Kye v. O'Hare

Background

Kiyee Kye sued eight named New York City Police Department officers and the City of New York. He alleged that, shortly after an 8:00 p.m. curfew began on June 2, 2020, he and his cousin were walking toward a train station. Kye said he saw officers tackle a young Black male, asked his cousin to record the police action, and remained more than 50 feet away. According to the complaint, officers ordered Kye and his cousin to move back. After Kye complied and raised his hands, officers allegedly grabbed, tackled, beat, and handcuffed him without first giving him a warning or dispersal order. Kye received a summons for violating curfew, but the summons and charges were later dismissed without a court appearance.

The curfew order prohibited people from being in public during curfew hours but listed exemptions, including essential workers, people seeking medical treatment or supplies, and people experiencing homelessness without viable shelter. The order stated that a person who knowingly violated it could be guilty of a misdemeanor. The complaint also alleged that internal police instructions required officers to issue reminders and several warnings before enforcing the curfew against someone who refused to comply.

Claims and motion

Kye asserted four claims under 42 U.S.C. § 1983, a federal law allowing claims against state actors who violate federal rights: false arrest under the Fourth Amendment; First Amendment retaliation based on observing or recording police activity; unequal treatment under the Fourteenth Amendment’s Equal Protection Clause; and municipal liability against the City based on alleged failure to train and supervise officers. He also asserted state-law claims for false arrest, excessive force, free-speech retaliation, and violation of an executive order.

The defendants moved under Federal Rule of Civil Procedure 12(b)(6), which tests whether a complaint plausibly states a legal claim. They did not move to dismiss the excessive-force claims. The court treated both the federal and state false-arrest claims as part of its false-arrest analysis.

False arrest

The court denied the motion to dismiss the federal and state false-arrest claims. Probable cause—reasonable grounds to believe a person committed a crime—is a complete defense to false arrest. The defendants argued that Kye admitted being outside after the 8:00 p.m. curfew and was not alleged to fall within a listed exemption.

The court concluded that, based only on the complaint, it could not determine as a matter of law that the officers had probable cause. The order’s exemptions created uncertainty about how officers distinguished people subject to the curfew from exempt people. The requirement that a violation be knowing also created uncertainty about how a reasonable officer would assess Kye’s circumstances. The alleged failure to issue a dispersal order was relevant context, although it did not automatically eliminate probable cause. The court stated that the record could look different at summary judgment and noted that the defendants had not raised qualified immunity at this stage.

First Amendment retaliation

The court dismissed Kye’s federal First Amendment retaliation claim. The complaint did not allege that Kye himself recorded the police or was engaged in journalistic activity; it alleged that he watched the police and asked his cousin to record. The court stated that the Second Circuit had not recognized a freestanding First Amendment right to observe police activity unrelated to other expressive activity. It also concluded that Kye had not alleged that he was receiving expressive content because the person being arrested was not alleged to be engaged in protected First Amendment activity.

Equal protection

The court dismissed the Fourteenth Amendment equal-protection claim. Kye alleged that two white men nearby were recording the police and were told to leave rather than being arrested. The court found that the allegations plausibly showed the men were similarly situated to Kye. But it held that Kye’s allegation that the difference in treatment was caused only by skin color was a bare legal conclusion unsupported by additional facts showing racial motivation.

Municipal liability

The court granted the motion to dismiss Kye’s § 1983 municipal-liability claim against the City. That claim was based on the alleged failure to train and supervise officers regarding observing or recording police activity. Because the court dismissed the underlying First Amendment claim, it held that the municipal-liability claim could not succeed without an underlying constitutional violation. The court also stated in a footnote that the complaint did not allege a municipal policy or practice causing false arrest or excessive force.

State-law claims and disposition

The court denied the motion as to the state-law false-arrest claim and stated that the City remained a defendant on that claim under a theory of employer responsibility. The court understood the federal and state excessive-force claims to be excluded from the motion because defendants had not addressed them.

The court dismissed Kye’s state constitutional free-speech-retaliation claim because it duplicated the dismissed § 1983 First Amendment claim. It also dismissed the freestanding executive-order claim because the complaint and Kye’s legal memorandum did not identify its legal basis and the claim appeared duplicative of the false-arrest claim.

In its conclusion, the court stated that the motion to dismiss was granted in part as to the federal First Amendment retaliation, equal-protection, and municipal-liability claims and the state-law free-speech-retaliation and executive-order claims. The motion was denied as to the false-arrest claims. The parties were ordered to submit a proposed case-management plan within 14 days.