Nigro v. City Of New York

Background

Michael Nigro, a professional photographer, journalist, and filmmaker, sued the City of New York and five New York City Police Department officers concerning his arrest during a protest against then-presidential candidate Donald J. Trump on March 19, 2016.

In an earlier opinion, the court dismissed all of Nigro’s claims except a failure-to-train claim against the City. The court had also concluded that Nigro plausibly alleged a First Amendment retaliatory-arrest claim, but dismissed that claim against the individual defendant on qualified-immunity grounds. The City’s municipal failure-to-train claim survived because qualified immunity does not protect municipalities.

Both sides sought reconsideration under Federal Rule of Civil Procedure 59(e) and Local Civil Rule 6.3. The court explained that reconsideration is narrowly limited and generally is not a way to relitigate issues, introduce new theories, or take another opportunity to make arguments that were already presented.

The City’s motion

The City asked the court to reconsider allowing the failure-to-train claim to proceed. It argued that Nigro’s theory was based only on a Fourth Amendment false-arrest claim and did not adequately allege a First Amendment retaliatory-arrest theory.

The court rejected that argument. Nigro’s complaint expressly referred to the First Amendment and alleged that the City failed to train officers on the First Amendment rights of media members, including photographers. The court also said that a complaint does not need to use the specific word “retaliation” if its allegations, read in context, plausibly support that theory.

The City also argued that the Supreme Court’s decision in Nieves v. Bartlett did not apply because Nigro was arrested under a traffic law concerning walking in a roadway rather than the traffic-law provision the City associated with “jaywalking.” The court found that distinction immaterial. It said the Supreme Court used jaywalking as an illustrative example and that the relevant question was whether violations of the law at issue rarely result in arrest. The City had not shown that violations of the roadway-walking law resulted in arrest more often than the provision discussed in Nieves. The court also said several related arguments had been forfeited because the City had not raised them earlier.

Finally, the court rejected the City’s argument that Nigro had not adequately pleaded deliberate indifference and causation. The court said those arguments repeated points already made in the motion to dismiss and rejected in the earlier decision, which was not a proper basis for reconsideration.

Nigro’s motion

Nigro asked the court to reconsider dismissal of his Section 1983 fair-trial claim. He alleged that defendants falsely failed to identify him as working press and a professional photographer, misstated the location of his arrest, and stated that an officer saw him enter the street, pass metal barricades, and block vehicle traffic.

The court clarified that the fair-trial claim had been dismissed because Nigro did not plausibly allege that the supposedly false statements were material—meaning likely to influence a jury’s decision. The court said its earlier wording had incorrectly suggested that probable cause defeated the claim. Probable cause, standing alone, is not a defense to a fair-trial claim.

The court nevertheless declined to reconsider the dismissal. Nigro’s complaint did not explain how the alleged false statements related to the charges. His opposition to the motion to dismiss had focused on charges concerning standing in the street, and his own photograph showed that he had stood in the middle of the roadway. The court stated that false evidence must be material to support a Section 1983 fair-trial claim; the alleged manufacture of false evidence alone is not enough.

Nigro also argued during reconsideration that the statements were material to the disorderly-conduct charge because that charge required a substantial blockage of traffic. The court held that he had forfeited that argument by not making it in opposition to the motion to dismiss. Reconsideration is not an appropriate vehicle for presenting a new theory.

As an independent reason, the court held that Nigro’s fair-trial claim was barred because he had received an adjournment in contemplation of dismissal, commonly called an ACD. The court agreed with decisions holding that a fair-trial claim requires favorable termination of the criminal case, and that an ACD does not satisfy that requirement when the claim challenges the evidence used to begin the criminal proceedings.

Disposition

The court denied both motions for reconsideration. The City was ordered to file its answer within two weeks, and the initial pretrial conference was reinstated for January 14, 2021. The clerk was directed to terminate the two reconsideration motions.