Owen v. City of Buffalo

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

GREGORY OWEN,

Plaintiff,

v. 16-CV-743

DECISION AND ORDER

CITY OF BUFFALO, NEW YORK;

DANIEL DERENDA, in his official

capacity as Police Commissioner of the

Buffalo Police Department;

MICHAEL QUINN, individually and in his

official capacity as Lieutenant in the

Buffalo Police Department;

JOSEPH WALTERS, individually and in

his official capacity as Police Officer; and

CHARLES SKIPPER, individually and in

his official capacity as Police Officer in the

Buffalo Police Department,

Defendants.

Gregory Owen had a message he wanted to share with as many people as he

could. He thought that a good place to share that message would be at a political event

where a large crowd was expected to gather. But when he got there, he was confronted

by police officers who told him that he could not deliver his message where and when

he wanted to deliver it.

Owen claims that the police violated his right to speak freely about his religion.

The police say that they were simply controlling the crowd and ensuring the safety and

movement of pedestrian traffic. And the question therefore is which set of interests

trumps the other under the circumstances here.

BACKGROUND

On April 18, 2016, then-candidate Donald Trump was in Buffalo, New York, for a

campaign rally at the First Niagara Center. See Docket Item 14-2 at 1 (Defendants’

Statement of Facts); Docket Item 17 at 1 (Plaintiff’s Answering Affidavit). To maintain

crowd control, the Buffalo Police permitted those with tickets to the event to proceed to

its entrance but segregated “protestors” in a separate location. Docket Item 17 at 2.

Gregory Owen fit into neither category. He was not at the First Niagara Center “to

protest anything.” Id. Instead, he was “there to speak to people about the Gospel of

Jesus Christ.” Id.

Owen is “an evangelical, born-again Christian . . . who strongly desires to share

the Gospel (good news) of his faith.” Docket Item 1 (Complaint) at 3. In fact, he was

outside the First Niagara Center before the Trump rally to do just that. While he was

“handing out gospel tracts” on the sidewalk leading to the arena, Owen was approached

by the defendant police officers who asked him to cross the street to join the

“protestors.” Id. at 6; Docket Item 14-3 (Plaintiff’s Deposition) at 34. When Owen

refused, the officers told him that if he did not leave the immediate area he would be

arrested. Id. at 36-38. Owen did not leave as directed, and the police made good on

their threat. Id. at 38, 42.

Owen refused to move as instructed by the officers because he believed they

were mistaken. According to Owen, the officer who asked him to move “was aware of

only two types of people at the rally: Attenders and Protestors.” Docket Item 17 at 2.

Owen was neither. So when he “was asked to move to the ‘protest area,’” he

“explained, truthfully, that [he] was not there to protest.” Id. at 3. After he was told that

he had five seconds to move or be arrested, he “politely but repeatedly asked” what he

would be “arrested for.” Id. at 3-4. The officer “ignored [his] questions,” however, and

arrested him after the five seconds were up. Id. at 4.

Owen was charged with four counts of disorderly conduct under New York Penal

Law § 240.20 for engaging in threatening behavior, making unreasonable noise, using

obscene language, and obstructing vehicular or pedestrian traffic. See Docket Item 14-

2 at 5; Docket Item 17 at 4-5.1 All charges against Owen eventually were dismissed.

Id.

Owen then sued the City of Buffalo and several members of its police

department. Docket item 1. In his complaint, Owen alleged that the defendants

abridged his freedom of speech—in particular, his religious speech; denied him his right

1 New York Penal Law section 240.20 provides:

A person is guilty of disorderly conduct when, with intent to cause

public inconvenience, annoyance or alarm, or recklessly creating a risk

thereof:

1. He engages in fighting or in violent, tumultuous or threatening

behavior; or

2. He makes unreasonable noise; or

3. In a public place, he uses abusive or obscene language, or

makes an obscene gesture; or

. . .

5. He obstructs vehicular or pedestrian traffic . . . .

Id.

to due process; and wrongfully arrested and imprisoned him. He seeks damages as well

as equitable relief.

After the parties conducted extensive discovery, the defendants moved for

summary judgment. Docket Item 14. They argued that Owen’s due process claim

should be dismissed because it was based on his First Amendment claim and was

therefore duplicative; that his First Amendment claim should be dismissed because his

arrest was based on a content-neutral, crowd-control decision by the police; and that his

false arrest and imprisonment claim should be dismissed because he refused to comply

with a lawful order to disperse, thereby giving the police ample reason to take him into

custody. Docket Items 14, 21. In his responding affidavit and memorandum of law,

Owen argued that his due process claim was based on the defendants’ failure to follow

the New York Criminal Procedure Law and therefore not duplicative; that there is a

question of fact as to whether the arresting officer knew, and arrested Owen because

of, the content of his speech; and that the police had no valid reason to arrest him. See

Docket Items 17, 19. He also argued that the defendants were not entitled to qualified

immunity because a reasonable police officer would have known that he “did nothing

that warranted his arrest.” Docket Item 19 at 7.

After the defendants replied, the Court heard oral argument. See Docket Item

25. For the reasons that follow, the defendants’ motion is granted.

DISCUSSION

I. LEGAL STANDARD

“A motion for summary judgment may be granted ‘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.’” Soto v. Gaudett, 862 F.3d 148, 157 (2d Cir. 2017) (quoting Fed. R. Civ.

P. 56(a)). “Summary judgment is appropriate when ’there can be but one reasonable

conclusion as to the verdict,’ i.e., ‘it is quite clear what the truth is,’ and no rational

factfinder could find in favor of the nonmovant.” Id. (first quoting Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 250 (1986); second quoting Poller v. Columbia Broadcasting

System, Inc., 368 U.S. 464, 467 (1962)). On the other hand, “[s]ummary 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.” Id. (citation

omitted). In deciding whether to grant summary judgment, a court “cannot properly

make credibility determinations or weigh the evidence. Credibility determinations, the

weighing of the evidence, and the drawing of legitimate inferences from the facts are

jury functions, not those of a judge.” Id. (quoting Anderson, 477 U.S. at 255).

II. DUE PROCESS CLAIM

In his response to the defendants’ motion, Owen claims that his due process

claim is grounded not in so-called “substantive due process” but rather in the

defendants’ failure to follow “their policies and practices” which are inherently “vague

and lack sufficient objective standards to curtail the discretion of government officials.”

Docket Item 19 at 4. More specifically, Owen argues that the defendants “fail[ed] to

meet the requirements of [New York Criminal Procedure Law] 110.15 regarding the

standards for a misdemeanor information.” Id. Because the charging instrument is so

conclusory, he reasons, he was deprived of the process guaranteed under the

Constitution. Id. at 4-5.

“A procedural due process violation occurs ‘when the government deprives a

person of a protected life, liberty, or property interest without first providing notice and

an opportunity to be heard.’” Norton v. Town of Islip, 97 F. Supp. 3d 241, 266 (E.D.N.Y.

2015) (quoting B.D. v. DeBuono, 130 F. Supp .2d 401, 432-33 (S.D.N.Y. 2000)). But

because “state statutes do not create federally protected due process entitlements,” the

alleged failure to follow the New York Criminal Procedure Law does not, on its own,

state a viable due process claim. See Holcomb v. Lykens, 337 F.3d 217, 224 (2d Cir.

2003). “Indeed, a contrary rule would bring within the scope of section 1983 myriad

claimed violations of local laws, thus confusing the separate provinces of state and

national laws that are central to our federal system.” McDarby v. Dinkins, 907 F.2d

1334, 1337 (2d Cir. 1990).

The relevant question therefore is not whether the information met the

requirements of New York Criminal Procedure Law section 110.15, but whether Owen

was afforded “notice and an opportunity to be heard,” see Norton, 97 F. Supp. 3d at

266. And conclusory or not, the charging instrument “sufficiently inform[ed] [Owen] of

the charges against him and provide[d] enough detail so that he may plead double

jeopardy in a future prosecution based on the same set of events.” United States v. De

La Pava, 268 F.3d 157, 162 (2d Cir. 2001) (alteration in original) (citation omitted); see

also Norton, 97 F. Supp. 3d at 267 (prosecution based on facially insufficient

information not cognizable as a federal due process claim). Owen’s due process claim

is therefore dismissed.

III. FIRST AMENDMENT CLAIM

The First Amendment prohibits the government from abridging the right of free

speech. But “the First Amendment does not guarantee the right to communicate one’s

views at all times and places or in any manner that may be desired.” Heffron v. Int’l

Soc. for Krishna Consciousness, Inc., 452 U.S. 640, 647 (1981). “Restrictions on

speech in designated public fora are constitutional . . . if they are content-neutral time,

place, and manner restrictions that are (1) necessary to serve a compelling state

interest and (2) narrowly drawn to achieve that interest.” Hotel Emps. & Rest. Emps.

Union, Local 100 of New York, N.Y. & Vicinity, AFL CIO v. City of New York Dep’t of

Parks & Recreation, 311 F.3d 534, 545 (2d Cir. 2002) (quoting Cornelius v. NAACP

Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 800 (1985). Regulating the flow of traffic

at events like the Trump rally qualifies as the sort of circumstance that might well give

rise to a valid time, place, and manner restriction. See Marcavage v. City of New York,

689 F. 3d 98, 104-05 (2d Cir. 2012).

To constitute a valid time, place, and manner restriction, government action must

apply without regard to the content of the speech, be “narrowly tailored to serve a

significant governmental interest, and . . . leave open ample alternative channels for

communication of the information.” Id. at 104 (alterations omitted) (quoting Ward v

Rock Against Racism, 491 U.S. 781, 791). In other words, the restriction must restrict,

not prohibit, the speech at issue; provide other means to communicate that speech; and

apply across the board regardless of the message.

Here, there is little doubt that the police had a significant interest in controlling

traffic at the Trump rally. The City of Buffalo “certainly ha[d] a significant interest in

keeping its public spaces safe and free of congestion.” See Bery v. City of New York,

97 F.3d 689, 697 (2d Cir. 1996). As anyone who has ever attended an event at what

was then called the First Niagara Center knows, the area around the arena becomes

nearly impossible to navigate at the time of a well-attended event, and the Trump rally

was well attended. Indeed, Owen avers that the very reason he was at the event was to

“share his message with a large number of people that would not otherwise receive it.”

Docket Item 1 at 5. Furthermore, “there can be no doubting the substantial government

interest in the maintenance of security at political conventions.” Bl(a)ck Tea Soc’y v.

City of Bos., 378 F.3d 8, 12 (1st Cir. 2004).

Likewise, there is little doubt that an ample alternative venue for speech was

provided. The defendants’ statement of facts submitted in support of their motion for

summary judgment states that “[d]esignated areas, including one” just a block away

from the event “were established [for] demonstrators.” Docket Item 14-2 at 2. In his

answering affidavit, Owen does not deny that assertion. See Docket Item 17 at 2.

Instead, he says that he was not a “demonstrator”—he “was not there to protest

anything”—and so the designated area was not for him. Id. But the label Owen

chooses to apply to his conduct does not defeat the undisputed fact that there existed a

reasonably-accessible alternative avenue for his speech. See also Marcavage, 689

F.3d at 107 (where there was an “ample alternative channel for protestors” located at an

alternative entrance a block away, rather than at the main entrance).

The only real question is whether the restriction was content neutral—that is,

whether Owen was precluded from proselytizing and pamphleteering because of his

message. “Content neutral” regulations refer to limitations on speech that are “justified

without reference to the content of the regulated speech.” Va. State Bd. of Pharmacy v.

Va. Citizens Consumer Council, Inc., 425 U.S. 748, 771 (1976). “The principal inquiry

. . . is whether the government has adopted a regulation of speech because of

disagreement with the message it conveys.” Ward, 491 U.S. at 791.

Owen takes issue with the defendants’ assertion that the arresting officer “did not

know the content of plaintiff’s speech, much less disagree with it.” Docket Item 17 at 2

(citing Docket Item 14-2 at 5). He notes that because the officer heard him speak, and

because the message was prominently displayed on a banner Owen had been carrying,

the officer almost certainly knew the content of the speech. Docket Item 17 at 2.

But even accepted as true, as they must be on this motion for summary

judgment, the plaintiff’s assertions do not create a material issue of fact. Whether or not

the arresting officer knew the content of the speech is not what is at issue; rather, the

question is whether the officer singled Owen out because of that content. And the

plaintiff has not offered any factual support for the proposition that the content of his

speech resulted in his being asked to move or his arrest.

For example, Owen does not suggest that others with different messages were

permitted to speak or hand out literature on the street restricted to attendees. The

closest he comes is his statement in the complaint that he saw “individuals . . . freely

walking into and out of the sidewalk along Washington Street [the street leading to the

arena]” as well as “demonstrators . . . carrying signs and yelling slogans and chants to

other people in the vicinity.” Docket Item 1 at 5-6. But he does not offer any evidence

that others with different messages were allowed to hand out literature or engage in

speech-related activities on the sidewalk approaching the arena, that others without

tickets were allowed to congregate in the area reserved for ticketholders, or that he

otherwise was singled out in any way.

On the contrary, Owen’s point is that the dichotomy the police used to segregate

the crowd—attendees and demonstrators—was a false dichotomy; that he was neither;

and that he therefore was within his rights in refusing to obey the mistaken order of the

police to move to the area assigned to demonstrators. But the fact that the police may

have labeled everyone without a ticket incorrectly as a protester, or may have

incorrectly assumed that everyone who was not there to attend was there to

demonstrate, does not turn a valid time, place, and manner restriction into a

constitutional violation.

The fact is that by his own admission Owen did not have a ticket and was

preaching and distributing literature in a place where the police were controlling the

crowd by not permitting such activities—and not even permitting those without tickets to

remain. Nothing about that unconstitutionally restricted speech.

Indeed, it is the policy that Owen appears to advocate (restrict protesters’ political

speech but permit his religious speech on the street leading to the arena) that poses a

serious risk of violating citizens’ First Amendment rights. As the Second Circuit has

observed, “[p]olicing a less than clear-cut regulation” would “vest line-level officers with

power and discretion to determine” which demonstrators may remain and which must

relocate, “risk[ing] the fact or appearance of selective enforcement based on content.”

Marcavage, 689 F.3d at 106. If only protesters were relegated to the assigned area and

all others allowed to speak and pamphleteer wherever they wanted, such action would

not be content neutral. What is more, if Owen “were allowed a dispensation, ‘so too

must other groups,’ which would then create ‘a much larger threat to the State’s interest

in crowd control’ and security.” Id. (quoting Int’l Soc’y for Krishna Consciousness, Inc.

v. Lee, 505 U.S. 672, 685 (1992)).

The video Owen offered of the events that day underscores this conclusion.

There is no evidence of others with different messages being permitted to speak,

congregate, proselytize, or hand out pamphlets. On the contrary, it appears that those

with tickets were permitted to proceed to the arena entrance; those without were not.

Nothing about that crowd-control tactic suggests that the defendants’ actions in

restricting Owen’s speech “contravene[ed] the fundamental principle that underlies [the]

concern about ‘content-based’ speech regulations: that ‘government may not grant the

use of a forum to people whose views it finds acceptable, but deny use to those wishing

to express less favored or more controversial views.’” City of Renton v. Playtime

Theatres, Inc., 475 U.S. 41, 48-49 (1986) (quoting Police Dept. of Chicago v. Mosley,

408 U.S. 92, 95-96 (1972)); see also Marcavage, 689 F.3d at 104 (observing that “no-

demonstration zone” around political convention was a content neutral regulation

because “no demonstrating of any kind was allowed in that zone”).

In sum, there is no reason to conclude other than that the police were enforcing a

valid time, place, and manner restriction narrowly drawn to serve the important

government interest in crowd control. The plaintiff’s First Amendment claim is therefore

dismissed as well.

IV. FALSE ARREST/ FALSE IMPRISONMENT CLAIM

Owen fares no better on his claim for false arrest and imprisonment.

A section 1983 claim for false arrest, resting on the Fourth Amendment right of

an individual to be free from unreasonable seizures, is substantially the same as a claim

for false arrest under New York law. Jaegly v. Couch, 439 F.3d 149, 152-54 (2d Cir.

2006). “Under New York law, the existence of probable cause is an absolute defense to

a false arrest claim.” Id. at 152 (citing Weyant v. Okst, 101 F.3d 845, 852 (2d Cir.

1996).2 “An officer has probable cause to arrest when he or she has ‘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. (quoting Weyant, 101 F.3d at 852).

Significantly, “a claim for false arrest turns only on whether probable cause existed to

arrest a defendant, and . . . it is not relevant whether probable cause existed with

2 To the extent Owen attempts to bring a hybrid First and Fourth Amendment

claim, the Court notes that “[t]he existence of probable cause defeats a First

Amendment claim premised on the allegation that defendants arrested a plaintiff based

on a retaliatory motive.” Meyers v. City of New York, 2020 WL 2079458, at *2 (2d Cir.

Apr. 30, 2020) (summary order) (quoting Caravalho v. City of New York, 732 F. App’x

18, 23 (2nd Cir. 2018)). “Though a narrow exception exists where there is ‘objective

evidence’ that the police refrained from arresting similarly situated people not engaged

in speech,” Owen has alleged “no such facts . . . here.” See id. (quoting Nieves v.

Bartlett, 139 S. Ct. 1715, 1727 (2019)); see also Nieves, 139 S. Ct. at 1727 (explaining

that “a narrow qualification is warranted for circumstances where officers have probable

cause to make arrests, but typically exercise their discretion not to do so”). For

example, Owen has not “present[ed] objective evidence that he was arrested when

otherwise similarly situated individuals not engaged in the same sort of protected

speech [were] not.” See id. Stated more concretely, to the extent Owen claims that the

defendants arrested him in retaliation for his speech, this claim is not immune from the

defendants’ showing of probable cause because Owen has not presented evidence that

other individuals who, like him, lacked a ticket for the Trump rally were, unlike him, not

arrested after refusing to leave the no-protest zone.

respect to each individual charge, or, indeed, any charge actually invoked by the

arresting officer at the time of arrest.” Id. at 154. “Stated differently, when faced with a

claim for false arrest, [courts] focus on the validity of the arrest, and not on the validity of

each charge.” Id.

The defendants argue that even if the arresting officers did not have probable

cause to believe that Owen committed any of the four disorderly conduct offenses with

which he was charged, they at least had probable cause to believe that he violated a

different subsection of the disorderly conduct statute. See Docket Item 14-10 at 9-10.

Under New York Penal Law section 240.20(6), “[a] person is guilty of disorderly conduct

when, with intent to cause public inconvenience, annoyance or alarm, or recklessly

creating a risk thereof[,] . . . [h]e congregates with other persons in a public place and

refuses to comply with a lawful order of the police to disperse.” Owen’s argument in

response amounts to a factual defense to the charge: He did not “congregat[e] with

others, and he was not part of a crowd,” he says. How then could he be charged with

violating a statute that prohibits congregating with others in a public place and refusing

a lawful order of the police to disperse, he asks. See Docket Item 19 at 6-7.

Owen’s argument hinges on a strained and narrow view of what it means to

“congregate,” however. Indeed, he admits that the very reason he was where he was

and did not want to leave was precisely because of the large crowd to whom he wanted

to preach the gospel. The statute does not require those who congregate to do so for

the same purpose. And even if it did, Owen testified that he was with at least six other

church members around the time of his arrest, including at least two who were

physically close enough to appear in the video footage. See Docket Item 14-3 at 15-16,

39-40. Cf. People v. Carcel, 3 N.Y.2d 327, 333 (1957) (“The term “congregates with

others”, as used in the statute, requires at the very least three persons assembling at a

given time and place. It would be an unjustifiably liberal interpretation . . . and at

variance with the strict construction called for in [disorderly conduct] cases to hold that

the defendants here, only two in number and as appears from the record not even

standing together, were ‘congregating with others.’” (citation omitted)). Contrary to

Owen’s argument, his behavior could well have led a reasonable officer to conclude that

he had congregated with others.

Owen also argues that he could not have been charged with disorderly conduct

because he did not have the requisite mens rea—he did not intend “to cause public

inconvenience, annoyance or alarm.” See Docket Item 19 at 8-9. But police do not

need proof of a suspect’s intent to arrest him; if they did, police would make few arrests.

See also Meyers v. City of New York, 2020 WL 2079458, at *2 (2d Cir. Apr. 30, 2020)

(summary order) (“We have made clear that a defendant may be guilty of disorderly

conduct regardless of whether the action results in public inconvenience, annoyance or

alarm if the conduct recklessly creates a risk of such public disruption.” (quoting People

v. Weaver, 16 N.Y.3d 123, 128 (2011)). Here, the arresting officer asked Owen to move

multiple times, and Owen did not comply. That was enough to arrest him based on the

risk that he would create a public disruption. See, e.g., Pinto v. City of New York, 728

F. App’x 26, 32 (2d Cir. 2018) (summary order) (arrest for refusal to comply with police

officer’s lawful order to move to a particular location); Marcavage, 689 F.3d at 110

(arrest of demonstrators for refusal to move to designated demonstration zone).

What is more, even if Owen did not violate the disorderly conduct statute, he

certainly could have been arrested for simply refusing to comply with the lawful order of

a police officer and therefore obstructing governmental administration. “A person is

guilty of obstructing governmental administration when he intentionally obstructs,

impairs or perverts the administration of law or other governmental function or prevents

or attempts to prevent a public servant from performing an official function, by means of

intimidation, physical force or interference, or by means of any independently unlawful

act . . . .” New York Penal Law § 195.05. “An officer has

probable cause to arrest for obstructing governmental administration where a

person refuses to comply with a [lawful] order from a police officer.” Murray v.

Ruderfer, 2017 WL 1194371, at *5 (S.D.N.Y. 2017) (citation omitted) (collecting cases).

So even if Owen is correct that there was no probable cause to arrest him for disorderly

conduct, his false arrest claim still fails.

Finally, even if all that were not true, the defendants still would be protected by

qualified immunity, which shields the police from civil liability for “mistakes in judgment,

whether the mistake is one of fact or one of law.” Pearson v. Callahan, 555 U.S. 223,

231 (2009). Therefore, even if the police lack any probable cause to arrest, they still do

not face liability for the arrest “if there was arguable probable cause for the plaintiff’s

arrest.” Pinto, 728 F. App’x at 30 (emphasis in original). “Arguable probable cause

exists if either (a) it was objectively reasonable for the officer to believe that probable

cause existed, or (b) officers of reasonable competence could disagree on whether the

probable cause test was met.” Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004)

(citation omitted). “In other words, an officer is entitled to qualified immunity unless no

officer of reasonable competence could have made the same choice in similar

circumstances.” Kass v. City of New York, 864 F.3d 200, 206 (2d Cir. 2017) (citation

omitted).

Here, the police were trying to control a large crowd and move traffic smoothly

when Owen refused to comply with several directions to move. The police did not have

the time to engage him about whether he was a demonstrator or to debate him about

the propriety of what any of them were doing. All the arresting officers knew was that

Owen was somewhere they thought he shouldn’t be and that he would not leave after

being asked to do so several times. Holding the police liable for an arrest under such

circumstances would not only be contrary to established law but would severely hamper

the police whenever they face the prospect of controlling large crowds or moving large

numbers of people.

In sum, the police had probable cause to arrest Owen and take him into custody

for disorderly conduct. Even if they did not have probable cause to arrest him for that

offense, they had probable cause to arrest and take him into custody for simply

disobeying the lawful order of a police officer. And even if they did not have probable

cause for that offense either, they still would be protected from liability by qualified

immunity. The defendants are entitled to summary judgement on the plaintiff’s false

arrest and false imprisonment claim.

CONCLUSION

The reasonable restriction on the time, place, and manner of Owen’s speech did

not violate his rights under the First Amendment. The charges lodged against him did

not violate his right to due process, nor did they subject him to false arrest or detention.

The defendants’ motion for summary judgment is therefore granted, and the case is

dismissed. The Clerk of Court shall close this case.

SO ORDERED.

Dated: June 7, 2020

Buffalo, New York

/s/ Hon. Lawrence J. Vilardo

LAWRENCE J. VILARDO

UNITED STATES DISTRICT JUDGE