The opinion
UNITED STATES DISTRICT COURT aos oct deci
SOUTHERN DISTRICT OF NEW YORK Se ee re
Xx DOC #__ Pes
MARYELLEN NOVAK, a ee
Plaintiff,
-against-
THE CITY OF NEW YORK, NEW YORK CITY 25-cv-3734 (CM)
POLICE DEPARTMENT OFFICER ASHLEY
MAHARAYJ, in her individual capacity; NEW YORK
CITY POLICE DEPARTMENT OFFICER QASIM
MUSHTAQ, in his individual capacity, NEW YORK
CITY POLICE DEPARTMENT OFFICERS “JOHN
DOE” #1—5, in their individual capacities; NEW
YORK CITY POLICE DEPARTMENT DEPUTY
INSPECTOR NEIL ZUBER, in his individual
capacity,
Defendants.
See eee eae iti
OPINION AND ORDER
McMahon, J.:
Plaintiff Maryellen Novak brings this action against the City of New York (the “City”) and
several New York City Police Department officers (the “Defendant Officers”) (collectively,
‘Defendants”). She asserts federal constitutional claims pursuant to 42 U.S.C. § 1983 and related
claims under New York state law arising from her arrest following ia protest held in Manhattan on
May 7, 2024.
Plaintiff alleges that the Defendant Officers violated her rights under the Fourth and
Fourteenth Amendments by arresting her without probable cause and retaliated against her for
engiging in protected speech and expressive activity, in violation of the First Amendment.
Plaintiff also asserts a New York common-law false arrest claim agauinst the City of New York and
the Defendant Officers, as well as a claim against the City alleging negligent hiring, training, and
supervision.
Defendant Officers Ashley Maharaj, Qasim Mushtaq, and Neil Zuber move for summary
judgment dismissing Plaintiff's federal constitutional claims on the ground of qualified immunity.
Defendants also move to dismiss Plaintiff's state-law claims for failure to state a claim.
For the reasons set forth below, Defendants’ motion for summary judgment on the ground
of qualified immunity is DENIED. Defendants’ motion to dismiss is DENIED as to Plaintiffs
New York common-law false arrest claim and GRANTED as to Plaintiff's negiigent hiring,
retention, training, and supervision claim against the City. This case will proceed to full discovery.
I. BACKGROUND
The Court is asked to resolve a motion for summary judgrnent dismissing Plaintiffs federal
constitutional claims on the ground of qualified immunity. This is not a pre-answer motion, which
is the procedural posture this Court prefers for resolving qualified immunity questions. See
Individual Rules, at V.F.4.! Defendants have filed an answer. However, only Plaintiff has been
deposed; there has been no other party discovery beyond Plaintiffs deposition and the production
of the body-worn camera footage.
At this juncture, the motion for qualified immunity is governed by this Court’s Individual
Rules governing qualified immunity motions. Individual Rules, at V.F.4. Accordingly, the Court
considers the well-pleaded allegations of the complaint, as supplemented by Plaintiff's deposition
testimony. The Court does not credit Defendants’ assertions to the extent they conflict with
' A defendant’s entitlement to qualified immunity presents a question of law for the Court; however, where the facts
material to that determination are disputed, those factual disputes must be resolved by a jury. Kerman v. City of New
York, 374 F.3d 93, 119 (2d Cir. 2004).
Plaintiff's account, except insofar as they are corroborated by undisputed record evidence
(including video).
The parties dispute whether the Court may consider the body-worn camera footage of the
incident. Plaintiff contends that the footage may not be considered; Defendants contend that it
may. The Court agrees with Defendants. On a motion for summary judgment asserting qualified
immunity, video evidence may properly be considered, even where testimonial evidence from
defendants is not.
The Supreme Court has repeatedly relied on video evidence in resolving qualified-
immunity motions and has held that such evidence can be dispositive where it “blatantly
contradict[s]” a party’s version of events. Scott v. Harris, 550 U.S. 372, 380 (2007). It would
therefore be inappropriate to refuse to consider the body-worn camera footage in connection with
Defendants’ qualified-immunity motion. As discussed below, however, the video evidence in this
case does not support Defendants’ contention that they are entitled to qualified immunity as a
matter of law. See Scott, 550 U.S. at 380.
Plaintiff argues that Defendants’ reliance on the video footage is improper. See Dkt. No.
25, Pl.’s Mem. L. Opp’n Defs.’ Mot. Summ. J. & Mot. Dismiss, at 20 n.4 (citing Friedl v. City of
New York, 210 F.3d 79 (2d Cir. 2000)). Plaintiff's reliance on Friedl is misplaced. Friedl
addresses the materials a court could consider on a pre-answer motion to dismiss under Rule
12(b)(6). It has no application to a post-answer motion for summary judgment asserting qualified
immunity.
That said, it would not be appropriate to consider the video footage when resolving
Defendants’ motion to dismiss Plaintiff's state-law claims under Rule 12(b)(6). On such a motion,
the Court is limited to the four corners of the complaint and any documents “integral to” or “relied
upon” in drafting it. ATSJ Commce’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007);
Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002). Plaintiff did not rely on the
body-worn camera footage in drafting her complaint; rather, Defendants rely on it in crafting their
defense. The Court will not consider the video footage in connection with Defendants’ Rule
12(b)(6) motion.
a. The Protest and Officers’ Arrival
The following facts are drawn from the complaint, from Plaintiff's deposition testimony,
and the body-worn camera footage. To the extent the parties’ Rule 56.1 statements are consistent
with those sources, they are cited. Where facts are disputed by the parties, the Court notes the
nature of the dispute and, for purposes of Defendants’ summary-judgment motion, construes
genuinely disputed facts in Plaintiff's favor. Naumovski v. Norris, 934 F.3d 200, 210 (2d Cir.
2019).
A protest was organized by individuals affiliated with Columbia University Apartheid
Divest “(CUAD”), a student group advocating for Columbia University’s divestment from Israel.
The protest was scheduled to occur during the morning hours near East 72nd Street and Park
Avenue, in front of the residence of a Barnard College trustee.
Plaintiff Maryellen Novak agreed in advance to attend the protest in a volunteer capacity
to assist with safety and de-escalation as a safety marshal. Plaintiff testified that, in her
understanding, a safety marshal’s role is to help ensure the safety of protest participants, fellow
marshals, and members of the public. Dkt. No. 19-1, Novak Dep. Tr. 20:7-11. Although the
claims in this action arise from events that occurred after the protest concluded, the Court briefly
describes the protest itself for context.
On the morning of May 7, 2024, Plaintiff, several other volunteer safety marshals, and
approximately 15 to 20 protesters met in Central Park at approximately 8:00 a.m. for a de-
escalation training. After the training, at approximately 8:30 a.m., the group walked to the protest
location near East 72nd Street and Park Avenue. The protest began at approximately 9:00 a.m.
Plaintiff testified that the protest took the form of a “walking picket,” a common form of protest
in which participants move in a circular motion in an area where they do not interfere with
pedestrians. Dkt. No. 18, § 8; Dkt. No. 22, 98; Dkt. No. 19-1, Novak Dep. Tr. 21:22—22:3; 32:17-
20. Plaintiff wore an identifiable yellow, crossing-guard-style vest.
Officers Ashley Maharaj and Qasim Mushtaq arrived at the scene at approximately
9:15am. Dkt. No. 18, 9 6; Dkt. No. 22, § 6; Dkt. No. 19-1, Novak Dep. Tr. 38:1-15. Plaintiff
introduced herself to Officers Maharaj and Mushtaq and explained that she was serving as a safety
marshal and police liaison for the protest. Dkt. No. 19-1, Novak Dep. Tr. 38:18-39:17. The
walking picket lasted approximately forty-five minutes and ended at around 9:45 a.m.
The events giving rise to Plaintiff's claims occurred as the protest concluded and the group
began to leave the area.
b. The End of the Protest and the Group’s Departure
After the protest ended, the group began walking west on East 72nd Street toward Park
Avenue. Dkt. No. 1, Compl. § 41. They were on the south side of the street.
When the group had a walk signal at the intersection of East 72nd Street and Park Avenue,
the picketers began crossing Park Avenue. They were walking within the crosswalk. Plaintii
followed the group as it crossed Park Avenue; Officers Mushtaq and Maharaj followed as well.
As the group reached the first median and began crossiig ‘the next segment of Park Avenue,
an SUV turned into the crosswalk and began heading toward them. J/d., {| 43-44. Despite the
presence of pedestrians lawfully crossing with the walk signal, the driver continued driving into
the crowd. Id., {| 44-455.
According to the complaint, as the vehicle drove into the group, Plaintiff extended her
hands in front of her in a gesture to stop the car from running over the protesters. /d., The
SUV continued moving forward, striking Plaintiff's outstretched arms and then her body. /d,
447. Plaintiff was carried briefly on the hood of the vehicle before being thrown off when the
driver abruptly stopped. Jd.
At her deposition — taken pursuant to this Court’s Individual Rules governing qualified-
immunity motions — Plaintiff testified, consistent with her complaint, that the group entered the
crosswalk with the walk signal and that the vehicle continued moving into the crosswalk while
pedestrians were present. She further testified that she moved toward the vehicle only after she
“heard high-pitched screams and believed that [the driver] ran over someone on the other side,”
and that she was attempting to prevent the vehicle from striking additional pedestrians. Dkt. No.
19-1, Novak Dep. Tr. at 58:1-12. The vehicle instead struck Plaintiff, causing her to fall
backwards onto the street. /d.; see also Dkt. No. 19-2, 00:46—00:52.
Defendants predictably dispute Plaintiff's version of events. According to Defendants’
Rule 56.1 statement, Plaintiff, whom Defendants assert was standing on the median, ran into the
vehicle’s path, stood directly in front of it with her arms outstretched, and struck the hood with her
hands multiple times, thereby blocking the vehicle’s path forward. Dkt. No. 18, Defs.’ Rule 56.1
Statement, { 20. Defendants further assert that any contact between the vehicle and Plaintiff
occurred only after Plaintiff intentionally positioned herself in front of the vehicle. See id., □□□
21. Because this motion is governed by the Court’s Individual Rules, the Court does not credit
Defendants’ conflicting version of events unless it is established by undisputed video evidence;
the dispute is therefore noted but not dispositive at this stage.
The parties do not dispute that the vehicle entered the crosswalk, that it made contact with
Plaintiff, and that Plaintiff fell backwards onto the street as a result. Dkt. No. 19-1, Novak Dep.
Tr., at 63:4-13. There is no claim that Plaintiff caused any damage to the vehicle. Dkt. No. 26,
Defs.’ Resp. Pl.’s 56.1 Statement, J 47.
c. Plaintiff’s Arrest and Detention
After Plaintiff was struck by the SUV, Defendant Mushtaq approached her and asked
whether she needed medical attention. Plaintiff responded that she did. Dkt. No. 1, Compl., J 60.
Minutes later, Plaintiff explained to Defendant Mushtaq that she and the protesters had the
walk signal when they were crossing Park Avenue. /d., § 61. Defendant Mushtaq responded that
she should not worry about that because he had seen “the entire thing.” Jd.
When EMTs arrived shortly thereafter, Defendant Maharaj told them that Plaintiff was
“trying to stop that car from hitting [the protesters]” when she was struck. /d., § 62. Defendant
Mushtaq explained to an EMT that Plaintiff had been “ran over by a car” while she “was just
walking.” Jd., J 63.
Plaintiff was led into an ambulance for medical treatment. /d., § 64. Inside the ambulance,
Defendant Maharaj, Defendant Mushtaq, and Defendant Doe #1 approached Plaintiff. Jd An
EMT asked whether Plaintiffs vitals could be taken before she was handcuffed, but the officers
refused. /d., 65. Defendant Maharaj then handcuffed Plaintiff. Jd, 966. Plaintiff asked, “Can
Iask why? What charge?” Dkt. No. 24-1, 72:6-7; Dkt. No. 19-2, 10:30-33. Officer Mushtaq did
not respond. See Dkt. No. 19-2, 10:33-12:38.
After she was transported to a hospital, Plaintiff again asked Officer Maharaj to explain
the charges against her. Dkt. No. 24-1, Novak Dep. Tr., 82:2. Officer Maharaj again stated that
she did not know why Plaintiff had been arrested. Dkt. No. 1, Compl. § 75. Officer Maharaj
remarked that the case would likely be “DP’d.” Dkt. No. 24-1, Novak Dep. Tr. 82:8-16.
Later that evening, Officer Mushtaq informed Plaintiff that the Manhattan District
Attorney’s Office had declined to prosecute her. Dkt. No. 1, Compl., § 84; Dkt. No. 24-1, Novak
Dep. Tr., 98:1-3. Plaintiff was then released, having never been issued a summons or desk
appearance ticket and never having been informed of the basis for her arrest. Id., {| 84, 92.
Il. LEGAL STANDARDS
a. Rule 12(b)(6) Standard
To survive dismissal, a complaint must plead sufficient facts “to state a claim to relief that
is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible
“when the plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citation omitted). Whether a complaint states a plausible claim 1s a “context-specific task
that requires the reviewing court to draw on its judicial experience and common sense.” Jd. at 679
(citation omitted).
Two “working principles” guide this inquiry. /d. at 678. First, “the tenet that a court must
accept as true all of the allegations contaitied in a complaint is inapplicable to legal conclusions.”
Id. Accordingly, “threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Jd. Second, only a complaint that states a plausible claim
for relief survives a motion to dismiss. /d. at 479. The plausibility standard “is not akin to a
‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted
unlawfully.” Jd. at 678.
Thus, when reviewing a motion to dismiss, the Court may begin by identifying allegations
that are no more than Izgal conclusions and therefore “not entitled to the assumption of truth.” Jd.
at 679. Where a complaint contains well-pleaded factual allegations, the Court assumes their
veracity and then determines whether they plausibly give rise to an entitlement to relief. Jd. Ifthe
well-pleaded facts do not permit the Court to infer more than the mere possibility of misconduct,
the complaint has alleged — but has not shown — that the pleader is entitled to relief. Jd; Fed. R.
Civ. P. 8(a)(2).
b. Summary Judgment
Summary judgment is appropriate where “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). A fact is
material if it “might affect the outcome of the suit under the governing law,” and a dispute is
genuine if “the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson vy. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In evaluating a motion for summary judgment, the Court must “resolve all ambiguities and
draw all permissible factual inferences in favor of the party against whom summary judgment is
sought.” Choi v. Tower Rsch. Cap. LLC, 2 F.4th 10, 16 (2d Cir. 2021). That obligation, however,
applies only where there is a genuine dispute of material fact. “The mere existence of some alleged
factual dispute between the parties will not defeat an otherwise properly supported motion for
summary judgment.” Anderson, 477 U.S. at 247-48.
Accordingly, the nonmoving party “must do more than simply show that there is some
metaphysical doubt as to the material facts”; rather, it must come forward with specific evidence
showing a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 586-87 (1986). Where the record taken as a whole “could not lead a rational trier of fact to
find for the nonmoving party,” summary judgment is appropriate. Jd. at 587.
However, because qualified immunity is intended to protect government officials not only
from liability but from the burdens of litigation, including discovery, such motions are often made
early and on an incomplete record. In this Court, they are therefore governed by the special
procedures set forth in the Individual Rules, which require the Court to credit the plaintiff's version
of disputed facts unless contradicted by undisputed record evidence. Those rules are discussed
below.
Il. DISCUSSION
a. Defendants’ Motion for Summary Judgment Dismissing the Federal Claims
on the Ground of Qualified Immunity Is Denied in its Entirety
Defendants move for summary judgment on Plaintiff's Fourth Amendment false arrest
claim on the ground that they are entitled to qualified immunity. Their argument does not turn on
uncertainty about what the law requires, but on competing accounts of the facts surrounding
Plaintiff's arrest. Proceeding on Plaintiff's version of events, as the Court must at this stage,
Defendants are not entitled to qualified immunity.
Qualified immunity “gives government officials breathing room to make reasonable but
mistaken judgments about open legal questions,” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011),
and seeks to preserve a balance between the “vindication of citizens’ constitutional rights
and ... public officials’ effective performance of their duties,” Ziglar v. Abbasi, 137 S. Ct. 1843,
1867 (2017) (internal quotation marks and citation omitted). Qualified immunity, however, is
limited: it only shields government officials whose “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).
Under the framework articulated in Saucier v. Katz, 533 U.S. 194, 201 (2001), courts
evaluating a claim of qualified immunity consider two questions: (1) whether, taken in the light
most favorable to the plaintiff, the facts alleged or shown make out a violation of a constitutional
nght, and (2) if so, whether the right was clearly established at the time of the challeage:d conduct.
Thius, the operative inquiry is “whether it would be clear to a reasonable officer that his conduct
10
was unlawful in the situation he confronted.” Hernandez v. Mesa, 582 U.S. 548, 554 (2017)
(quoting Saucier v. Katz, 533 U.S. 194, 202 (2001)). This inquiry presupposes a settled version
of the facts against which the law is applied.
In Pearson v. Callahan, 555 U.S. 223, 236 (2009), the Supreme Court did not abandon this
two-pronged framework; it rejected only Saucier’s requirement that courts address those prongs
in a rigid, mandatory order. After Pearson, courts retain discretion to decide which prong to
address first, depending on the circumstances of the case. Jd. at 242. But Pearson reaffirmed that
both prongs remain part of the qualified immunity analysis, and it does not authorize courts to
resolve qualified immunity by crediting a defendant’s version of disputed facts or by collapsing
the inquiry into a merits determination. See id. at 232.
The Second Circuit has repeatedly held that “summary judgment on qualified immunity
grounds is not appropriate when there are facts in dispute that are material to a determination of
reasonableness.” Thomas vy. Roach, 165 F.3d 137, 143 (2d Cir. 1999). When the existence of
arguable probable cause depends on which version of events is credited, the dispute is purely
factual, not legal. See Murphy vy. Lynn, 118 F.3d 938, 947 (2d Cir. 1997). In that circumstance,
the Court may not resolve the dispute by choosing between competing narratives or take the issue
away from the jury.
This Court’s Individual Rules governing qualified-immunity practice reflect those
principles. The Individual Rules explicitly caution that qualified immunity should not be invoked
when the argument is, in substance, that the officer is entitled to judgment “because he did nothing
wrong.” Individual Rules, at V.F.4. Qualified immunity “shields a municipal officer from
liability, not because s/he did nothing wrong, but because s/he could not possibly have known that
what s/he was doing was wrong, due to the unsettled state of the law relating to those facts.” Jd.
1]
Thus, where a defendant’s motion depends on accepting the officer’s version of contested events
— rather than on uncertainty in the law — the argument sounds in the merits, not in qualified
immunity.
The Second Circuit has drawn the same line. In Stephenson v. Doe, 332 F.3d 68, 76, 78—
79 (2d Cir. 2003), the court explained that qualified immunity is “more than a simple defense—it
is an entitlement not to stand trial or face the burdens of litigation,” but it protects only reasonable
mistakes “as to what the law requires.” But when material factual disputes bear on arguable
probable cause, summary judgment on qualified immunity grounds is inappropriate. Jd. at 77; see
also Saucier, 533 U.S. at 216 (Ginsburg, J., concurring) (stating that summary judgrnent not
permitted where the case “turns on which of two conflicting stories best captures what happened
on the street’).
That is precisely the situation presented here.
i. Plaintiff's Fourth Amendment False Arrest Claim
Defendants first move for summary judgment dismissing Plaintiff's false arrest claim under
the Fourth Amendment solely on the ground that they are entitled to qualified immunity because
they purportedly had “arguable probable cause” to arrest her. The Court therefore does not decide
whether Defendants in fact had probable caise on the merits. The only question presented is
whether, crediting Plaintiff's version of events, any reasonable officer could have believed that
probable cause existed. On this record, no reasonable officer could have done so, and Defendants
are therefore not entitled to qualified immunity.
The Fourth Amendment, applicable to the States via the Due Process Clause of the
Fourteenth Amendment, provides: “The right of the people to be secure in their persons . . . aggtinst
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon
probable cause[.]” Consistent with this constitutional guarantee, it has long been clearly
12
established that the Fourth Amendment prohibits arrests unsupported by probable cause. See
Golino v. City of New Haven, 950 F.2d 864, 871 (2d Cir. 1991); United States v. Valentine, 539
F.3d 88, 93 (2d Cir. 2008). An officer has probable cause to arrest when the facts and
circumstances known to the officer at the time of the arrest would lead a person of reasonable
caution to believe that the arrestee has committed an offense. Singer v. Fulton Cnty. Sheriff, 63
F.3d 110, 118 (2d Cir. 1995).
Where, as here, Defendants invoke qualified immunity, however, the relevant inquiry is
not whether probable cause actually existed, but whether the officers had arguable probable cause
to arrest Plaintiff. See Jenkins v. City of New York, 478 F.3d 76, 87 (2d Cir. 2007). In the context
of a Fourth Amendment false arrest claim, the Second Circuit has made clear that the qualified-
immunity analysis is conducted through the doctrine of “arguable probable cause.” See Zellner v.
Summerlin, 494 F.3d 344, 369 (2d Cir. 2007); Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004).
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.” Zellner, 494 F.3d at 369 (citation omitted); Zalaski v. City of
Hartford, 723 F.3d 382, 390 (2d Cir. 2013). But, “If officers of reasonable competence would
have to agree that the information possessed by the officer at the time of arrest did not add up to
probable cause, the fact that it came close does not immunize the officer.” Jenkins, 478 F.3d at
87.
This qualified-immunity inquiry proceeds on Plaintiff's version of events, as pleaded in the
complaint and supplemented by her deposition testimony. Defendants are not entitled at this stage
to advance their own competing narrative. See Individual Rules, at V.F.4.
13
On Plaintiff's version of the facts, Defendants lacked even arguable probable cause to
arrest her. Plaintiff alleges that, at the moment of arrest, the officers themselves were unable to
articulate any basis for the arrest and described Plaintiff's conduct to third parties in non-criminal
terms. While she was being handcuffed inside the ambulance, Plaintiff asked why she was being
arrested, and “Defendant Mushtaq replied that they would tell her later, seemingly unable to
articulate the grounds for her arrest.” Dkt. No. 1, Compl., § 69. Plaintiff further alleges that she
was “never informed of the charges or the reason for her arrest,” either at the scene or during her
many hours in custody. /d., § 92.
Plaintiff further alleges that, immediately after the incident, Defendants affirmatively
characterized Plaintiff as a pedestrian victim rather than a perpetrator of any offense. Defendant
Maharaj told emergency medical personnel that Plaintiff was “trying to stop that car from hitting
[the protesters]” when she was struck, id., 4 62, and Defendant Mushtaq explained to an EMT that
Plaintiff had been “ran over by a car” while she “was just walking,” id., § 63. Later, at the hospital,
Defendant Maharaj again stated that she had seen the car drive into Plaintiff and “did not know
why Ms. Novak was arrested.” Jd., 75.
If officers acknowledge that they do not know the basis for an arrest — or describe the
arrestee to third parties as a pedestrian victim — no reasonable officer could believe, mistakenly or
otherwise, that probable cause existed. Qualified immunity protects reasonable mistakes of law
or fact; it does not shield arrests where, on Plaintiff's account, the officers could not identify any
facts supporting a reasonable belief that she had committed an offense. See Saucier, 533 U.S. at
206. On Plaintiff's version of events, Defendants did not make a reasonable but mistaken
judgment about whether Plaintiff's conduct satisfied the elements of a crime; they arrested her
without identifying any offense she was believed to have committed.
14
That alone is sufficient to deny Defendants’ motion for dismissal on the ground of qualified
immunity at this stage.
Even if the Court were to assume arguendo that Defendants had some offense in mind, and
considers the statute they now invoke — disorderly conduct under New York Penal Law § 240.20(5)
— the result would be the same. Section 240.20(5) provides that a person is guilty of disorderly
conduct when, “with intent to cause public inconvenience, annoyance or alarm, or recklessly
creating a risk thereof,” she “obstructs vehicular or pedestrian traffic.” New York courts have long
construed this provision narrowly, particularly in the context of protests and pedestrian activity.
To establish probable cause under § 240.20(5), the obstruction must be “actual and immediate,”
not merely a temporary inconvenience or momentary delay. See Zellner v. Summerlin, 494 F.3d
344, 371-73 (2d Cir. 2007); Jones v. Parmley, 465 F.3d 46, 59 (2d Cir. 2006). Lawful presence
in a roadway or crosswalk — standing alone — does not suffice.
Equally important, § 240.20(5) requires a culpable mental state: intent to cause public
inconvenience, annoyance, or alarm, or reckless creation of such a risk. See People v. Tichenor,
89 N.Y.2d 769, 775 (1997). Courts therefore reject disorderly-conduct liability where a
defendant’s conduct is consistent with lawful activity or with a legitimate, non-obstructive
purpose. See e.g., People v. Barrett, 821 N.Y.S.2d 416, 429-31 (Crim. Ct. N.Y. Cnty. 2006).
On Plaintiffs version of the facts, she entered the crosswalk with the walk signal, observed
a vehicle turning into pedestrians who had the right of way, heard screaming suggesting imminent
danger, and moved toward the vehicle in an effort to prevent harm. See Dkt. No. 1, Compl. {J 55—
61; Dkt. No. 19-1, Novak Dep. Tr. 58:1—-12. That account — accepted as true at this stage —
describes lawful pedestrian conduct and a response to a perceived emergency, not intentional or
reckless obstruction of traffic.
15
Nor does the body-worn camera footage “blatantly contradict” Plaintiff's account. See
Scott, 550 U.S. at 380. At most, the footage is ambiguous about timing and intent, and it does not
establish that Plaintiff was “actually and immediately blocking” vehicular traffic within the
meaning of § 240.20(5). Where video evidence is inconclusive and competing inferences may
reasonably be drawn, the Court may not credit officers’ characterizations over Plaintiffs version
of events on a qualified immunity motion. See Zel/ner, 494 F.3d at 369-73.
Thus, even considering § 240.20(5), Defendants cannot establish arguable probable cause
as a matter of law. The Court need not reach the outer boundaries of that statute to resolve the
qualified-immunity question here. On Plaintiff's version of the facts — supported by her testimony
and the statements attributed to the officers — no officer of reasonable competence could have
believed that probable cause existed — especially given the Defendants’ contemporaneous
description of what occurred and the fact that they could not articulate at the time of the arrest any
basis for concluding that a crime had been committed. Accordingly, Defendants are not entitled
to qualified immunity on Plaintiff's Fourth Amendment false arrest claim.
Defendants briefly suggest an alternative basis for arguable probable cause, contending in
a footnote that Plaintiff could have been arrested for criminal mischief in the fourth degree under
New York Penal Law § 145.00. See Dkt. No. 20, at 18 n.3. That argument fares no better.
Section 145.00 requires intentional or reckless damage to property without right or
justification. Plaintiff alleges — and for present purpose’s the Court must accept — {hat any contact
she made with the vehicle occurred in an effort to prevent imminent harm to pedestrians lawfully
in the crosswalk. See Dkt. No. 1. Compl., §§§ 58-63. New York law expressly provides that
conduct otherwise constituting a criminal offense is “justifiable and not criminal” when it is
“necessary as an emergency measure to avoid an imminent public or private injury.” N.Y. Penal
16
Law § 35.05(2). Whether Plaintiff's actions were necessary to avert imminent harm turns on
disputed questions of perception, timing, and intent that cannot be resolved in Defendants’ favor
at this stage. Critically, Defendants again point to no contemporaneous statement or observation
suggesting that they believed Plaintiff had damaged property or acted with the mens rea required
by § 145.00.
Indeed, Plaintiff alleges that, even after the incident, officers described her conduct to
emergency medical personnel not as criminal, but as that of a pedestrian who had been struck while
walking.” Dkt. No. 1, Compl. § 63. Defendants themselves do not contend that Plaintiff
caused any damage to the vehicle. Their Rule 56.1 counterstatement expressly acknowledges that
they are “not aware of damage caused to the [driver’s] vehicle by plaintiff banging on the front
hood of the vehicle.” Dkt. No. 26 § 47. That admission further underscores the absence of any
articulable basis for believing that she had violated § 145.00. On Plaintiff's version of events,
Defendants lacked any articulable basis — mistaken or otherwise — to believe that § 145.00 had
been violated.
In sum, accepting Plaintiff's version of events as true, this is not a case in which officers
made a reasonable but mistaken judgment in a fast-moving situation about whether specific
conduct satisfied the elements of a particular offense. On Plaintiff's version of the facts,
Defendants arrested her without knowing why they were doing so and after describing her conduct
to third parties in completely non-criminal terms. No reasonable officer could view such an arrest
as supported by arguable cause. Qualified immunity does not extend that far.
Because Defendants have failed to establish arguable probable cause as a matter of law,
the Defendant Officers are not entitled to qualified immunity on Plaintiff's Fourth Amendment
false arrest claim. Defendants’ motion for summary judgment on this claim is therefore denied.
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ii. Plaintiff’s First Amendment Retaliation Claim
Defendants also move for summary judgment on Plaintiff's First Amendment retaliation
claim solely on the ground that the individual officers are entitled to qualified immunity. They do
not move for summary judgment on the merits of the retaliation claim itself. Accordingly, the
Court does not decide whether Plaintiff has established retaliatory arrest on the merits. The only
question presented is whether, accepting Plaintiff's version of events as true, Defendants have
shown that they are entitled to qualified immunity as a matter of law. They have not.
It is clearly established that the First Amendment prohibits government officials from
arresting an individual in retaliation for protected speech. Curley v. Vill. of Suffern, 268 F.3d 65,
73 (2d Cir. 2001). Where the alleged retaliatory action is an arrest, the Supreme Court has held
that the existence of probable cause will generally defeat such aclaim. Nieves v. Bartlett, 587 U.S.
391, 405 (2019). That principle rests on causation, not immunity doctrine. As the Court explained,
“probable cause speaks to the objective reasonableness of an arrest,” and its presence “will
suggest” that the arrest would have occurred regardless of any retaliatory animus. Jd. at 402, 404—
05.
The general rule that the existence of probable cause defeats a First Amendment retaliatory-
arrest claim has no application here. As discussed at length in connection with Plaintiff's Fourth
Amendment claim, see supra Section III(a)(i), Defendants have not established arguable probable
cause on Plaintiff's version of events. That conclusion rests in part on the complaint’s allzgaitions
that officers contemporaneously described Plaintiff as a pedestrian victim, could not articulate any
basis for her arrest, and later acknowledged that they did not know why she had been arrested. See
Dkt. No. 1, Compl. ff 62-63, 69, 75, 92.
Because erguable probable cause is absent on Plaintiff's version of events, the inference
on which Nieves relies — that the arrest would have occurred anyway absent protected speech —~ is
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unavailable at this stage. The same disputed facts that defeat qualified immunity on Plaintiffs
Fourth Amendment false arrest claim foreclose qualified immunity on Plaintiffs First Amendment
retaliation claim. See Lore v. City of Syracuse, 670 F.3d 127, 162 (2d Cir. 2012).
Defendants nevertheless invoke Nieves as a categorical bar to Plaintiff's claim. Dkt. No.
20, at 19-20. That argument misunderstands both the function of the probable-cause rule and the
reason the Supreme Court crafted a narrow exception to it.
In Nieves, the Supreme Court adopted the probable cause rule to address a recurring
“problem of causation” in retaliatory-arrest cases — namely, the difficulty of determining whether
an arrest was caused by an officer’s hostility toward protected speech or by the arrestee’s
potentially criminal conduct. Nieves, 587 U.S. at 402. Where probable cause is present, it “will
suggest” that the arrest would have occurred regardless of any retaliatory motive; where probable
cause is absent, that inference cannot be drawn. /d. But here, Defendants have not established
that they had probable cause to arrest, as they did in Nieves. They have not even established that
they had arguable probable cause to arrest. For that reason, Nieves does not provide a basis for
qualified immunity.
At the same time, the Supreme Court has recognized that an unyielding application of the
probable-cause rule would pose particular dangers in protest-policing contexts. The Court
explained that in many such settings — especially those involving iminor or rarely enforced offenses
— officers routinely exercise discretion not to arrest. /d. at 406-07. In that circumstance, a rigid
probable-cause bar would permit officers to arrest a speaker they dislike while leaving others
untouched, and then justify the arrest by pointing to a technical violation that ordinarily goes
unenforced. /d. To guard against that risk, the Court crafted a narrow exception.
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The narrow exception recognized in Nieves applies only where probable cause is
established and would otherwise categorically bar a retaliatory-arrest claim. Jd. at 406-07. In that
circumstance — and only in that circumstance — the exception permits a plaintiff to proceed by
pointing to objective evidence of selective enforcement, such as evidence that similarly situated
individuals not engaged in protected speech were not arrested. Jd. The exception does not operate
as an affirmative defense, and it does not confer immunity on officers where probable cause has
not been established.
Because Defendants have not shown that probable cause, or even arguable probable cause,
exists as a matter of law, the Court need not — and does not — reach the narrow exception recognized
under Nieves. That exception becomes relevant only if arguable probable cause is otherwise
established and would bar a retaliatory arrest claim in the first instance. Here, Defendants have
not made the necessary threshold showing.
For completeness — and to make clear the nature of the protected activity at issue — the
Court briefly summarizes Plaintiffs theory of retaliation as alleged. Plaintiffs theory of
retaliation rests on her engagement in speech critical of police conduct immediately preceding her
arrest. Plaintiff alleges that, after another volunteer safety marshal wearing a neon vest was
arrested, she asked Defendant Zuber where officers were taking that marshal, persisted after being
told it was “‘none of [her] business,” and then requested Defendant Zuber’s badge number while
asking nearby protesters to record it. Dkt. No. 1, Compl. 55-58. Plaintiff further alleges that,
as protesters filmed the arrest, Defendant Zuber called them “fucking imorons” and threatened mass
arrest, stating that he “had enough handcuffs for everyone.” Jd. 454. According to the complaint,
Plaintiff and the other volunteer safety marshal wearing a bright vest were the only protesters
arrested. Id. J 72.
20
Conduct of the sort Plaintiff alleges — verbal challenges to police authority, requests for
identifying information, and efforts to facilitate public recording of police activity — falls squarely
within the core of protected First Amendment activity. See City of Houston v. Hill, 482 U.S. 451,
461-63 (1987) (“The freedom of individuals verbally to oppose or challenge police action without
thereby risking arrest is one of the principal characteristics by which we distinguish a free nation
from a police state.”). Such activity directly implicates the First Amendment’s central concern
with public oversight of governmental power — particularly where, as alleged here, the speech
concems the conduct of law enforcement officers engaged in crowd control at a public protest.
See Gentile v. State Bar of Nevada, 501 U.S. 1030, 1034-35 (1991).
Whether Plaintiff can ultimately establish retaliatory motive or selective enforcement is a
merits determination the Court does not reach on Defendants’ qualified-immunity motion. At this
stage, because Defendants have not established arguable probable cause, and because the conduct
alleged is protected speech, Defendants are not entitled to qualified immunity. Nieves provides no
basis for qualified immunity at this stage. Defendants’ motion for summary Judgment on
Plaintiffs First Amendment retaliation claim is denied.
b. Plaintiff’s Claims Under New York Law
i. False Arrest
Defendants move to dismiss Plaintiff's New York common-law false arrest claim under
Rule 12(b)(6). The Court therefore accepts Plaintiffs well-pleaded allegations as true and draws
all reasonable inferences in Plaintiff's favor.
A § 1983 claim for false arrest, based on the Fourth Amendment right of an individual to
ye free from unreasonable seizures “is substantially the same as a claim for false arrest under New
York law.” Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) (citations omitted). Plaintiff asserts
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a New York common law false arrest claim against the individual Defendant Officers based on the
same arrest that underlies her federal Fourth Amendment claim.
Under New York law, to prevail on a false arrest claim, a plaintiff must show that “(1) the
defendant intended to confine him, (2) the plaintiff was conscious of the confinement, (3) the
plaintiff did not consent to the confinement and (4) the confinement was not otherwise privileged.”
Jocks v. Tavernier, 316 F.3d 128, 134-35 (2d Cir. 2003) (internal quotation marks omitted);
Broughton v. State, 37 N.Y.2d 451, 456-58 (1975).
Defendants do not dispute that the first three elements are satisfied. See Dkt. No. 20, Defs.’
Mem. L. Supp. Mot. to Dismiss, at 21-22. The sole issue, therefore, is whether Plaintiff's
confinement was “otherwise privileged,” which turns on whether Defendants had probable cause
to arrest her. Broughton, 37 N.Y.2d at 456.
For the reasons already discussed in detail in the qualified-immunity analysis, see supra
Section II(a)(i), Plaintiff has plausibly alleged that no probable cause existed for her arrest. The
Court therefore does not repeat that analysis here. Accepting Plaintiff's allegations as true, officers
arrested her while she was receiving medical treatment after being struck by a vehicle, were unable
to articulate any basis for the arrest, described her to third parties as a pedestrian victim, and later
acknowledged that they did not know why she had been arrested. See Dkt. No. 1, Compl. J 62—
63, 69, 75, 92.
At the pleading stage, those allegations more than suffice to state a claim that Plaintiffs
confinement was not privileged under New York law. See Jocks, 316 F.3d at 135. Accordingly,
Defendants’ motion to dismiss Plaintiff's New York common-law false arrest claim is denied.
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ii. Negligent Hiring, Retention, Training, and Supervision
Plaintiff also asserts a claim under New York law against the City for negligent hiring,
retention, training, and supervision of the individual Defendant Officers.* This claim fails as a
matter of law.
To state a claim for negligent hiring, retention, training, or supervision under New York
law, a plaintiff must plead, in addition to the elements of negligence, that: “(1) the tort-feasor and
the defendant were in an employee-employer relationship; (2) the employer knew or should have
known of the employee’s propensity for the conduct which caused the injury prior to the injury’s
occurrence; and (3) the tort was committed on the employer’s premises or with the employer’s
chattels.” Ehrens v. Lutheran Church, 385 F.3d 232, 235 (2d Cir. 2004) (citation modified). In
addition, “a claim for negligent hiring or supervision can only proceed against an employer for an
employee acting outside the scope of his or her employment.” Velez v. City of New York, 730 F.3d
128, 136-37 (2d Cir. 2013).
Plaintiffs negligent hiring, retention, training, and supervision claim fails for two
independent reasons: (1) Plaintiff's own allegations demonstrate that the individual Defendants
were acting within the scope of their employment at all relevant times; and (2) Plaintiff fails to
plausibly allege that the City knew or should have known of any Defendant’s propensity for the
conduct alleged.
First, Plaintiff's own allegations establish that the Defendant Officers were acting squarely
within the scope of their employment as NYPD officers throughout the events at issue. Plaintiff
alleges that the Individual Defendants were NYPD officers acting “under color of state law” and
2 Plaintiff does not assert a municipal-liability claim against the City under Monell v. Department of Social Services,
436 U.S. 658 (1978). Her claims against the City arise solely under New York law.
23
“within the scope of their employment by Defendant City of New York and the New York City
Police Department.” Dkt. No. 1, Compl. 13, 125.
The complaint describes a continuous sequence of core law enforcement activities
undertaken by on-duty officers in response to a public demonstration and a street-level incident,
including monitoring and supervising a protest, exercising arrest authority, applying handcuffs,
maintaining custody, controlling the scene, and coordinating with emergency medical personnel.
See id., Jf 28-31, 49, 52-54, 60-67, 73-81.
Plaintiff specifically alleges that she was placed under arrest by NYPD officers and
remained handcuffed while being transported to the hospital and while receiving medical
treatment. Jd, J§ 64-66. Plaintiff further alleges that, during this period, Defendant Officers
spoke with emergency medical personnel regarding the circumstances of the incident and
Plaintiff's arrest. Id., [] 62-63, 75.
These allegations describe paradigmatic law enforcement functions. At no point does the
complaint allege that any Defendant acted for personal reasons, pursued a private objective, or
deviated from their official roles as on-duty police officers. Because Plaintiff does not plausibly
allege that any Individual Defendant acted outside the scope of his or her employment, Plaintiff's
negligent hiring, retention, training, and supervision claim fails on that basis alone. See Velez, 730
F.3d at 136-37; Zanfardino v. City of New York, 230 F. Supp. 3d 325, 336 (S.D.N.Y. 2017).
Second, Plaintiff fails to plausibly allege that the City knew or should have known of any
officer’s propensity for the challenged conduct. The complaint contains only generalized
allegations asserting that the City negligently hired, retained, trained, and supervised the Individual
Defendants. See Dkt. No. 1, Compl. §§ 127-131. It does not plead any facts identifying prior
misconduct by any Defendant, prior civilian complaints, disciplinary findings, internal
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investigations, or any history of similar conduct. Nor does Plaintiff allege any facts suggesting
that the City had notice before the events at issue of any risk posed by any Individual Defendant.
See id.
The complaint likewise does not identify any specific training deficiency, supervisory
failure, or hiring decision that allegedly caused Plaintiff's injury. Instead, Plaintiff relies on
conclusory assertions of municipal fault untethered to factual allegations showing notice,
foreseeability, or causation. This pleading is insufficient as a matter of law. See Ndoye v. City of
New Rochelle, No. 23-CV-3805 (PMH), 2024 WL 308221, at *4—5 (S.D.N.Y. Jan. 26, 2024).
Because Plaintiff does not plausibly allege either (1) that Defendants acted outside the
scope of their employment, or (2) that the City knew or should have known of any Defendant’s
propensity for the conduct alleged, Plaintiff has failed to state a claim for negligent hiring,
retention, training, or supervision under New York law. Accordiigiy, Defendants’ motion to
dismiss this claim is granted.
Conclusion
For the foregoing reasons, Defendants’ motions are GRANTED IN PART and DENIED
IN PART.
Defendants’ motion for summary judgment seeking to dismiss Plaintiffs federal claims on
the ground of qualified immunity is DENIED in its entirety.
Defendants’ motion to dismiss Plaintiff's New York common-law false arrest claim is
DENIED, and Defendants’ motion to dismiss Plaintiff's negligent hiring, retention, training, and
supervision claim is GRANTED.
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The Clerk of Court is directed to terminate the motions pending at docket numbers 16 and
17. This constitutes the decision and order of the Court. It is a written decision.
Dated: February 2, 2026 }
U.S.D.J.
BY ECF TO ALL COUNSEL
(
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