14-812-cv
Lebowitz v. City of NY

                                    UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                            SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed on or
after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and
this court’s Local Rule 32.1.1. When citing a summary order in a document filed with this court, a
party must cite either the Federal Appendix or an electronic database (with the notation “summary
order”). A party citing a summary order must serve a copy of it on any party not represented by
counsel.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 2nd
day of June, two thousand fifteen.

PRESENT:

           JOSÉ A. CABRANES,
           ROBERT D. SACK,
           GERARD E. LYNCH,
                                Circuit Judges.
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CLAIRE LEBOWITZ, ET AL.,
                      Plaintiffs-Appellants,

                     -v.-                                                                  No. 14-812-cv

CITY OF NEW YORK, ET AL.,
                      Defendants-Appellees.
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FOR PLAINTIFFS-APPELLANTS:                                                PAUL L. MILLS, Law Office of Paul L. Mills,
                                                                          New York, New York.

FOR DEFENDANTS-APPELLEES:                                                 FAY S. NG, Assistant Corporation Counsel
                                                                          (Pamela Seider Dolgow on the brief), for Zachary
                                                                          W. Carter, Corporation Counsel of the City of
                                                                          New York, New York, New York.

       Appeal from a February 25, 2014 judgment of the United States District Court for the
Southern District of New York (Jed S. Rakoff, Judge).


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     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the February 25, 2014 judgment of the District Court is AFFIRMED.
        Plaintiffs Claire Lebowitz and Keegan Stephan appeal an order of the District Court
entering summary judgment on behalf of Defendants City of New York, NYPD Patrol Officer
Adrianne Edwards, and NYPD Officer Does 1-10 (collectively, the "City"). Lebowitz and Stephan
were Occupy Wall Street protestors who were arrested for trespass in Zuccotti Park on January 10,
2012. They contend that the City violated the First, Fourth, Sixth, and Fourteenth Amendments of
the Constitution during their arrest and subsequent detainment. Plaintiffs also argue that the
District Court abused its discretion in denying their request for leave to file an amended complaint.
We assume the parties’ familiarity with the underlying facts and the procedural history of the case.
        For the following reasons, we affirm the judgment of the District Court.
                                      I. First Amendment Claim
          We agree with the plaintiffs that their act of lying down in Zuccotti Park under the
circumstances presented likely demonstrated "'[a]n intent to convey a particularized message . . . and
[ ] the likelihood was great that the message would be understood by those who viewed it,'" such
that they engaged in protected expressive conduct. Texas v. Johnson, 491 U.S. 397, 404 (1989) (first
alteration in original) (quoting Spence v. Washington, 418 U.S. 405, 410-11 (1974) (per curiam)). "We
may affirm, however, on any basis for which there is a record sufficient to permit conclusions of
law, including grounds upon which the district court did not rely." Leon v. Murphy, 988 F.2d 303, 308
(2d Cir. 1993). The plaintiffs do not challenge the constitutionality of the park rules as reasonable,
content-neutral, time, place, and manner restrictions. See Ward v. Rock Against Racism, 491 U.S. 781,
791 (1989). They argue only that the arresting officers lacked the authority to arrest them pursuant
to those rules, because the plaintiffs had not violated them. As we explain below, however, the
police officers had probable cause to arrest the plaintiffs for violating park rules. The officers thus
acted within their authority. No First Amendment violation therefore occurred.
                                     II. Fourth Amendment Claim
         The District Court correctly concluded that the security guard's statements to the arresting
officers provided the officers with probable cause to believe that the plaintiffs were guilty of
trespass. See Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 118 (2d Cir. 1995) ("There can be no federal
civil rights claim for false arrest where the arresting officer had probable cause."). "When
information is received from a putative victim or an eyewitness, probable cause exists, unless the
circumstances raise doubt as to the person's veracity," Curley v. Vill. of Suffern, 268 F.3d 65, 70 (2d
Cir. 2001) (citation omitted), and the plaintiffs point to no such circumstances here.
                                     III. Sixth Amendment Claim
        The District Court also correctly concluded that the plaintiffs' Sixth Amendment rights were
not violated. The plaintiffs do not dispute that they were able to contact their attorneys prior to
arraignment and they were represented at arraignment. The plaintiffs therefore cannot


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"demonstrate interference in their relationships with counsel [or] impairment of their ability to
mount a defense." United States v. Stein, 541 F.3d 130, 157 (2d Cir. 2008).
                               IV. Unlawful pre-arraignment delay claim
         "[T]he Fourth Amendment provides the proper analytical framework" for claims related to
police activities that allegedly "prolonged [arrestees'] postarrest detention[s]." Bryant v. City of New
York, 404 F.3d 128, 136 (2d Cir. 2005). Because the plaintiffs were arraigned within 48 hours, any
pre-arraignment delay the plaintiffs experienced was presumptively reasonable. See id. at 137-38.
The plaintiffs failed to rebut this presumption: The plaintiffs have not shown that their
arraignments were delayed by "ill will," "delay for delay's sake," officers' attempts to gather more
evidence against them, Cnty. of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991), or any other
"extraordinary circumstances," Bryant, 404 F.3d at 138.
                                          V. Municipal Liability
         Because we affirm the District Court's award of summary judgment to the defendants on
the plaintiffs' underlying claims of constitutional violations, their claims for municipal liability arising
under Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658 (1978), are without merit. See
Segal v. City of New York, 459 F.3d 207, 219 (2d Cir. 2006).
                                     VI. Motion for Leave to Amend
          The District Court did not abuse its discretion in denying the plaintiffs' motion for leave to
amend, because the motion would have been futile. See Lucente v. Int'l Bus. Machines Corp., 310 F.3d
243, 258 (2d Cir. 2002). The plaintiffs concede that they were not subjected to completed iris scans
under the NYPD's iris-scan program. Indeed, even assuming arguendo that the program generally or
in some circumstances effects an unreasonable search in violation of the Fourth Amendment,
neither plaintiff was subjected to an actual (as opposed to attempted) search. See United States v.
Haqq, 278 F.3d 44, 47 (2d Cir. 2002) ("[A] defendant's Fourth Amendment rights are violated only
when the challenged conduct invaded his legitimate expectation of privacy rather than that of a third
party." (emphasis in original) (internal quotation marks omitted)).
                                            CONCLUSION

       We have considered plaintiffs’ remaining arguments and find them without merit.
Accordingly, we AFFIRM the February 25, 2014 judgment of the District Court.


                                                 FOR THE COURT,
                                                 Catherine O’Hagan Wolfe, Clerk of Court




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