Butler v. City Of New York

Background

Eric Butler and Jacob J. Katzburg sued the City of New York, then-Mayor Bill de Blasio, Police Commissioner Dermot Shea, and police officers under 42 U.S.C. § 1983. They alleged that their constitutional rights were violated when they were arrested during a protest at City Hall Park on May 9, 2020. The protest challenged executive orders issued in response to the COVID-19 pandemic. The plaintiffs alleged that approximately twenty people attended, that protesters attempted to remain six feet apart, and that several wore face coverings.

The arrests followed enforcement of Mayor de Blasio’s Emergency Executive Order 103, which prohibited non-essential gatherings of any size. Butler and Katzburg were taken to a police precinct, released later that day, and each received a criminal summons. Their complaint asserted First Amendment claims involving speech, assembly, and petitioning the government; a Fourteenth Amendment claim that the order was impermissibly vague; Fourth Amendment false-arrest claims; failure-to-intervene claims against unnamed officers; claims against the Mayor and Police Commissioner; and a municipal-liability claim against the City.

The defendants moved to dismiss under Federal Rules of Civil Procedure 12(b)(1), 12(b)(6), and 12(b)(7). The court granted the motion under Rule 12 and addressed the claims as described below.

Standing

The court held that the plaintiffs had standing to assert their First Amendment claims. It found that their alleged injuries were fairly traceable to the defendants because the plaintiffs alleged they were arrested for violating the mayoral order. The plaintiffs also sought damages, so the fact that the gathering restrictions had later been lifted did not prevent the court from considering their claimed constitutional injuries.

First Amendment claims

The court held that the public-health framework from Jacobson v. Massachusetts governed the plaintiffs’ First Amendment claims. Under that framework, a public-health measure survives if it has a real or substantial relationship to public health and is not a plain and palpable invasion of fundamental rights. The court concluded that the gathering ban was enacted to slow the spread of COVID-19, was supported by the understanding at the time that preventing in-person gatherings was important, and was temporary. The plaintiffs also had alternative ways to communicate, including online expression, media, and individual protests.

The court separately concluded that the plaintiffs’ claims would fail under the ordinary First Amendment standards as well. It treated the plaintiffs’ challenge as an as-applied challenge—one focused on how the order was enforced against them—because they did not pursue their facial challenge in their briefing. The court found the order content neutral and applied intermediate scrutiny, which permits reasonable, narrowly tailored limits on the time, place, or manner of expression if adequate alternative communication channels remain available. The court rejected the plaintiffs’ argument that officials selectively enforced the order based on the message of their protest. It concluded that the order was narrowly tailored to the significant interest of limiting COVID-19 transmission and that the available alternatives were adequate. The First Amendment claims therefore failed.

Vagueness claim

The court rejected the claim that the phrase “non-essential gatherings” was too vague. It concluded that the order incorporated a detailed definition of essential businesses and services and that a reasonable person would understand that a protest was not among the listed essential activities. The court also found that the order gave law-enforcement officers sufficient guidance to avoid arbitrary enforcement. The plaintiffs’ vagueness claim therefore failed.

False arrest and failure to intervene

The court held that probable cause barred the plaintiffs’ false-arrest claims. Because the protest was prohibited by the gathering order, the court concluded that officers had probable cause to arrest the plaintiffs for violating it. The failure-to-intervene claims also failed because there was no underlying false arrest or other constitutional deprivation for the unnamed officers to prevent.

Claims against the Mayor, Police Commissioner, and City

The court rejected the claims against Mayor de Blasio and Commissioner Shea because the plaintiffs had not alleged an underlying constitutional violation in which those defendants could have been personally involved. The court also rejected the City’s municipal-liability claim under Monell v. Department of Social Services, concluding that municipal liability could not exist without an underlying deprivation of constitutional rights.

Disposition

The court granted the defendants’ motion to dismiss and concluded that all of the plaintiffs’ claims must be dismissed. It denied the plaintiffs leave to amend because amendment would be futile, directed the Clerk of Court to terminate the motion, and closed the case. The court did not need to decide qualified immunity or the defendants’ Rule 12(b)(7) argument.