shorts, black and grey sneakers, a

wedding band, a gold necklace, and a virgin pendant, and was

carrying a burgundy messenger bag. Defs.’ 56.1 Stmt. ¶ 56;

Spitzer Decl. Ex. 16, at 26-33, 42, 45-46, 64, 145.

B.

According to the crime statistics submitted by the

defendants, of the 660 reported crimes at the PABT in 2014, 69

were for “SEXUAL OFFENSE / ALL OTHER,” which the defendants

appear to admit were all arrests in the PABT men’s bathrooms for

“Public Lewdness.” Defs.’ 56.1 Stmt. ¶ 16; Brophy Decl. Ex. I.

Of the 69 arrests for Public Lewdness that occurred in the PABT

men’s bathroom in 2014, 7 occurred before Holden’s arrest in May

and 32 arrests occurred before Mejia’s arrest in July. Defs.’

56.1 Stmt. ¶¶ 17-18; Brophy Decl. Exs. H & I.

In 2013, there were 749 arrests at the PABT, of which 9

were arrests for “SEXUAL OFFENSE / ALL OTHER” crimes across the

entire PABT, not just in the PABT men’s bathroom. Defs.’ 56.1

Stmt. ¶ 19; Brophy Decl. Ex. K. According to the PAPD crime

statistics, 2012 and 2011 similarly both had only 9 reports of

“SEXUAL OFFENSE / ALL OTHER” across the entire PABT. Brophy

Decl. Ex. I.

The parties dispute the characteristics of the 69 Public

Lewdness arrestees in 2014. The plaintiffs have presented

anonymous, sworn affidavits from men who claim to have been

arrested in the PABT men’s bathroom for Public Lewdness and who

allege that they were targeted because of their perceived sexual

orientation or gender presentation. Spitzer Decl. Exs. 21, 22,

23, 24, 25.2 The plaintiffs have also submitted two expert

reports, from Drs. Pfaff and Pierceson, offering opinions that

suggest the patterns of arrests in 2014 for Public Lewdness were

driven by an “intentional policy choice,” and note historic

incidents of discrimination against the LGBTQ community by law

enforcement. Spitzer Decl. Ex. 11 at ¶¶ 20-21; Ex. 12 at ¶ 9.

Dr. Pfaff’s report notes that the population of lewdness arrests

that occurred in the men’s bathroom during 2014, including the

plaintiffs’ arrests, are “idiosyncratic,” occurred at

counterintuitive times, and do not match the age or racial

characteristics of those arrested for other offenses. Spitzer

Decl. Ex. 12 at ¶ 9. Dr. Pfaff has opined that the data suggests

that such arrests were driven by “intentional policy choices,”

and “not incidental to routine police patrols and stops.” Id.

2 The plaintiffs have also presented an affidavit from Marcos Polonia,

previously a named plaintiff in this case, with details of his arrest in

2014, including allegations that he was targeted based on his apparent sexual

orientation. Polonia dropped his claims prior to his deposition, but stated

he “plan[ned] to continue to participate as a class member.” Spitzer Decl.

Ex. 35.

During the relevant period at issue, the PAPD engaged in

plainclothes policing of the PABT, including the men’s

restrooms, through a “Tactical Patrol Unit” (“TPU”). Spitzer

Decl. Ex. 1; Ex. 2, at 98; Ex. 9, at 65. There is some evidence

in the record to suggest that, during 2014, the TPU was involved

in combating certain “Quality of Life” complaints and issues.

Spitzer Decl. Ex. 1; Ex. 9, at 62; Ex. 32, at 158-61. There is

conflicting testimony regarding whether the PAPD engaged in

“sweeps” for “Quality of Life” crimes or issues. See, e.g.,

Spitzer Decl. Ex. 2, at 94; Ex. 9, at 118-21; Ex. 10, at 144-46.

However, the plaintiffs have produced a Port Authority Public

Safety Memorandum from May 2, 2014, that includes among

“Achievements/Initiatives” that PAPD officers at the PABT

“collaborated with the NYPD during Quality of Life sweep[s],”

including “two 24 hour sweeps,” Spitzer Decl. Ex. 1, at 9-10, as

well as a “Buckslip” from June 22, 2015 about a 24-hour “Quality

of Life Joint Operation” between NYPD and PAPD to conduct “zero

tolerance sweeps” inside and around the Port Authority, Spitzer

Decl. Ex. 7.

The parties agree that “Public Lewdness” and “Exposure of a

Person” in a public place are misdemeanor crimes, prohibited by

N.Y. Penal Law §§ 245.00 and 245.01, respectively, and that

masturbation in a public place is a crime under N.Y. Penal Law

§§ 245.00 and 245.01. Pls.’ 56.1 Stmt. ¶¶ 6-8. But there is

some disagreement among the Officer Defendants as to whether

“Public Lewdness” or “Exposure of a Person” would be considered

Quality of Life issues, and, as such, appropriate targets of any

potential “Quality of Life” initiative. For example, when asked

about how officers under his supervision were to know which

“Quality of Life” issues warranted attention, Captain

Fitzpatrick testified that he “d[i]dn’t think you have to define

it,” because “Police know exactly what they’re looking for.”

Brophy Decl. Ex. B, at 176. At least two officers testified that

they personally considered either “Exposure of a Person” or

“Public Lewdness” to be a “Quality of Life” issue, but did not

know whether “Public Lewdness” or “Exposure of a Person” was

considered a Quality of Life offense according to PAPD policy.

Brophy Reply Decl. Ex. EE, at 78, 183; Spitzer Decl., Ex. 10, at

143-46. See also Brophy Decl. Ex. F, at 104, 106.

The Officer Defendants have testified that the PAPD did not

use arrest quotas in 2014, either generally or in connection

with the TPU. Defs.’ 56.1 Stmt. ¶ 9; Brophy Decl. Ex. C, at 124,

292; Ex. D, 58-60; Brophy Reply Decl. Ex. Z, at 267-69. The

plaintiffs dispute the absence of quotas by pointing to the May

2014 Memorandum sent by Michael Fedorko, the Port Authority’s

Director of Public Safety, which included among a list of

“Achievements/Initiatives” that:

Day tour team utilized [Defendant Opromalla] on 4/28/14 and

4/29/14 to apprehend four (4) different male subjects from

the men’s room on the Suburban Concourse. These subjects

were observed performing a lewd act in a public place.

Subjects subsequently charged with Public Lewdness.

Spitzer Decl. Ex. 1.

Patrolling the men’s bathroom was considered a part of at

least one of the TPU patrol posts. Officer Opromalla reported

that “the first day [he] worked plain clothes [he] was informed

by a supervisor” of the “activities and behavior that go on in

[the PABT men’s bathroom].” Spitzer Decl. Ex. 4, at 83.

Opromalla testified that Captain Fitzpatrick specifically

“explained that [Public Lewdness] was an ongoing condition and

that he wanted [Opromalla] to continue to enforce the laws

specifically regarding this condition.” Spitzer Decl. Ex. 4, at

85. However, there is no evidence that Captain Fitzpatrick

explicitly mentioned gay men or instructed Opromalla to target

gay or gender non-conforming men for Public Lewdness arrests.

Pls.’ 56.1 Stmt. ¶ 47. Officer Opromalla also reported that

Sergeant Miller “informed [him] of what to look for in regard[]

to public lewdness” and that “if you wait at the urinal for long

enough, someone may start engaging in that behavior.” Spitzer

Decl. Ex. 4, at 171. Officer Opromalla testified that he would

remain in the PABT men’s room for as long as ten minutes at a

time to wait for such behavior to occur. Id. at 172.

The PAPD maintains its own police academy, where PAPD

officers are trained, including Officers Tone and Opromalla.

The parties agree that the Officer Defendants received

sensitivity and diversity training, including with regards to

LGBTQ individuals. Defs.’ 56.1 Stmt. ¶ 5; Brophy Decl. Ex. A.

However, the plaintiffs assert that the training was inadequate

and have introduced expert testimony from Dr. Pierceson

regarding its alleged deficiencies. Spitzer Decl. Ex. 11. The

plaintiffs have sought to introduce evidence regarding

Martinez v. Port Auth. of N.Y. & N.J., a case in which a jury

found the PAPD liable for having an “unconstitutional policy or

practice that resulted in a deprivation of the plaintiff's

constitutional rights by arresting men perceived to be gay, or

arresting men without probable cause” at the PATH concourse

men’s restroom. Martinez v. Port Auth. of N.Y. & N.J., No. 01-

cv-721, 2005 WL 2143333, at *4 (S.D.N.Y. Sept. 2, 2005), aff'd,

445 F.3d 158 (2d Cir. 2006). In Martinez, the plaintiff was the

first of seven men arrested for Public Lewdness within a 2.5-

hour period by PAPD officers. Id. at *5. Dr. Pierceson, in

particular, has discussed in his report that he has concluded

that the PAPD’s training is particularly deficient, given the

notable absence of any discussion or scenarios in the training

slides regarding profiling of LGBTQ individuals or plainclothes

policing in bathrooms.

Certain Officer Defendants testified that PAPD officers

received no training specific to plainclothes policing. See,

e.g., Spitzer Decl. Ex. 3, at 119-20; Ex. 9, at 70-71; Ex. 10,

at 47-48, 131-32; Brophy Decl. Ex. F, at 163; Brophy Reply

Decl., Ex. CC, at 98. However, certain PAPD officials have

testified they do believe plainclothes police requires unique

instruction. See, e.g., Spitzer Decl. Ex. 26, at 70-71; Brophy

Reply Decl. Ex. V, at 57; Defs.’ 56.1 Resp. Stmt. ¶ 8.

Both Officers Tone and Opromalla have testified that the

PAPD has never taken a disciplinary action against them, nor

have they been the subject of an internal investigation. Brophy

Decl. Ex. C, at 292; Ex. F, at 218. While the parties agree that

Officer Opromalla was never formally disciplined, Officer

Opromalla never made another plainclothes arrest in 2014 after

he was named in a New York Times article about arrests made by

plainclothes officers at the Port Authority, Spitzer Decl. Ex.

4, at 293. Capitan Fitzpatrick stated that it “was suggested

maybe to take Opromalla out of plainclothes.” Spitzer Decl. Ex.

9, at 105. Captain Fitzpatrick testified that, to the degree he

remembers anything about his response to the New York Times

article, it was instructing Officers: “If you see probabl[e]

cause for arrest, no matter what it is, make the arrest.” Id.

II.

The standard to be applied to a motion for summary judgment

is well-established. Courts are instructed to grant a motion

for “summary judgment if the movant shows that there is no

genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a);

see also Celotex Corp. v. Cartrett, 477 U.S. 317, 322-23 (1986).3

“[T]he trial court's task at the summary judgment motion stage

of the litigation is carefully limited to discerning whether

there are any genuine issues of material fact to be tried, not

to deciding them.” Gallo v. Prudential Residential Servs., Ltd.

P’ship, 22 F.3d 1219, 1224 (2d Cir. 1994). The Court’s “duty, in

short, is confined at this point to issue-finding,” and “does

not extend to issue-resolution.” Id.

The moving party bears the initial burden of “informing the

district court of the basis for its motion” and identifying the

matter that “it believes demonstrate[s] the absence of a genuine

issue of material fact.” Celotex, 477 U.S. at 323. The

substantive law governing the case will identify those facts

that are material and “[o]nly disputes over facts that might

affect the outcome of the suit under the governing law will

3 Unless otherwise noted, this Opinion and Order omits all alterations,

omissions, emphasis, quotation marks, and citations in quoted text.

properly preclude the entry of summary judgment.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

In determining whether summary judgment is appropriate, a

court must resolve all ambiguities and draw all reasonable

inferences against the moving party. See Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). “Summary

judgment should be denied if, when the party against whom

summary judgment is sought is given the benefit of all

permissible inferences and all credibility assessments, a

rational factfinder could resolve all material factual issues in

favor of that party.” Soto v. Gaudett, 862 F.3d 148, 157 (2d

Cir. 2017). If the moving party meets its burden, the nonmoving

party must produce evidence in the record and “may not rely

simply on conclusory statements or on contentions that the

affidavits supporting the motion are not credible.” Ying Jing

Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993).

III.

The defendants have moved for summary judgment on the

plaintiffs’ Section 1983 claims against the Port Authority,

based on the alleged violation of the plaintiffs’ rights under

the Fourth and Fourteenth Amendments.

The defendants argue that the plaintiffs have failed to

establish either a policy or custom of unconstitutional conduct

or that the Port Authority’s training and supervision are

constitutionally inadequate. The defendants primarily contend

that the plaintiffs cannot establish that the Port Authority had

an unconstitutional policy, custom, or practice without a

certified class, and that the plaintiffs have failed to allege

more than a “single incident,” which is insufficient as a matter

of law, to support municipal liability for a Section 1983 claim.

Both arguments are without merit.

The Port Authority is treated as a municipal entity for

purposes of Section 1983 liability. Mack v. Port Auth. of N.Y. &

N.J., 225 F. Supp. 2d 376, 382 & n.7 (S.D.N.Y. 2002).

“[M]unicipalities may be sued directly under [Section] 1983 for

constitutional deprivations inflicted upon private individuals

pursuant to a governmental custom, policy, ordinance,

regulation, or decision.” Batista v. Rodriguez, 702 F.2d 393,

397 (2d Cir. 1983) (citing Monell v. Dep't of Soc. Servs., 436

U.S. 658, 690–91 (1978)). Under Monell and its progeny,

municipalities are subject to liability for Section 1983 claims,

not under a theory of respondeat superior, but rather on the

basis that their policies or customs inflicted the alleged

injuries. Id.

To hold a municipality liable under Section 1983 for the

unconstitutional actions of its employees, a plaintiff is

required to plead and prove three elements: (1) the existence of

an official policy or custom that (2) causes the plaintiff to be

subjected to (3) a denial of a constitutional right. Batista,

702 F.2d at 397; Bertuglia v. City of New York, 133 F. Supp. 3d

608, 649 (S.D.N.Y. 2015), aff'd sub nom. Bertuglia v. Schaffler,

672 F. App'x 96 (2d Cir. 2016). The plaintiff may show the

existence of such a policy or custom by identifying any of the

following: (1) an express policy or custom; (2) an authorization

of a policymaker of the unconstitutional practice; (3) failure

of the municipality to train its employees, which exhibits a

“deliberate indifference” to the rights of its citizens; or (4)

a practice of the municipal employees that is “so permanent and

well settled as to imply the constructive acquiescence of senior

policymaking officials.” Corley v. Vance, 365 F. Supp. 3d 407,

438 (S.D.N.Y. 2019), aff'd sub nom., Corley v. Wittner, 811 F.

App'x 62 (2d Cir. 2020).

In this case, the plaintiffs have primarily sought to

establish that the Port Authority failed to train, supervise, or

discipline PAPD officers, thereby allowing unconstitutional

policing practices to occur and continue.

To plead a Monell claim based on a failure to train, a

plaintiff must plead (1) that “a policymaker [of the

municipality] knows ‘to a moral certainty’ that her employees

will confront a given situation,” (2) “that the situation either

presents the employee with a difficult choice of the sort that

training or supervision will make less difficult or that there

is a history of employees mishandling the situation,” and (3)

“that the wrong choice by the city employee will frequently

cause the deprivation of a citizen’s constitutional rights.”

Walker v. City of New York, 974 F.2d 293, 297–98 (2d Cir. 1992).

A municipality is deliberately indifferent where it fails to act

when it has “actual or constructive notice,” generally from “[a]

pattern of similar constitutional violations by untrained

employees,” that its training program is “deficient.”

Hernandez v. United States, 939 F.3d 191, 207 (2d Cir. 2019). A

plaintiff, therefore, “must demonstrate that the municipal

action was taken with deliberate indifference as to its known or

obvious consequences.” Id. As the Supreme Court explained in

Connick v. Thompson, a “pattern of similar constitutional

violations by untrained employees is ‘ordinarily necessary’ to

demonstrate deliberate indifference for purposes of a failure to

train.” 563 U.S. 51, 62 (2011).

The plaintiffs have presented evidence that there are

genuine issues of material fact as to whether the PAPD

adequately trained its plainclothes officers to avoid arresting

men without probable cause, while conducting plainclothes

policing patrols of bathrooms, or to avoid bias regarding sexual

orientation and gender presentation. There are genuine issues of

material fact regarding whether PAPD officers were instructed to

emphasize arrests for “Quality of Life” issues, whether Officers

were given sufficient instruction as to what constituted such

“Quality of Life” issues, and whether these policy choices

caused officers to target certain individuals, based on their

perceived sexual orientation or gender presentation.

For municipal liability based on a failure to supervise,

“the municipality may be held liable for a subsequent violation

if the superior's inaction amounts to deliberate indifference or

to tacit authorization of the offensive acts,” after the

supervisor has notice of past violations. Turpin v. Mailet, 619

F.2d 196, 201 (2d Cir. 1980). However, under this theory of

Monell liability, “even if a policy can be inferred from

omissions of a municipality, such as where it acquiesces in a

pattern of illegal conduct, such a policy cannot be inferred

from the failure of those in charge to discipline a single

police officer for a single incident of illegality”; instead,

there must be “more evidence of supervisory indifference, such

as acquiescence in a prior pattern of conduct.” Lucente v.

County of Suffolk, 980 F.3d 284, 306 (2d Cir. 2020) (quoting

Turpin, 619 F.2d at 201-02).

In this case, the plaintiffs have alleged and proffered

evidence to establish that the PAPD officers engaged in a

pattern of policing specifically targeting men perceived as gay,

bisexual, or otherwise gender non-conforming for arrest without

probable cause on charges for Public Lewdness after using the

PABT men’s restrooms. The plaintiffs have alleged that the PAPD

undertook a policy or custom of policing for “Quality of Life”

issues, using inadequately trained and supervised plainclothes

police officers, with deliberate indifference to the potential

for unconstitutional search, seizure, and arrests without

probable cause, potentially based on impermissible bases. To

support their case, the plaintiffs point to the “idiosyncratic”

uptick in 2014 Public Lewdness arrests in connection with

plainclothes police patrols of men’s bathrooms, evidence that

suggests the PAPD engaged in occasional “Quality of Life

sweeps,” the nearly identical language used in the plaintiffs’

CCRs to describe the alleged behavior of the arrestee, an e-mail

listing the arrest of four men under similar circumstances

within 48 hours as an “achievement,” and alleged inadequacies in

the training of the Officer Defendants. There are also plainly

credibility determinations required to settle conflicting

testimony regarding the plaintiffs’ arrests.

In sum, considering the evidence in the light most

favorable to the plaintiffs, the plaintiffs have presented

sufficient evidence such that a reasonable factfinder could find

that the PAPD failed to train or to supervise and discipline

plainclothes officers, despite awareness of past issues, that

this failure was done with deliberate indifference to the

consequences, and that this failure to train or to supervise and

discipline was a proximate cause of the plaintiffs being

unlawfully subjected to arrest without probable cause and to

arrest in violation of their rights to equal protection.

The defendants argue that the plaintiffs cannot maintain

their Section 1983 claims without having been certified as a

class, citing to Chin v. Port Auth. of N.Y. and N.J., 685 F.3d

135, 150 (2d Cir. 2012). However, Chin was a case involving a

private plaintiff seeking to bring an employment discrimination

claim under Title VII, based on a theory that the employer had

engaged in a “pattern or practice” of discrimination. The Court

of Appeals for the Second Circuit, based on the text of Title

VII and Supreme Court precedent, determined that the “pattern or

practice” method of proving a Title VII claim was not available

to private litigants outside of the class action context. Id. at

149. As such, the passage cited and the reasoning of Chin are

irrelevant to the Section 1983 claims at issue here, because the

Chin court was exclusively focused on Title VII and the way in

which private plaintiffs could pursue a “pattern or practice”

claim under that statute. That case has no relevance to the

efforts by private plaintiffs to establish Monell liability.

Indeed, in the Section 1983 context, courts have routinely

permitted claims against municipalities brought by individual

plaintiffs that can establish the existence of a municipal

policy, without the certification of a class. See, e.g.,

Lucente, 980 F.3d at 308-310 (finding three plaintiffs had

established sufficient issues of material fact to preclude

summary judgment on municipality’s indifference to pattern of

sexual assaults and harassment of female inmates).

Second, the defendants argue that a plaintiff must show a

“pattern” of similar constitutional violations, that

policymakers had “notice” of the potential for constitutional

violations absent adequate training or supervision, and that the

plaintiffs have failed to demonstrate either. The defendants

assert that the plaintiffs have failed to provide sufficient

evidence to establish that the other 2014 “Public Lewdness”

arrests were made without probable cause or involved persons

targeted because of their perceived sexual orientation or gender

presentation.

However, the plaintiffs have introduced expert testimony to

support their claim that the plaintiffs’ arrests were part of a

notable and “idiosyncratic” pattern of arrests with historical

roots connected to law enforcement Public Lewdness arrests in

men’s bathrooms. Accordingly, there are genuine issues of

material fact as to whether a “pattern” of similar violations

occurred, such that a reasonable jury could conclude that the

alleged false arrests of Holden and Mejia were not mere isolated

incidents. See, e.g., Lucente, 980 F.3d at 309-10; Cordero v.

City of New York, 282 F. Supp. 3d 549, 565 (E.D.N.Y. 2017).

Further, with regard to the “notice” requirement for the

plaintiffs’ claims regarding the PAPD’s failure to train – the

2004 jury verdict in Martinez case, 2005 district court

decision, and subsequent affirmance by the Court of Appeals,

should have provided PAPD officials with sufficient notice of

the real potential for constitutional violations that could

arise when police officers in plain clothes undertake arrests in

men’s bathrooms and the potential for invidious discrimination

based on perceived sexual orientation or gender presentation.

The plaintiffs allege that the PAPD has failed to update its

training, which features outdated terminology and no practical

instructions, despite the constitutional violations for which

the PAPD was previously found liable. The defendants’ argument

that Martinez is too remote or dissimilar from the plaintiffs’

claims here to provide sufficient notice to PAPD management is

unpersuasive. Martinez may be too remote to be probative for

any of the individual Officer Defendants who were not involved

in the arrests at issue in Martinez. However, the incidents at

issue in Martinez and present here are similar—and a reasonable

jury could find that the PAPD’s failure to update its training

materials after Martinez amounted to an unconstitutional failure

to train, sufficient to subject the PAPD to liability for the

plaintiffs’ Section 1983 claims.

Further, the plaintiffs have plausibly alleged that the

PAPD engaged in a plainclothes policing initiative without

adequate supervision of the officers involved. At a minimum, the

discrepancies in the testimony of PAPD officers, regarding

whether “Public Lewdness” or “Exposure of a Person” were

“Quality of Life” issues or appropriate targets for plainclothes

policing, underscore that there are triable issues of fact as to

whether the PAPD supervision regarding bias and constitutional

restrictions on plainclothes policies was unconstitutionally

deficient. Pls.’ 56.1 Stmt. ¶ 11; Spitzer Decl. Ex. 2, at 94;

Ex. 4, at 84; Ex. 9, at 63; Ex. 10, at 145-46; Brophy Decl. Ex.

F, at 104, 106; Brophy Reply Decl. Ex. EE, at 78, 183.

Because there are disputed issues of material facts with

regard to the existence of a “pattern,” and whether plainclothes

officers were adequately trained and supervised, the issue of

Monell liability should be decided by the jury on the theory of

a failure to train or supervise.

IV.

The defendants have moved for summary judgment on the

plaintiffs’ Section 1983 claims based on alleged violations of

the plaintiffs’ rights under the Equal Protection Clause of the

Fourteenth Amendment, arguing that the Officer Defendants are

entitled to qualified immunity and, in the alternative, that the

plaintiffs’ equal protection claims lack sufficient factual

support.

A.

Qualified immunity protects government officials performing

discretionary functions, such as arrests, “from liability for

civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a

reasonable person would have known.” Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982); see also Plumhoff v. Rickard, 134 S. Ct.

2012, 2023 (2014). The Supreme Court has instructed that courts

should generally follow a two-step inquiry when an official

raises a qualified immunity defense: first determine whether

“the official violated a statutory or constitutional right,” and

then determine if “the right was ‘clearly established’ at the

time of the challenged conduct.” Ricciuti v. Gyzenis, 834 F.3d

162, 167 (2d Cir. 2016) (quoting Ashcroft v. al-Kidd, 563 U.S.

731, 735 (2011)).

For the second prong of the inquiry, “[t]he dispositive

question is whether the violative nature of particular conduct

is clearly established,” and, “must be undertaken in light of

the specific context of the case, not as a broad general

proposition.” Mullenix v. Luna, 577 U.S. 7, 12 (2015). The

“clearly established right . . . must be defined with

specificity.” City of Escondido v. Emmons, 139 S. Ct. 500, 503

(2019). For a right to be clearly established “do[es] not

require a case directly on point, but existing precedent must

have placed the statutory or constitutional question beyond

debate.” al-Kidd, 563 U.S. at 741. In determining whether a

right is clearly established at the time of the conduct in

question, courts can consider Supreme Court decisions, decisions

of the Second Circuit Court of Appeals, and “a consensus of

cases of persuasive authority such that a reasonable officer

could not have believed that his actions were lawful.” Wilson v.

Layne, 526 U.S. 603, 617 (1999). In addition, in this Circuit,

genuine, material disputes on factual issues that are relevant

to the qualified immunity analysis are to be put to the jury to

be decided through special interrogatories. Warren v. Dwyer, 906

F.2d 70, 76 (2d Cir. 1990); see also Jones v. Treubig, 963 F.3d

214, 225 (2d Cir. 2020).

The defendants assert that “neither the Second Circuit nor

the Supreme Court have held the Equal Protection Clause

prohibits discrimination based on sexual orientation or gender

non-conformity,” and thus such principle was not “clearly

established” in 2014 at the time of the plaintiffs’ arrests.

This assertion misstates the law.

First, the defendants’ claim that the Court of Appeals for

the Second Circuit has not held that adverse discrimination

based on sexual orientation or gender non-conformity is

prohibited by the Equal Protection Clause is untrue. In 2012,

the Second Circuit Court of Appeals in Windsor held that

homosexuality is a “quasi-suspect” class and discriminatory

treatment of the class is subject to “intermediate judicial

review.” Windsor v. United States, 699 F.3d 169, 185 (2d Cir.

2012), aff'd on other grounds, 570 U.S. 744 (2013). Courts in

the Second Circuit have repeatedly recognized Windsor’s

application of intermediate scrutiny to sexual orientation-based

classifications as the controlling law within this Circuit,

dating back to before the relevant plaintiffs’ arrests in 2014.

See, e.g., Morgan v. Semple, No. 16-cv-225, 2020 WL 2198117, at

*19 (D. Conn. May 6, 2020); Adkins v. City of New York, 143 F.

Supp. 3d 134, 139 (S.D.N.Y. 2015); Toliver v. Fischer, No. 12-

cv-0077, 2015 WL 403133, at *20 (N.D.N.Y. Jan. 29, 2015);

Weslowski v. Zugibe, 14 F. Supp. 3d 295, 318 & n.7 (S.D.N.Y.

2014) (on March 31, 2014, stating “the Second Circuit has held

that ‘homosexuals compose a class that is . . . quasi-suspect,’”

and that allegations of discrimination involving this class are

“subject to heightened scrutiny.”).

Moreover, whatever the level of scrutiny, it is clear

beyond dispute–and was clear in 2014-that there is no basis to

arrest people based on their sexual orientation. The plaintiffs

have plausibly alleged and provided support for the proposition

that the PAPD engaged in a de facto policy of discriminatory

policing that specifically targeted for arrest homosexual or

gender non-conforming men. The plaintiffs have further alleged

a failure to train officers, despite previous well-documented

failings in the past. In combination, the plaintiffs have

alleged the very policy decisions that the Supreme Court has

long recognized serve no legitimate government interest and are

insufficient to satisfy even rational basis review under the

Equal Protection Clause. See, e.g., Romer v. Evans, 517 U.S.

620, 634–35 (1996). Cf. Lawrence v. Texas, 539 U.S. 558, 584,

(2003) (O’Connor, J., concurring) (“[T]he State cannot single

out one identifiable class of citizens for punishment that does

not apply to everyone else, with moral disapproval as the only

asserted state interest for the law.”). Indeed, long before

Windsor, courts in this Circuit have recognized that government

discrimination based on “[s]exual orientation has been held to

be a basis for an equal protection claim under Section 1983.”

Emblen v. Port Auth. of N.Y. & N.J., No. 00-cv-8877, 2002 WL

498634, at *7 (S.D.N.Y. Mar. 29, 2002); Quinn v. Nassau County

Police Dep't, 53 F. Supp. 2d 347, 356–57 (E.D.N.Y. 1999); Tester

v. City of New York, No. 95-cv-7972, 1997 WL 81662 at *6

(S.D.N.Y. Feb. 25, 1997). Furthermore, courts have recognized

that discrimination based on perceived sexual orientation can be

sufficient to violate a plaintiff’s rights under the Equal

Protection Clause, even if the plaintiff is not actually a

member of the class. See Emblen, 2002 WL 498634, at *7.

Finally, given that anti-homosexual bias was one of the

theories that provided the basis of the Martinez case’s jury

verdict, Defs.’ 56.1 Resp. Stmt. ¶ 5, the specific rights at

issue—not to be targeted for search, seizure, and arrest without

probable cause, based on perceived sexual orientation or

nonheteronormative gender presentation–were plainly “clearly

established” with sufficient specificity.

To support their assertion, the defendants cite to dicta in

an employment discrimination case from 2010, involving events

occurring before 2008. Flaherty v. Massapequa Pub. Sch., 752 F.

Supp. 2d 286, 295 (E.D.N.Y. 2010), aff'd, 462 F. App'x 38 (2d

Cir. 2012). First, although the Flaherty Court noted that the

area of law “remains somewhat unsettled” and rested its opinion

on other grounds, the Court noted that “it is likely that a

person perceived as homosexual is in a protected class for equal

protection purposes.” Id. Moreover, given that the Second

Circuit’s decision in Windsor was issued in 2012 and affirmed in

2013, the Flaherty case offers no support for the defendants.

The defendants also seek to rely on the decision of the

Second Circuit Court of Appeals in Naumovski v. Norris, which

found individual officials were entitled to qualified immunity

for a claim of employment discrimination in violation of the

Equal Protection Clause, on the basis of sexual orientation

arising from conduct that occurred between 2008-2010. 934 F.3d

200, 207-09 (2d Cir. 2019). Naumovski involved a single

plaintiff, who brought an employment discrimination suit in

2011, prior to the decision in Windsor, and who made and then

appeared to abandon the argument that she was discriminated

against on the basis of sexual orientation. Naumovski, 934 F.3d

at 218 & n.66. The Naumovski court explained that qualified

immunity applied to the officials in that case because when the

alleged conduct occurred, Windsor had not yet been affirmed by

the Supreme Court. Accordingly, at that time “[i]t was,

therefore, not yet clear that all state distinctions based on

sexual orientation were constitutionally suspect.” Id. at 219.

By contrast, the events here all took place after the

decision of the Court of Appeals in Windsor and after it was

affirmed by the Supreme Court and the plaintiffs here have

alleged animus and systemic discrimination. Therefore, the

individual Officer Defendants are not entitled to qualified

immunity for the plaintiffs’ Equal Protection Clause claims.

B.

In the alternative, the defendants argue that the

plaintiffs’ Equal Protection Clause claim lacks factual support.

The defendants argue that the plaintiffs have failed to

demonstrate that the arresting officers were aware of the

plaintiffs’ sexual orientation or gender nonconformity, or that

the plaintiffs were intentionally discriminated against or

treated worse than “similarly situated” individuals.

To prevail on a claim of selective enforcement, the

plaintiffs must show (1) that they were treated differently from

other similarly situated individuals, and (2) that such

differential 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.’” Harlen Assocs. v.

Incorporated Vill. of Mineola, 273 F.3d 494, 499 (2d Cir. 2001).

Here, the plaintiffs have alleged that defendants violated

their rights to equal protection when the plaintiffs were

subjected to arrest without probable cause, which the plaintiffs

allege was the result of a deliberate targeting of gay or gender

non-conforming men by the PAPD officers. The plaintiffs have

presented evidence to show that the population of lewdness

arrests that occurred in the men’s bathroom during 2014, of

which the plaintiffs’ arrests are a part, were “idiosyncratic,”

occurred at counterintuitive times, and do not match the age or

racial characteristics of those arrested for other offenses, and

that the arrests were likely driven by “intentional policy

choices,” and “not incidental to routine police patrols and

stops.” Spitzer Decl. Ex. 12, at 9. The plaintiffs have

presented evidence to suggest there is a history in New York of

policing men’s bathrooms in order to target gay or gender non-

conforming men, and that the idiosyncratic arrests in 2014 were

part of that pattern. Id., Ex. 11 ¶¶ 7-9. Moreover, if credited,

the plaintiffs’ testimony about the way they were allegedly

targeted in the bathroom although they were not engaged in any

unlawful activity, combined with the evidence of their allegedly

gender non-conforming dress, could support an inference that

they were singled out because of their perceived sexual

orientation or gender presentation and not for any legitimate

reason. Defs.’ 51.6 Stmt. ¶ 15; Spitzer Decl. Ex. 15, at 125-36;

Ex. 16 at 126-27.

The defendants argue that the plaintiffs have both failed

to show the arresting officers knew of the plaintiffs’ sexual

orientation or gender non-conformity. The defendants argue that

the plaintiffs have only pleaded subjective “feelings” or

“perceptions” of being discriminated against because of their

sexual orientation. But the plaintiffs have plausibly alleged

that their sexual orientation or gender non-conformity was

apparent from their appearance, and, if their testimony is

credited, in light of the circumstances of their arrests, a

reasonable factfinder could conclude that the arresting

officers’ behavior within the bathroom suggests an attempt to

target based on those apparent characteristics. As such, the

defendants’ arguments that the plaintiffs have failed to

demonstrate they were treated worse than “similarly situated”

individuals are unpersuasive. The plaintiffs have presented

sufficient evidence such that a reasonable factfinder could

conclude that the plaintiffs were treated differently from other

PABT patrons in violation of their right to equal protection,

and that such differential treatment was related to an

impermissible consideration of their real or perceived sexual

orientation.

Moreover, the question of whether the arresting officers

were aware of the plaintiffs’ sexual orientation is a question

of fact that depends on an assessment of all the facts and that

cannot be resolved in the defendants’ favor on a motion for

summary judgment. McClellan v. Smith, 439 F.3d 137, 148 (2d Cir.

2006) (“Resolutions of credibility conflicts and choices between

conflicting versions of the facts are matters for the jury, not

for the court on summary judgment.”) (quoting United States v.

Rem, 38 F.3d 634, 644 (2d Cir. 1994)); cf. Savino v. Town of

Se., 983 F. Supp. 2d 293, 303 (S.D.N.Y. 2013) (conflicting

testimony demonstrated genuine issues of material fact existed

for selective enforcement claim based on national origin),

aff'd, 572 F. App'x 15 (2d Cir. 2014); Greenidge v. Costco

Wholesale, No. 09-cv-4224, 2012 WL 1077455, at *3 (E.D.N.Y. Mar.

30, 2012) (genuine dispute over material facts existed because

of conflicting testimony regarding whether defendants were aware

of plaintiff’s pregnancy prior to her termination).

Finally, the plaintiffs have presented sufficient evidence

from which a reasonable factfinder could conclude that the Port

Authority both had a de facto policy that caused the targeting

of gay or gender non-conforming men with unconstitutional police

tactics and failed to train and supervise its officers

appropriately.

V.

The defendants have moved for summary judgment on

plaintiffs’ Section 1983 claims against Officer Defendants

Kehoe, Esposito, DeMartino, Aylmer, Miller, O’Dell, and

Fitzpatrick, arguing that such claims are without legal or

factual support and, because they were not raised in the initial

complaint, they are time barred. The plaintiffs argue that each

of the non-arresting officers failed to ensure that the

arresting officers had established necessary probable cause for

the arrest of both plaintiffs and failed to supervise

appropriately the plain-clothes policing tactics used in the

PABT bathrooms. Further, the plaintiffs note that Captain

Fitzpatrick, as the Commanding Officer, in particular, appears

to have had a significant role in deciding and implementing the

PAPD’s official policies and strategic initiatives, including

the TPU and the alleged use of plainclothes officers to conduct

“Quality of Life” arrests.

A.

The plaintiffs’ claims against the non-arresting Officer

Defendants are time-barred. The Court of Appeals has concluded

that Section 1983 claims based on events that occurred within

New York State have 3-year statute of limitations. Hogan v.

Fischer, 738 F.3d 509, 517 (2d Cir. 2013); Berman v. Perez, No.

17-cv-2757, 2018 WL 565269, at *2 (S.D.N.Y. Jan. 24, 2018).

Generally, “‘John Doe’ pleadings cannot be used to circumvent

statutes of limitations because replacing a ‘John Doe’ with a

named party in effect constitutes a change in the party sued.”

Hogan, 738 F.3d at 517. As such, John Doe substitutions may

generally only occur after the statute of limitations has

passed, if the claims relate back to the original complaint and

the requirements of Fed. R. Civ. P. 15(c) are met. Id. The

Second Circuit Court of Appeals has also recognized that Rule

15(c)(1)(A) permits certain plaintiffs to take advantage of the

more lenient New York State relation-back standard for

substituting unknown defendants under N.Y. C.P.L.R. § 1024.

Under that standard, a claim against a John Doe defendant is

timely if (1) the plaintiff “exercise[d] due diligence, prior to

the running of the statute of limitations, to identify the

defendant by name,” and (2) the party described the John Doe

party “in such form as will fairly apprise the party that [he]

is the intended defendant.” Hogan, 738 F.3d at 519.

In this case, the events occurred in May and July of 2014,

and the plaintiffs’ original complaint was filed on March 27,

2017, and named only Officers Opromalla, Tone, and Kehoe. It

did not include Captain Fitzpatrick, even though Captain

Fitzpatrick was quoted in the New York Times article that the

plaintiffs’ attached as an exhibit to the original complaint.

The defendants note that the CCRs, which were provided on July

6, 2017, as part of the Rule 26 disclosures, provided the names

of Esposito, DeMartino, Aylmer, Miller, Cruz, and O’Dell.

Nevertheless, the plaintiffs did not file a First Amended

Complaint, adding Esposito, DeMartino, and Aylmer, until three

months later on October 6, 2017, and did not file the Second

Amended Complaint, adding Miller, Cruz, and O’Dell, until

November 28, 2018.

The claims against Captain Fitzpatrick are time-barred. He

was known to the plaintiffs at the time they filed their First

Amended Complaint, because he was quoted in the New York Times

article attached to their original complaint, and they chose not

to sue him. The plaintiffs failed to bring their claims against

him within the statute of limitations period, and the plaintiffs

cannot rely on New York’s more lenient relation-back standard.

Liverpool v. Davis, 442 F. Supp. 3d 714, 726 (S.D.N.Y. 2020)

(plaintiffs “failure to mention” a known defendant was “not the

type of mistake contemplated by New York's relation-back rule”);

see also Maurro v. Lederman, 795 N.Y.S.2d 867, 870 (Sup. Ct.

2005) (“An explicit prerequisite to the use of C.P.L.R. § 1024

is plaintiff's ignorance of the defendant's name.”).

The plaintiffs also cannot rely on the more lenient

standard of C.P.L.R. § 1024 for their claims against defendants

Esposito, DeMartino, Aylmer, Miller, Cruz, and O’Dell, because

the allegations in the original complaint against the John Doe

defendants were so general that they did not provide notice to

those defendants that they were intended defendants in this

lawsuit.

B.

The plaintiffs have also failed to demonstrate a sufficient

factual basis for their claims against the Officer Defendants,

other than Officers Opromalla and Tone.

The plaintiffs have failed to provide sufficient support

for their claims against Officer Kehoe. Although Officer Kehoe

was present for both plaintiffs’ arrests, the parties agree that

Officer Kehoe was standing outside the bathroom while Officers

Tone and Opromalla went into the bathroom and that Officers Tone

and Opromalla prepared the plaintiffs’ respective arrest

paperwork. In Mejia’s case, Mejia does not appear to allege that

Officer Kehoe was the alleged “short” plainclothes officer who

“smirked” at him, and Officer Tone was the only officer to

testify at Mejia’s trial. The plaintiffs note that Officer Kehoe

was among the five officers responsible for the majority of the

Public Lewdness arrests in 2014, Spitzer Decl. Ex. 12 ¶ 32, but

there is no evidence in the record to establish a genuine issue

regarding whether Officer Kehoe had reason to disbelieve the

description of the plaintiffs’ conduct given by Officers Tone

and Opromalla. The Court of Appeals has instructed that for

purposes of making a probable cause determination, police

officers are entitled to rely on the allegations of fellow

police officers. Martinez v. Simonetti, 202 F.3d 625, 634 (2d

Cir. 2000); Bernard v. United States, 25 F.3d 98, 102–03 (2d

Cir. 1994). As such, there are no genuine issues regarding

Officer Kehoe’s personal involvement in the plaintiffs’ alleged

false arrests, because Officer Kehoe’s mere presence at the

scene is not a sufficient factual basis to establish liability.

Minter v. City Of Westchester, No. 08-cv-7726, 2011 WL 856269 at

*7 (S.D.N.Y. Jan. 20, 2011).

The plaintiffs have similarly failed to demonstrate a

sufficient factual basis for their claims against the remaining

non-arresting Officer Defendants, who served in supervisory

capacities: Esposito, DeMartino, Aylmer, Miller, O’Dell, and

Fitzpatrick.

Prior to the Supreme Court’s decision in Ashcroft v. Iqbal,

556 U.S. 662 (2009), within the Second Circuit, “the personal

involvement of a supervisory defendant [could have been] 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 to the rights of [plaintiffs] by failing to act on

information indicating that unconstitutional acts were

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

After Iqbal, there was considerable uncertainty as to whether

each of the five Colon factors remained a sufficient basis for

establishing individual liability for supervisors. See

Reynolds v. Barrett, 685 F.3d 193, 205 & n.14 (2d Cir. 2012);

Compare Brandon v. Kinter, 938 F.3d 21, 36 (2d Cir. 2019)

(applying Colon factors without caveats), with Lombardo v.

Graham, 807 F. App'x 120, 124 & n.1 (2d Cir. 2020) (noting that

the Court need not reach the issue of whether all five Colon

factors remain sufficient bases for liability). But the Court of

Appeals for the Second Circuit has recently emphasized that

“there is no special rule for supervisory liability,” after

Iqbal, and thus, a “plaintiff must plead that each Government-

official defendant, through the official’s own individual

actions, has violated the Constitution.” Tangreti v. Bachmann,

983 F.3d 609, 616 (2d Cir. 2020). The plaintiffs cannot rely

“on a separate test of liability specific to supervisors.” Id.

at 619.

Here, the plaintiffs’ briefs appear to assert that the

supervisory Officer Defendants individually participated through

their failure to ensure that sufficient probable cause existed

for the plaintiffs’ arrest and for failing to supervise the

plainclothes officers’ policing of the PABT bathrooms and

failing to ensure that arrests were not made based on

impermissible bias.

However, the plaintiffs have failed to establish a

sufficient basis for finding Lt. Aylmer, Sgt. DeMartino, Sgt.

Esposito, Lt. O’Dell, and Sgt. Miller’s own individual actions

in connection with their review of post-arrest paperwork

violated the Constitution. The plaintiffs have not alleged that

these officers had knowledge of the arrests before they

occurred, and their involvement was solely in connection with

the post-arrest paperwork. But officers are “entitled to rely on

the allegations of fellow police officers” who were present “at

the scene.” See, e.g., Martinez v. Simonetti, 202 F.3d 625, 634-

35 (2d Cir. 2000). The plaintiffs have presented no evidence

that Lt. Aylmer, Sgt. DeMartino, Sgt. Esposito, Lt. O’Dell, or

Sgt. Miller had any reason to know that Officers Tone or

Opromalla did not have probable cause for the arrests at the

time. Both Officers Opromalla and Tone have admitted both to

making the arrests and completing the arrest paperwork, and

there is no evidence in the record to suggest genuine issues of

fact regarding whether the supervising officers personally

participated in making arrests without probable cause or

falsifying arrest records.

Similarly, the plaintiffs argue that Captain Fitzpatrick is

personally responsible for establishing a policy and practice

of, among other things, emphasizing “Public Lewdness” and

“Quality of Life” crimes, failing to supervise officers under

his command, and for directing Officer Opromalla to “continue to

enforce” Public Lewdness laws while assigned to plainclothes

policing. At best, plaintiffs have presented evidence

suggesting Captain Fitzpatrick was indifferent to the risks of

unconstitutional false arrests or equal protection violations,

caused by the combination of the officers’ lack of adequate

training, and his alleged emphasis on policing Public Lewdness.

But there is insufficient evidence in the record to show that

Captain Fitzpatrick was personally involved in the arrests of

the plaintiffs with an awareness that the arrests were made

without probable cause or based on an impermissible bias.

Thus, the plaintiffs have failed to adduce sufficient

evidence from which a reasonable jury could conclude that the

non-arresting officers were personally involved in any

constitutional violations.

VI.

The defendants argue that the plaintiffs’ general

allegations that their rights to “due process under the

Fourteenth Amendment” were violated because they were targeted

based on their perceived sexual orientation or gender non-

conformity fail to state a claim. The defendants further assert

that the plaintiffs’ claims that their liberty interests in

privacy were violated by the defendants’ actions are not

cognizable. The defendants have also contended that-to the

extent that the plaintiffs allege unlawful entrapment-such an

allegation is not an independent ground for civil liability.

To state a claim for a violation of a plaintiff’s

substantive due process rights under the Fourteenth Amendment, a

plaintiff must allege some valid liberty or property interest,

upon which the defendants infringed. Harlen Assocs., 273 F.3d at

503. While the Supreme Court has recognized that the Due

Process Clause protects certain substantive liberty interests in

privacy and bodily integrity, the plaintiffs here are not

challenging the Public Lewdness statute as being

unconstitutionally vague or otherwise facially invalid and are

instead only challenging its specific application to their

alleged unlawful search, seizure, and false arrest without

probable cause. As a result, the plaintiffs’ due process

allegations in their complaint sound in the Fourth Amendment’s

prohibition against unreasonable searches and seizures. When

faced with similar claims, courts in this Circuit have been

instructed that the Fourth Amendment, rather than Fourteenth

Amendment’s Due Process clause, should serve as the “guide for

analyzing these claims,” given the more “explicit textual source

of constitutional protection.” Russo v. City of Bridgeport, 479

F.3d 196, 209 (2d Cir. 2007) (quoting Graham v. Connor, 490 U.S.

386, 395 (1989)); Lauro v. Charles, 219 F.3d 202, 208 (2d Cir.

2000); Abreu v. City of New York, No. 17-cv-6179, 2018 WL

3315572, at *8 (S.D.N.Y. July 5, 2018); Ambrose v. City of New

York, 623 F. Supp. 2d 454, 474 & n.9 (S.D.N.Y. 2009).

Although the plaintiffs stated at oral argument that they

intend to pursue their substantive due process claims, their

brief only discusses invasion of privacy in the context of the

alleged violations of their Fourth Amendment rights.

Next, as the plaintiffs correctly note, their Second

Amended Complaint does not include a standalone “entrapment”

claim, and thus, the defendants’ arguments that entrapment is

not an independent ground for liability under Section 1983 are

irrelevant.

Therefore, the defendants are entitled to summary judgment

dismissing the plaintiffs’ claims based on alleged violations of

the Fourteenth Amendment’s Due Process Clause.

VII.

The defendants assert that neither the Port Authority nor

the PAPD can be held liable for punitive damages. Although the

Court of Appeals for the Second Circuit has not addressed the

question, other courts in this district have applied to the Port

Authority the Supreme Court’s reasoning in City of Newport v.

Fact Concerts, Inc., 453 U.S. 247, 261 (1981), that

municipalities should not be subject to punitive damages. Vernon

v. Port Auth. of N.Y. & N.J., 154 F. Supp. 2d 844, 860 (S.D.N.Y.

2001) (collecting cases). While the Port Authority is a self-

financing agency, funded by user fees, the wrongdoing of the

Port Authority’s officials should not be borne by the public

generally. The combination of the Port Authority’s liability

for compensatory damages and individual officer liability for

both compensatory and punitive damages should be sufficient to

satisfy the goal of deterrence. Thus, the Court is persuaded to

join the majority of courts to have considered the issue and

find that the Port Authority—and the PAPD as one of its

constituent agencies—is immune from punitive damages. See

Evans v. Port Auth. of N.Y. & N.J., 273 F.3d 346, 357 (3d Cir.

2001); Ryduchowski v. Port Auth. of N.Y. & N.J., No. 96-cv-5589,

1998 WL 812633, at *15 (E.D.N.Y. Nov. 19, 1998). In a letter,

filed after oral argument, the plaintiffs have conceded that

punitive damages are not available against the Port Authority.

ECF No. 249.

CONCLUSION

The Court has considered all of the arguments of the

parties. To the extent not specifically addressed above, the

remaining arguments are either moot or without merit. For the

reasons explained above, the defendants’ motion for summary

judgment is denied in part and granted in part. The Clerk is

directed to close Docket Nos. 201 & 226.

SO ORDERED.

Dated: New York, New York

February 22, 2021 ____/s/ John G. Koeltl_______

John G. Koeltl

United States District Judge