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Occupy Wall Street Filmmaker Wins First Round in Lawsuit Against Police, NYC

March 28, 2016

A federal judge refused to dismiss the lawsuit by an activist who was arrested while filming protests in 2011. Now the filmmaker and her legal team will have a chance to investigate the city’s training policies regarding the First Amendment and handling the media.

By Tom Isler

Marisa Holmes, a documentary filmmaker, journalist, and activist, who was arrested while filming Occupy Wall Street protests in 2011, scored a preliminary victory in court when a federal judge refused to dismiss her lawsuit against New York City and several police officers.

According to the lawsuit, Holmes was standing in a crowded street, along with police and other members of the public, filming a young protester, when police asked her to get out of the street. When Holmes refused, the police arrested her.  Although Holmes claims that the street was closed to car traffic, the police nonetheless charged her with resisting arrest, obstruction of governmental administration, and disorderly conduct.  The charges were later dropped.

Holmes sued the arresting officers for false arrest and imprisonment, malicious prosecution, and assault and battery. She also sued the city for failing to train and supervise the officers who arrested her, and for instituting policies or customs that violated her constitutional rights.  The defendants moved to dismiss the case.

U.S. District Judge Laura Taylor Swain of the Southern District of New York ruled that the lawsuit should go forward. (Judge Swain dismissed the assault and battery charges because Holmes did not claim that she suffered any physical injuries from the arrest; excessively tight handcuffs don’t count. Judge Swain also dismissed the malicious prosecution claim, because Holmes did not allege that the police unreasonably detained her after her arraignment, but allowed Holmes a chance to revise her complaint with additional facts to support her claims.)  Judge Swain ruled that, according to Holmes’s version of events, a jury could reasonably conclude that the officers lacked probable cause to arrest her.

Most importantly, Judge Swain refused to dismiss claims against the city.  Holmes alleged that the city “had an official policy precluding interference with individuals attempting to record or document police actions (an established Constitutional right under the First Amendment),” but “failed to properly train police officers to ensure that those individuals would not actually be interfered with.”  Viewing the allegations most favorably to Holmes, the court found that Holmes’s claim was plausible and she should have the opportunity to gather and present evidence to support the claim.

That’s a big deal because now Holmes and her lawyers will have the opportunity to ask the city to produce documents and information regarding NYPD media policies, training and supervision policies, and its history of arresting people who documented police activity—as part of the “discovery” process of litigation.  Holmes and her lawyers could potentially unearth valuable information about how the NYPD treats filmmakers and journalists—that is, if the city doesn’t settle the suit first.

These types of claims against municipalities, brought under the federal statute 42 U.S.C. § 1983 (called “Monell” claims, after a 1978 Supreme Court case), are difficult to litigate, because it is often hard, if not impossible, for plaintiffs to know enough details about a city’s internal policies or customs to convince a court that a failure to supervise claim isn’t merely speculative or conclusory.  Many cases fail to clear the hurdle that Holmes just passed. 

For example, just last year, another Occupy Wall Street documentarian who was arrested had a similar Monell claim dismissed by another judge sitting on the same federal court.  In that case, Douglas Higginbotham alleged that the NYPD had a policy or practice of “imped[ing] and arrest[ing] those individuals who were observed photographing, videotaping or otherwise recording the illegal and unconstitutional acts of the NYPD.”  Higginbotham claimed that 44 journalists were arrested over a period of 15 days, that Mayor Bloomberg admitted that limitations were placed on the media to prevent access to Zuccotti Park (the epicenter of the Occupy Wall Street movement), and that the NYPD commissioner later issued a memo to officers instructing them not to unreasonably interfere with journalists’ access to the news.  But the court ruled that even if those facts were true, they did not suggest that the NYPD had a policy in place to retaliate against journalists who filmed questionable police behavior.  The court dismissed his claim.

Holmes didn’t have more factual support for her claim than Higginbotham had for his, but, according to Judge Swain, she said enough for now.  Whether Holmes will uncover evidence of an illegal policy or custom at the NYPD remains to be seen.  But Holmes has a shot that not many litigants get to inspect NYPD records.

The case is Holmes v. City of New York, No. 14-cv-5253-LTS, in the U.S. District Court for the Southern District of New York.