Packard v. The City Of New York

Background

George Packard, Edward Beck, Michelle Berger, and Ari Cowan brought a putative class action under 42 U.S.C. § 1983 against the City of New York. They alleged that their First and Fourth Amendment rights were violated when they were arrested during protests marking the first anniversary of Occupy Wall Street on September 15, 16, and 17, 2012. Their theory was that the City failed to train the New York Police Department on the proper application of New York’s disorderly-conduct and obstructing-governmental-administration statutes to people engaged in peaceful sidewalk protests.

After an earlier motion to dismiss, the claims remaining against the City were false arrest, First Amendment retaliation, and municipal liability based on failure to train. The parties filed cross-motions for summary judgment. The plaintiffs also moved under Federal Rule of Civil Procedure 23(c)(4) to certify an issue class concerning whether the City’s training was inadequate and whether its alleged failure to train amounted to deliberate indifference.

Report and Recommendation and Review

The court had referred the motions to Magistrate Judge Stewart D. Aaron. Judge Aaron recommended denying both summary-judgment motions and denying the plaintiffs’ motion for issue certification. The plaintiffs filed objections. Judge Torres reviewed the challenged portions of the recommendation de novo, meaning independently, and reviewed the unchallenged portions for clear error, meaning an obvious mistake in the record.

Issue-Class Certification

The court adopted Judge Aaron’s recommendation to deny issue-class certification. The proposed class would have addressed the City’s alleged failure-to-train liability, while leaving individualized questions for later proceedings. The court concluded that those individualized questions would remain extensive, particularly whether the alleged training failure caused each plaintiff’s arrest and whether probable cause existed for each arrest.

The court explained that causation is a required part of a failure-to-train claim. A plaintiff must identify a specific training deficiency and show that it was closely connected to, and actually caused, the constitutional injury. Because the plaintiffs’ proposed plan treated causation as an individual question, certification would not meaningfully narrow the issues or promote efficient resolution of the claims. The court also rejected objections that certification would help putative class members find lawyers and that special masters could handle the individual probable-cause questions. It treated those arguments as either newly raised or repetitive of arguments already made and found no clear error in the recommendation.

The court also declined to reject a footnote in Judge Aaron’s recommendation discussing the possibility that future plaintiffs might use non-mutual offensive collateral estoppel—a legal rule that can prevent a party from relitigating an issue it previously litigated and lost against another plaintiff. The court stated that this discussion was not necessary to the class-certification recommendation and did not undermine it.

Summary Judgment

Neither party timely objected to the recommendation to deny the cross-motions for summary judgment. After reviewing that portion for clear error, the court found none and adopted the recommendation. The court therefore denied both parties’ motions for summary judgment.

Disposition

Judge Torres overruled the plaintiffs’ objections and adopted Judge Aaron’s Report and Recommendation in its entirety. The parties’ cross-motions for summary judgment were denied, and the plaintiffs’ motion to certify an issue class was denied. The court set trial on the claims for false arrest, First Amendment retaliation, and municipal liability based on failure to train for October 19, 2020.