Professional Documents
Culture Documents
Amended Complaint Master
Amended Complaint Master
JASON B. NICHOLAS,
AMENDED
Plaintiff, COMPLAINT
Defendants.
___________________________________________________
INTRODUCTION
1. This is an action for civil rights violations. Plaintiff seeks declaratory and
October 30, 2015, Plaintiff was on assignment for the New York Daily News. While on
assignment, he was tasked with obtaining still and video imagery of the rescue of two
construction workers who had become trapped in a partial building collapse. While
physically removing him from the scene. Defendant Davis and DeBonis then revoked
the scene did not serve a compelling and content-neutral state interest. Instead, it was a
Plaintiff was intended to serve a content-neutral interest, it was not narrowly tailored
photographers employed by the City of New York, and one from the local utility
at the scene as well, behind police lines, albeit from inside a private commercial
gathering activity as Plaintiff. None of them were removed from the scene. The two
Defendants. Removing Plaintiff, and only Plaintiff, and revoking Plaintiffs press
5. Besides removing Plaintiff from the scene, Defendants Davis and DeBonis
Plaintiff fair warning that any objectionable conduct he engaged in was prohibited.
before a fair and impartial decision-maker, for almost seven months, until May 19, 2016.
as well as their wholly arbitrary revocation of his NYPD-issued press credential, were
not isolated actions. Instead, Defendants actions were part of, and pursuant to, an
unwritten NYPD policy, custom and practice of interfering with, and attempting to
and the City of New York approved, acquiesced to, condone and encourage. As
Defendant Bratton himself has said: With the press, you cant control what they write,
JURISDICTION
7. This is a civil rights action under the United States Constitution and 42
U.S.C. 1983. The Court has jurisdiction in this matter pursuant to 28 U.S.C. 1331
and 1343. The declaratory and injunctive relief sought is authorized by 28 U.S.C.
1391(b)(1) and (b)(2). The actions complained of took place in this judicial district;
evidence and other records relevant to the allegations are maintained in this judicial
district; and the Defendants are present and regularly conduct business in this judicial
district.
PARTIES
reporting, still imagery and video. From 2006, until the events at issue, he earned a
basis by various media outlets, including the New York Post, the New York Daily News
and the Daily Mail Online. In addition, Plaintiff's work is globally syndicated via
Corbis Images, and regularly appears in print and web-based publications around the
10. William Bratton is the Commissioner of the New York City Police
Department, and was at the time of the actions alleged in this Amended Complaint. He
is responsible for establishing policies and procedures for officers of the NYPD and its
Commissioner for Public Information. Bratton was personally aware of, explicitly
confining news-gatherers to so-called press pens or other areas that do not provide
visual or audio access to news-worthy events; and (iii) arbitrarily confiscating NYPD-
issued press credentials from news-gatherers, who try to assert their legal right to engage
the original Complaint and in this Amended Complaint, violated Plaintiffs rights under
11. Defendant Stephen Davis is the NYPD's Deputy Commissioner for Public
was aware of, explicitly approved and otherwise sanctioned through deliberate
that do not provide visual or audio access to news-worthy events; and (iii) arbitrarily
confiscating NYPD-issued press credentials from news-gatherers, who try to assert their
issued press credential. Defendant Daviss actions, and in-acton, as alleged in the
original Complaint and in this Amended Complaint, violated Plaintiffs rights under the
DCPI, his primary responsibility is the issuance of press credentials. DeBonis also
works in the field and appears at crime, fire, accident, protest and event scenes and
in the decision to restrict Plaintiffs news-gathering on October 30, 2015, and to revoke
alleged in the original Complaint and in this Amended Complaint, violated Plaintiffs
13. Defendant New York City is a duly organized municipal entity within the
State of New York. It is responsible for supervising its police department and its police
officers to ensure that they do not violate citizens' constitutional rights, including the
14. At all times relevant to this Complaint, Defendants acted under color of
state law.
FACTS
15. The NYPD began issuing press credentials to bona fide journalists shortly
after the beginning of the 20th Century. See, e.g., Pl.s Ex. A; New York Press
press credentials to counter thefts that were occurring at fire scenes. There would be a
fire, and thieves would loot affected buildings sometimes while the fire was still
burning. To prevent this, the NYPD began establishing security perimeters around fire
scenes preventing everyone but police, firefighters and NYPD-credentialed journalists
from entering.
16. At first, only writers were issued press credentials, or fire cards. The
cards explicitly empowered their holders to cross police and fire lines to engage in news-
gathering. Photographers, at first, were left out. In order to advocate for press
credentials, news photographers banded together and formed the New York Press
the United States. Before long, photographers were able to obtain these essential tools
for themselves through the efforts of the association. Hermann, New York Press
Photographers, at 7.
17. The NYPD had a mostly positive relationship with professional news-
gatherers for much of the 20th Century. The NYPD had a long-standing practice of
cooperating with members of the press and providing them with access to accident,
crime, fire, and demonstration scenes unless safety interests or proper performance of
police duties required otherwise. Pl.s Ex. B at 6 (Complaint, The Daily News v.
Giuliani, et al., unfiled, May, 1999). In practice, the access afforded to professional
journalists by the NYPD was, as a matter of course, close. See, e.g., Pl.s Exs. C, D,
& E; Brian Wallis, Weegee: Murder is my Business (Prestel Publishing, 2013); Jill
news-gatherers close access to crime, fire, accident, protest and event scenes was
codified in NYPD regulations in 1992, in NYPD Patrol Guide Procedure No. 212-49,
with a clear line of sight and within hearing range of the incident. Id. at 2.
19. While the NYPDs relationship with professional news-gatherers may have
once been good, its relationship with non-professional, citizen news-gatherers was more
activity. The classic example: a citizen witnesses police action that appears to be
wrongful and asks the police involved for identifying information, such as a name or
badge number, or takes a photograph, or refuses a police order to move along, and the
police arrest the citizen for obstruction. See N.Y. Penal Law 195.05 (proscribing
described in paragraph 19, the City of New York and the NYPD entered into a Consent
Decree in 1977. Black v. Codd et al., SDNY, No. 73-Civ.-5283, Stipulation & Order,
21. The generally good relationship between the professional press corp and the
NYPD changed in 1993, with the election of Rudolph W. Giuliani as mayor of New
York City. Soon after, the relationship between the press corp and the NYPD
(hereinafter the 1999 Complaint), the NYPD under Giuliani consistently ignored the
NYPD media guidelines and instead followed a policy, custom and practice of
interfering with media access to newsworthy events in public and private places. Pl.'s
Ex. B at 9.
(a) First, in recent years, the NYPD has repeatedly interfered with
press photographers and reporters by physically blocking camera lenses
at the scene of newsworthy events, even when no threat to public safety
exists and the press photographers and reporters are not interfering with the
NYPDs law enforcement function in any way.
(b) Second, the NYPD in recent years has also routinely interfered
with photographers and reporters by segregating and confining them to
poorly positioned press pens, even when there has been no legitimate
security or law enforcement reason for such pens. In many cases, these
pens have been positioned so far away from the scene of the crime, fire,
accident or demonstration as to deny press photographers and reporters
access to the scene altogether.
(d) Fourth, in recent years the NYPD has further interfered with
photographers and reporters right to access by arbitrarily confiscating
and/or threatening to confiscate press cards which entitle the bearer to
cross police and fire lines absent legitimate security concerns without
procedures for determining whether such confiscation is warranted, or if
and when the press card is to be returned.
24. Before the 1999 Complaint was filed, the NYPD entered into negotiations
Complaint. Those negotiations resulted in the City of New York agreeing to take a
the time, journalist Leonard Levitt was a longtime columnist at Newsday, headquartered
in Melville, Long Island. Levitt had written a number of articles critical of the NYPD,
and Commissioner Kelly couldn't take it anymore. In 2003, Kelly actually rode out to
security detail, to complain about Levitts critical coverage of the NYPD. C. Kilgannon,
Permitted Behind Police Lines, but Not Welcome, The New York Times, Nov. 6, 2009.
26. Newsday stood by their man, and Levitts critical coverage continued. Two
years later, the NYPD posted Levitts photograph at the entrance to Police Headquarters,
and refused to allow him into the building where journalists maintain offices known
colloquially as The Shack. Levitt had to retain legal assistance from the NYCLU to
re-gain access to the building, and with it, the resources therein. In January 2006, the
NYPD again attempted to ban Levitt from Police Headquarters, again notwithstanding
the fact that Levitt had a valid NYPD-issued press credential. Again, legal counsel from
the NYCLU intervened on Levitts behalf to ensure his access to the building. Then, in
1997, the NYPD refused to renew Leavitts NYPD-issued press credential. Id.
27. In 2009, Defendant Bratton was asked about the NYPDs treatment of
Levitt. At the time, Bratton had just retired as Commissioner of the Los Angeles Police
Department. Before he went West, Bratton served as NYPD Commissioner, from 1994
to 1996. During that time, Bratton dealt with Levitt. Regarding Levitt, Bratton told The
New York Times that: Hes been in the doghouse from time to time when I was there,
but we called it a penalty box. We wouldnt talk to him for a while, but then wed let
him out. With the press, you cant control what they write, but you can try to influence
action during a protest. On assignment for The New York Times, Robert Stolarik was in
rank of lieutenant and above, moved in to arrest a protester. Stolarik photographed the
action, NYPD-credential visible on his person. One of the officers shoved him
backward, and Stolarik was gang-tackled by other whit-shirted officers and beaten. He
sued for damages, and the City of New York offered him a settlement, which he took.
29. In February 2010 four Bronx youths were having a snowball fight when an
errant snowball accidentally hit a passerby. The passerby happened to be NYPD Sgt.
Adonis Ramirez, then off-duty and in plain clothes. After getting hit with the snowball,
Ramirez drew a fully-loaded handgun and arrested the four. New York Daily News
reporter Kerry Burke was assigned to cover the story, and went to Sgt. Ramirezs Bronx
apartment. A neighbor let Burke into the building where Ramirez lived. Ramirez was
not home, but his wife was. Burke spoke with her briefly. Numerous police officers
soon arrived at the scene. Burke identified himself as a journalist to the police. A
indicated a resident allowed Burke into the building, the police then accused Burke of
credential. Text on the back of all NYPD-issued press credentials states that (i) the
credential is the property of the New York City Police Department and (ii) may be
taken away by competent authority at any time. Because of this text, Burke complied
with the lieutenants order and surrendered his NYPD-issued press credential.
31. Eventually, the police let Burke go, but they refused to return his NYPD-
issued press credential. The lieutenant who took Burkes NYPD-issued press credential
telephoned DCPI. According to the lieutenant, DCPI instructed him not to return the
press credential to Burke. Instead, Burke was ordered to come into the DCPI office for a
meeting. A few weeks later, after the meeting, a DCPI official told Burke we may or
may not be in touch, or words to that effect. Seven months went by. New York Daily
News editor Kevin Convey had a meeting at the Harvard Club with NYPD
Commissioner Kelly. Over lunch, Convey brought up the taking of Burkes press
credential. Soon after, DCPI Det. Brian Sessa came to Burkes desk in the Shack, placed
for the New York Daily News in Brooklyn. He responded to a call of a hit-and-run
accident. An SUV had struck a pedestrian and fled the scene. When Taggart began
grabbed him from behind, threw him against a vehicle and put him in handcuffs. The
police officer informed Taggart that if he did not tell him how to delete the photographs
he had just taken with his digital camera he would be taken to jail. The police officer
was angry that Taggart had photographed an injured person being put in an ambulance.
The police officer demanded that Taggart instruct him how to delete the images. Under
the police officer's threat to take Taggart to jail, Taggart told the police officer how to
delete the photographs he had taken. The police officer then deleted the photographs
from Taggarts camera. The police officer wrote Taggart a summons for disorderly
conduct, and released him. Later, Taggart agreed to settle a lawsuit against the City.
33. On November 14, 2011, the NYPD initiated an operation to clear Zuccotti
Park of encamped Occupy Wall Street protesters. As part of the operation, hundreds of
NYPD officers established a security perimeter several blocks away from the park, from
behind which no view of police activity inside the public park was observable, either by
arrived at the scene, attempting to get to Zuccotti Park and witness the official action.
None of them were allowed through the police lines, notwithstanding that they were
closed the airspace above the park, preventing news helicopters from performing aerial
news-gathering.
advance, of the planned police action, and were already inside Zuccotti Park when the
police operation to clear the park of protesters and their tents began. When police first
advanced into the park, the first tent they cleared was the extra-large media tent, being
gathering. Pl.s Ex. I. Moments later, an NYPD officer ordered all NYPD-credentialed
news-gatherers inside the park to assemble, then he ordered them to leave the park.
35. At the time of the police operation to clear Zuccotti Park, Paul Browne was
the NYPDs Deputy Commissioner for Public Information the position held by
Defendant Davis in this action. During the police operation to clear the park, Browne
himself personally entered the park and seized NYPD-credentialed reporter Kerry
Burke, of the New York Daily News. Browne then ejected Burke from the park,
personally escorting him to a press pen that had, by then, been set up across the street
from the park. Pl.s Ex. J. At the same time Browne was ejecting Burke from the park,
another DCPI officer was ejecting the NYPD-credentialed photojournalist who had been
36. Meanwhile, on the street near Zuccotti Park, police arrested NYPD-
NYPD-issued press credential in plain view, hanging from his neck. Pl.s Ex. K. A
journalist for National Public Radio, Julie Walker, was also arrested. Pl.s Ex. L. A
photograph of Walkers arrest, like Hedlunds, shows her NYPD-issued press credential
in plain view, hanging from her neck. Id. Other journalists attempting to get to Zuccotti
Park were assaulted by members of the NYPD. NY1 reporter Lindsey Christ reported
seeing Reporters/photogs being thrown to the ground and pushed to wall if they get in
front of the wrong officer. Brian Stetler, of The New York Times, reported seeing a
37. A month later, when O.W.S protesters attempted to occupy a new space at
Duarte Square in Manhattan, the NYPD arrested Associated Press reporter Karen
Mathews, Associated Press photographer Seth Wenig, New York Daily News reporter
in plain view when they were arrested. See, e.g., Pl.s Ex. M. Notably, Lt. Daniel
Albano, a member of the NYPDs Legal Affairs Bureau, witnessed Wenigs arrest, and
was standing directly beside Wenig when he was being arrested, yet took no action to
38. Lysiaks arrest was personally ordered by Joseph Esposito, who was at the
the NYPD. Within the NYPD, only the Police Commissioner is higher in rank than
police action with his smart-phone when Chief Esposito ordered him arrested: Youre
under arrest. Put the phone away. Put your hands behind your back. Everybody else
39. On November 30, 2011, while covering the rescue of a man who attempted
to commit suicide by jumping in front of a PATH subway train at 23d Street and Sixth
Avenues, members of the Port Authority Police Department interfered with Plaintiffs
news-gathering by physically blocking his camera lens. Pl.'s Ex. O. When Plaintiff
refused to comply with unlawful police orders to cease taking photographs in a public
place, a Port Authority police sergeant punched him the chest and arrested him. Plaintiff
was charged with obstruction, in violation of N.Y. Penal Law 195.05 precisely the
police conduct proscribed by the Consent Decree in Black v. Codd. Pl.s Ex. G. The
Manhattan District Attorneys office refused to dismiss the charge. Plaintiff invoked his
right to a jury trial. That trial ended in a hung jury. Again, the Manhattan District
Attorneys office refused to dismiss the charge. After a second jury trial, Plaintiff was
acquitted.
40. On August 4, 2012, Robert Stolarik was on assignment for The New York
Times, paired with a reporter and tasked with reporting on the NYPD's stop-and-frisk
program, then just beginning to come under serious scrutiny. While observing police
respond to a dispute among Bronx teenagers, NYPD officer Michael Ackerman shoved
the camera Stolarik was using into his face. When Stolarik asked for the officers name
and badge number, Ackerman and another officer seized Stolarik, threw him to the
ground, and arrested him. His photographic equipment was damaged, and his NYPD-
issued press credential was also taken from him. Subsequently, the charges against
Stolarik were dropped, and Ackerman was charged with, and convicted of, falsifying
documents to justify the wrongful arrest. It was months before the NYPD returned
Stolariks press credential to him, and then only because of vigorous advocacy from The
41. On September 17, 2012, during peaceful protests celebrating the first
anniversary of the birth of the Occupy Wall Street protest movement, members of the
NYPD interfered with, assaulted, detained and in some cases arrested members of the
media who were on a public street, according to a letter from the National Press
Photographers Association to the NYPD. According to the letter, an NYPD lieutenant
repeatedly told journalists, including many with NYPD credentials, they could not be
on a public street. The lieutenant was also heard telling a group of reporters and
photographers, including several with NYPD-credentials, that they could not continue to
use cameras in a public area. Officers then used batons to shove groups of credentialed
journalists with arrest if they did not leave the sidewalk on the west side of Broadway.
This occurred at the same time police allowed members of the public access to that
42. On May 16, 2014, a robbery suspect was shot and killed by police in
Manhattan. Robert Stolarik was assigned to cover the event by The New York Times.
The NYPD established a crime scene in the immediate area around the shooting that
excluded all but essential NYPD investigators. Stolarik was outside the crime scene, in
were allowed to be. Enter Lt. Eugene Whyte of DCPI. Lt. Whyte ordered Stolarik to
put down his camera and leave the area. Pl.s Ex. Q. Video of the incident shows
Stolarik to be standing outside the crime scene, in a public place; it also shows an
NYPD-credentialed journalist to be closer to the crime scene than Stolarik was, when Lt.
Whyte ordered him to put down his camera and leave the area. Id.
43. On July 31, 2014, a man was killed by a subway train at the Broadway-
LaFayette subway station in Manhattan. Plaintiff was on the subway platform taking
photographs when an NYPD officer blocked his camera, and ordered Plaintiff to leave.
When Plaintiff displayed his NYPD-issued press credential, the NYPD officer said I
dont care if youre press. Upstairs. Upstairs. Upstairs. Upstairs. Sir you wanna get
arrested? I will lock you up. Upstairs. Now. Lets go. Have some respect. Pl.s Ex.
white-shirt was standing nearby when the police officer said this (at: 15). The police
supervisor witnessed the officers improper action, yet ignored it. Id. The police officer,
emboldened by his supervisors implicit approval of his action, then began pushing
Plaintiff backward, away from the scene. Members of the public were allowed to stay
in the same area on the subway-station platform as Plaintiff was physically ejected from.
was photographing an arrest occurring on the corner of Park Avenue and E.93d Street.
NYPD officers Lt. Bracero and Sgt. Romance interfered with and attempted to prevent
Costanza from photographing and reporting on their treatment of the arrestee. Lt.
Bracero and Sgt. Romance repeatedly ordered Costanza to move away from the scene
and stop taking photographs. They pointed at Costanza and threatened to arrest him if
Pressphoto Agency, was documenting the scene of a Black Lives Matter movement
protest when a police officer ordered him to leave the area. Upon information and
the area, police officers knocked him to the ground and arrested him. Pl.s Ex. T. Police
also seized his NYPD-issued press credential. Gomberts credential was not returned to
46. It was not the first time Gomberts news-gathering activity was interfered
with by members of the NYPD. On November 17, 2011, during an Occupy Wall Street
protest, he was also intentionally knocked to the ground by NYPD officers, even though
his NYPD-issued press credential was clearly visible hanging from a lanyard secured to
47. On March 11, 2016, Reuters staff photographer Brendan McDermid was
when a female NYPD officer accused him of shooting up-skirt photographs of women
leaving the subway. His NYPD-issued press credential was plainly visible, hanging
from his neck. The police officer threatened to arrested McDermid if he did not leave
the area. She summoned five other NYPD officers who surrounded him and threatened
to arrest him if he did not leave. Soon after, one of the officers placed a metal police
barricade in such a way as to make it impossible for McDermid to photograph the
48. A week later, on March 19, 2016, McDermid was covering an anti-Trump
sign on the curtilage adjacent to the Trump International Hotel and residence at
invaded his personal space, pressed his chest up against McDermids, and began driving
McDermid backwards while repeating Why are you pushing me? Why are you pushing
me?, though it was the officer who was pushing McDermid. McDermids NYPD-issued
press credential hung in plain view from a lanyard around his neck. When McDermid
protested, the officer called for back-up, and told McDermid he would be arrested if he
did not leave. At that point, the protester himself left, so McDermid left, too.
NYPD-credentialed news-gatherers are afraid to come forward and speak on the record
about instances of NYPD interference with their news-gathering activity. For instance,
journalist was explicitly warned against contacting Norman Siegal, a noted civil rights
and arrest for engaging in lawful news-gathering activity. For example, on May 19,
2016, NYPD officer Risel Martinez drew his handgun and pointed it at on-lookers
witnessing and video-recording an arrest Martinez and his partner were making. Pl.s
arrestee. Id.; NYPD Patrol Guide Procedure No. 203-11 (Members of the New York
City Police Department will NOT use chokeholds. A chokehold shall include, but is not
limited to, any pressure to the throat or windpipe, which may prevent or hinder breathing
or reduce intake of air.). Just before police officer Martinez drew his handgun and
ordered on-lookers to leave, the person Martinez was arresting said I cant breathe
the last words of Eric Garner, who was choked to death by NYPD officers, using a
banned choke-hold. A short time later, police officer Martinez punched and arrested one
51. The police action detailed in paragraph 50 appears, on its face, to violate
the consent decree in Black v. Codd, as well as NYPD regulations banning the use of all
chokeholds. Yet, instead of condemning the wrongful police action, Defendant Bratton
used the opportunity when asked about the episode during a press conference to
recording arrests amid backlash over Harlem cop caught punching man who filmed
him, New York Daily News, May 25, 2016. This has become very serious. I would
approves of, condones and encourages an unwritten policy, custom and practice of
following year, he applied for and was issued a press credential by the NYPD.
54. In order to gain meaningful access to various venues in which much of the
news for New York City is generated an NYPD-issued press credential is required for
photojournalists, even by agencies and officers not under the control of the NYPD. For
example, in order to bring cameras into the state and city courthouses in New York City,
state court officers enforce a policy requiring the presentation of an NYPD-issued press
credential.
55. In order for any journalist, not just a photojournalist with a camera, to gain
entry to press conferences and other events held at Police Headquarters, the Manhattan
District Attorney's office, City Hall, MTA headquarters, and the Office of the United
States Attorney for the Southern District of New York, among others, all require the
cover crime and fire scenes, parades and other special events, such as events attended by
to cross police security perimeters that are typically established around such events.
57. In light of the facts set forth above, in paragraphs 53-56, most if not all all
of the editors responsible for assigning journalists to cover events in New York City
credential.
59. On September 17, 2014, Plaintiff was on assignment for the New York
Daily News. His job that day was to obtain a picture of Roger Goddell, the
Commissioner of the National Football League. While carrying out his assignment,
Plaintiff was attacked and assaulted by Goodell's bodyguard, Thomas Crowe, a retired
NYPD detective. Crowe intentionally hit Plaintiff with the SUV he was driving, then
jumped out, yelled that he was a police officer, and proceeded to strike and choke
Plaintiff, in the middle of Park Avenue. One witness called 9-1-1 and said: He's going
to kill him. And right now the guy in the suit is hitting him. Oh my God, he's going to
kill him. No weapons, with his hands, he's strangling him. Pl.s Ex. W at 1. When the
NYPD arrived, however, they arrested Plaintiff, and charged him with assaulting Crowe.
After an investigation by the Manhattan District Attorney's office, the charges against
Plaintiff were dismissed. No charges were ever brought against Crowe, despite
60. Upon information and belief, as a result of Plaintiff's September 17, 2014,
arrest, DCPI Lt. Eugene Whyte went to the police precinct were Plaintiff was being held
pending arraignment. Whyte seized Plaintiffs NYPD-issued press credential. Pl.s Ex.
Plaintiff went without his NYPD-issued press credential for four months before the
District Attorney dismissed the charges against Plaintiff. After the charges were
61. On January 4, 2015, a funeral was held for slain NYPD officer Wenjian
Liu. Across the street from the funeral home, a sidewalk was open to the public.
the sidewalk and take a picture, NYPD officers objected to his presence and ordered him
to get into what they referred to as a press pen, located about 150 yards away. A
press pen is typically an area off the sidewalk surrounded by metal barricades. When
Plaintiff refused, and pointed out that the sidewalk was open to members of the public,
Defendant Whyte arrived. On the spot, Whyte declared the sidewalk to be a so-called
floating frozen zone, which allowed civilians to walk along the sidewalk, but
film Whyte issuing this order, he ordered Plaintiff to stop, and ordered Plaintiff to
surrender his NYPD-issued press credential. Plainitff complied with Whytes order.
62. On October 30, 2015, Plaintiff was on assignment for the New York Daily
City Hall. After the event, two construction workers became trapped in a partial
between 5th and 6th Avenues. Plaintiff's employer directed him to go to the scene and
63. When Plaintiff arrived one of the men had already been brought out, dead.
64. Efforts were underway to free the second worker, who was alive but
trapped.
65. The rescue effort itself could not be seen from the street, as the partial
collapse had occurred in the rear of the building. Plaintiff waited on the sidewalk next
to the building for visible, news-worthy activity to occur. As Plaintiff waited, his
NYPD-issued press credential plainly visible, a man in a suit appeared and ordered
Plaintiff to leave. Plaintiff asked the man in the suit to identify himself. The man in the
suit refused to identify himself, but persisted in his demand that Plaintiff leave. In order
to avoid a confrontation, Plaintiff entered an adjacent store. Workers in the store
allowed Plaintiff to be there. The man in the suit left. Plaintiff waited inside the store
66. As Plaintiff waited inside the store, personnel from DCPI arrived on the
scene, including Defendants DeBonis and Davis. Defendants Davis and DeBonis
rounded up all of the NYPD-credentialed journalists who had been on the public street
where rescue operations were taking place, and corralled them into a press pen.
67. The press pen was constructed with inter-locking metal barricades.
68. The press pen was located at the corner of 5 th Avenue and 38th Street, far
away from the scene of actual rescue operations. News-gatherers in the press pen
were not able to see, hear or photograph actual rescue operations at the scene.
press pen, out of sight and hearing of rescue operations, was not authorized by NYPD
regulations.
70. NYPD regulations do not authorize the use of press pens. Pl.s Ex. F.
allowed within sight and sound of the event or activity they are seeking to report on.
Pl.s Ex. F at 2 (The media will be given access as close as possible, with a clear line of
interfere with the video taping or the photographing of incidents in public places.
photographer constitutes censorship. Working Press Cards clearly state the bearer is
entitled to cross police and fire lines. This right will be honored and access will not be
access to areas frozen for security reasons. Pl.s Ex. F at 2. The reasons for creating
security frozen zones typically include high-level dignitary protection, such as visits
by heads of state; so-called suspicious devices, that is, things suspected of possibly
being bombs; and active-shooter scenes, where the shooter has yet to be killed or
captured.
gatherers, are not typically created for ordinary crime and fire scenes.
75. NYPD regulations govern police conduct at fire scenes. Pl.s Ex. Y
(NYPD Patrol Guide Procedure No. 212-58, FIRE). The types of emergency scenes
governed by NYPD Patrol Guide Procedure No. 212-58 are not limited to the scenes of
actual fires, but include accidents, building collapses and other catastrophes where the
FDNY has operational control and command. Unlike the NYPD, the FDNY has a
78. NYPD regulations governing fire scenes do not authorize the creation of
gatherers be allowed to cross police and fire lines at fire scenes. Id. at 1 (9. Permit only
the following persons or vehicles to enter fire lines: d. Persons holding unexpired:
pen described in paragraphs 66 through 69, out of sight and hearing of news-worthy
activity taking place on a public street, was not narrowly tailored to serve a compelling
and content-neutral governmental interest; nor was it rationally related to any legitimate
80. Upon information and belief, Defendants did not believe the second trapped
worker the FDNY was attempting to free could be saved, and believed the second
worker would be dead by the time he could be freed and brought out.
81. Upon information and belief, Defendants and other officials did not want
83. Upon information and belief, Defendant Daviss and DeBoniss restriction
84. On October 30, 2015, as Plaintiff waited inside the store for first responders
photographers outside the store, in the middle of the scene, taking pictures. There were
photographers from the Fire Department, the Police Department, the Buildings
provider.
86. Members of the public were allowed to enter and exit the commercial
establishments detailed in paragraph 85, and were allowed to walk on the sidewalk on
the side of the street opposite the damaged building. Some of these passersby
occasionally stopped to take photographs and video with cell-phones, smart-phones and
cameras.
87. NYPD regulations governing news-gatherers access to areas under police
control explicitly state that A member of the press with proper credentials may not be
excluded from an area where the general public has access. Pl.s Ex. F at 1 (NYPD
behind police lines, opposite the damaged building. Their names were Brendan
89. Defendants DeBonis and Davis were aware of the presence of these two
outside of the press pen, yet neither DeBonis nor Davis took action took action to have
90. Defendants DeBonis and Davis were aware of the presence of these two
outside of the press pen, yet did not take their NYPD-issued press credentials from them.
91. Finally, the trapped construction worker was freed. He was extracted from
the building, placed on a stretcher, and rolled toward a waiting ambulance. Plaintiff
exited the store he was in, and stepped out onto the street to document events.
Plaintiffs NYPD-issued press credential was in plain sight, clearly observable on his
person. Plaintiff walked approximately 150 feet through a scene filled with police,
firefighters and paramedics and not one questioned or challenged his right to be present.
92. Plaintiff walked unimpeded or challenged from the store he had been in to
93. Plaintiff stood behind emergency workers, totally out of their way. Plaintiff
breaking-news scene: close enough to create news-worthy imagery in this case to see
the subject of the rescue effort, the construction worker but not so close as to interfere
94. Plaintiff raised his camera to make still images and video of the rescued
95. DeBonis pulled Plaintiff away from the scene, abridging Plaintiffs news-
gathering. As he did so, Defendant DeBonis said What are you doing? What are you
96. NYPD regulations do not authorize the creation and enforcement of a so-
called press line. In fact, the concept of a press line a police-enforced perimeter
disallowed by NYPD regulations. See Pl.s Ex. F at 1-2 & Pl.s Ex. Y at 2.
97. Defendant Davis was present. Davis witnessed the events described above,
in paragraphs 91 to 95.
98. As DeBonis was leading Plaintiff away from the scene, Davis approached
and said to Plaintiff: This is the last time you'll do that. Pl.s Ex. Z
(https://www.youtube.com/watch?v=YufmrmfDjN4)
99. When Plaintiff asked what Davis meant, Davis responded You know what
I mean. Everyone else is over there working with us. We work with you all the time.
Don't bullshit me! He then ordered DeBonis to hold on to Plaintiff's press credential,
and to talk to me before you think of giving it back. Me personally. When Plaintiff
attempted to further engage Davis, he ordered Plaintiff to leave the scene: Get out of
100. DeBonis ordered Plaintiff to surrender his press credential to him. Because
detailed in paragraph 30, Plaintiff complied with DeBoniss order and surrendered his
corner where a police line had been established and ejected Plaintiff from the scene.
101. As DeBonis was leading Plaintiff away from the scene, DeBonis said to
Plaintiff that the rescued worker was probably going to die, so, you know, if you want
should not have captured images of the victim, and that it would be an additional wrong
103. As Plaintiff was being lead to the corner by DeBonis, some NYPD-
credentialed news-gathers in the press pen recorded the encounter. After DeBonis
ejected Plaintiff from the scene, he went over to the press pen and said, in a loud voice,
Tell your boys in the Press Photographers association he's never getting another press
104. Plaintiff was told that DeBonis also stated that the reason Plaintiffs NYPD-
issued press credential was revoked was because he allegedly jumped on the back of
the ambulance.
in paragraph 84 were charged, in part, with creating imagery for public distribution via
city-controlled social media internet websites. These included photographers for the
Police Department, the Fire Department, the Buildings Department and the Office of
Emergency Management. Upon information and belief, none of the images released for
the victims of the construction accident on 38 th Street on October 30, 2015, though they
the event. The published pictures and video included imagery of one of the victims.
107. Plaintiff sent several emails to DeBonis seeking the return of his NYPD-
108. Because DeBonis told Plaintiffs colleagues that the reason why his NYPD-
issued press credential had been revoked was because he allegedly jumped on the back
of the ambulance, Plaintiff sent emails with photographic and video evidence to
that the New York Daily News used the imagery he created that day, thus establishing
video documenting Plaintiffs activity, establishing that he was not warned or otherwise
told he could not be where he was, and establishing that he did not jump on the back of
111. Third, Plaintiff sent an email to DeBonis at 6:26 PM on October 30, with
images showing that he was behind rescue personnel, raising his camera high in the air
to shoot over rescue personnel, rather than risk interfering with them.
112. Finally, at 10:00 PM on October 30 Plaintiff sent DeBonis another email
with more images showing that he had not come close to interfering with rescue
personnel.
114. Fourth, the next day, at 8:18 AM, Plaintiff sent an email to Defendant
press credential: I am, of course, available, should it be convenient for you and the
Deputy Commissioner to discuss this further and allow me to apologize in person and
discuss how important my work is, and how valuable your work is to my work.
115. Finally, on December 1, 2015, before initiating the instant action, Plaintiff
sent one last email to DeBonis again requesting an opportunity to be heard regarding the
taking of his press credential: can i come in and talk about my press card?
116. Despite Plaintiffs numerous emails to DeBonis contesting the taking of his
press credential, and two explicit requests for an opportunity to be heard regarding the
taking of his press credential, Defendants did not provide Plaintiff an opportunity to be
heard regarding the taking of his press credential until May 19, 2016.
10:30 PM in the evening, hours after the taking of Plaintiffs press credential,
presumably relates to the rescue scene on 38th Street earlier that day.
118. Plaintiff was never advised, or in any way made aware, that a frozen zone
was created at the scene on 38th street, before Defendants took Plaintiffs NYPD-issued
press credential.
119. No true content-neutral security frozen zone was created at the scene on
38th street. Defendants assertion that a frozen zone was created on 38 th street was and is
a post-hoc pretext intended to provide legal cover for extra-legal and unconstitutional
120. If, in fact, a true content-neutral security frozen zone was created on 38 th
Street, no one informed Plaintiff of that fact, before the taking of his NYPD-issued press
credential; nor did anyone inform Plaintiff, before the taking of his press credential, that
122. The NYPD-issued press credential Plaintiff possessed on October 30, 2015,
itself explicitly states in writing on the press credential that its bearer is is entitled to
123. A document DeBonis made Plaintiff sign, on two separate occasions, when
DeBonis issued Plaintiff a press credential, says explicitly that I understand that the
Press Card holder 'is entitled to cross police and fire lines.
124. The City Law authorizing and requiring the NYPD to issue press
credentialed news-gathers may gain access to include violent and chaotic ones, where
lives often hang in the balance, such as crime scenes, fires, train wrecks, bombings,
125. At no time did Defendants ever advise Plaintiff that he had to a right to
demand a hearing in the event of the taking of his NYPD-issued press credential,
pursuant to Section 11-11 of Title 38 of the Rules of the City of New York.
126. On May 12, 2016 Plaintiff learned, for the first time, at oral argument
during proceedings related this lawsuit, that the taking of his NYPD-issued press
credential was temporary, not permanent, and that he therefore had the right to demand
a hearing from Defendants pursuant to Section 11-11 of Title 38 of the Rules of the
Defendants Davis and DeBonis, pursuant to Section 11-11 of Title 38 of the Rules of
. 128. On May 19, 2016, Edward Mullen, DCPIs Commanding Officer, and Lt.
Mullen and Whyte are under the command of the officer who made the initial decision
Mullen is a Deputy Chief, and Whyte is a Lieutenant both inferior in rank to Deputy
130. Being under the command of the officer who made the decision presented
Plaintiffs press credential, and Mullen and Whtye were inferior in rank to Davis, and in
fact are under his direct chain-of-command, they were unable to be fair and impartial in
this case.
131. Second, the proceeding afforded Plaintiff was less than fair and impartial
because a member of the NYPD without an authorized role was not only present during
the proceeding, but was an active, biased and overtly hostile participant in the decision-
making process. The applicable regulations state that the DCPI Commanding Officer
shall be the sole Hearing Officer. 38 RCNY 11-11(e). No provision is made for the
132. Seated beside Hearing Officer Mullen in this case, however, throughout the
unwritten NYPD policy and practice to suppress, abridge and shape news-gathering is
followed by other police officers, both within and without DCPI. Typically, Whyte
issued press credentials, without any process of law whatsoever, including Plaintiffs
retaliatory actions, Whyte is alleged to have abridged Stolariks access to a crime scene.
136. Though Whytes presence and participation at Plaintiffs 11-11 hearing was
not authorized, there can be no reasonable doubt as to Whytes active role in the
proceeding: when Defendant Whyte stepped out of the hearing room, Hearing Officer
demonstrated his active role in the proceeding by taking the reins of the proceeding, by
asking Plaintiff if had another witness to call, and opining on the admissibility of a video
addition to sitting beside the Hearing Officer Mullen, Whyte escorted Plaintiffs
witnesses into and out of the hearing room. As he was escorting Plaintiffs second
witness, Dennis Van Tine, to the hearing room, Whyte stated to Van Tine: Shouldnt
you be on Madison Avenue waiting for someone to come out of a bar or something?
139. Then, during Van Tines testimony, Whyte initiated a line of inquiry
140. Plaintiff was denied the opportunity to confront and address adverse
141. The night before the proceeding, Lisa Bland, Special Counsel to DCPI,
informed Plaintiff via e-mail that at the proceeding the department will present any
documentary evidence that it deems relevant to the issue of reinstatement of the press
pass.
142. In response, Plaintiff asked for the opportunity to review any adverse
evidence the Hearing Officer would be considering. Bland, at that point, advised
Plaintiff in an e-mail that This is not an adversarial proceeding. You will have the
143. During the proceeding, neither DeBonis nor Davis appeared as a witness.
144. No report, statement or document was presented or read into the record
145. Based on paragraphs 142, 143 and 144, the presentation of adverse
evidence occurred outside of the proceeding where Plaintiff was present, and Plaintiff
146. At the end of the proceeding, Plaintiff asked Hearing Officer Mullen
whether there was other evidence or information that had been considered or would be
considered that had not been presented during the proceeding. Before Hearing Officer
Mullen answered, Whyte interrupted and said: This is a hearing where you present to
us.
147. Lastly, at no point during the proceeding was Plaintiff ever advised of a
specific rule or expectation of conduct that he allegedly violated. The proceeding was
initiated by Hearing Officer Mullen saying: The floor is yours you can tell us what
At you convenience can you call me at the office so we may discuss your hearing.
Thanks.
150. Plaintiff called the number Whyte provided to call him, twice, and sent him
two emails. Yet, Whyte was not available when Plaintiff called the provided number,
151. On June 23, 2016, during a status conference on this lawsuit, Plaintiff
learned, for the first time, that Defendants decided to return Plaintiffs press credential.
152. The procedures for taking NYPD-issued press credentials from journalists
wholly lack the substantive and procedural safeguards required by the Due Process
Clause for depriving professional journalists of their federally protected liberty and
In short, Plaintiff would have been afforded a fairer hearing were he an inmate accused
of an infraction of prison rules New York State prisoners facing solitary confinement
are afforded more substantive and procedural due process safeguards than professional
New York Codes, Rules & Regs., ch. V, sub ch. A (rules and procedures governing the
implementation of standards of inmate behavior), with Title 38 Rules of the City of New
York, ch. 11, sub ch. B (appeal procedures governing denial or revocation of NYPD-
hasnt worked on-assignment for any client since December 12, 2015. As a result of
Defendants actions, Plaintiff is no longer working regularly for the New York Daily
News, and has lost other employment as well, among other harm.
CAUSES OF ACTION
156. Defendants DeBonis and Davis, as alleged above and incorporated here by
reference, violated Plaintiff's First, Fourth and Fourteenth Amendment rights to freedom
of the press, speech, assembly, intra-state movement and to petition the government for
30, 2015, by physically removing Plaintiff from the rescue scene on 38 th street.
Defendants removal and forced movement of Plaintiff from the scene did not serve a
forced movement of Plaintiff was intended to serve a content-neutral interest, it was not
157. Defendants DeBonis and Davis, as alleged above and incorporated here by
Defendants violated Plaintiffs right to equal protection of law when they abridged
from the rescue scene, and revoking his press credential, when other similarly-situated
news-gatherers were allowed to operate behind police lines at the rescue scene,
including two NYPD-credentialed photojournalists who did not have their NYPD-issued
press credentials taken. Removing Plaintiff from the scene, and only Plaintiff, and
revoking Plaintiffs press credential, and only Plaintiffs, violated Plaintiffs Fourteenth
158. Defendants DeBonis and Davis violated Plaintiffs right to substantive and
procedural due process of law. First, Defendants DeBonis and Davis failed to afford
Plaintiff fair warning that any objectionable conduct he engaged in was prohibited;
specifically, notice that a frozen zone had been created during the rescue operation at
issue, and that Plaintiff was not allowed into the frozen zone. Second, Defendants
159. Defendants Bratton, Davis, Whyte and City of New York violated
and practice of interfering with news-gathering by: (i) physically blocking cameras and
confining news-gatherers to so-called press pens or other areas that do not provide
visual or audio access to news-worthy events; and (iii) arbitrarily confiscating NYPD-
issued press credentials from news-gatherers, who try to assert their First, Fourth and
RELIEF REQUESTED
1. That this Court declare that the Defendants have followed and enforced an
access to events of public interest in public places by (i) physically blocking cameras
confining news-gatherers to so-called press pens or other areas that do not provide
visual or audio access to news-worthy events, sometimes even when the public is
afforded access to areas where news-worthy events are occurring; and (iii) arbitrarily
confiscating NYPD-issued press credentials from news-gatherers, who try to assert their
2. That this Court declare that the Defendants violated Plaintiffs First, Fourth
and Fourteenth Amendment rights on October 30, 2015, when they physically interfered
street, and further that they violated Plaintiffs First and Fourteenth Amendment right to
procedural and substantive due process of law when they summarily revoked his NYPD-
issued press credential without good cause, and without affording him a meaningful
opportunity to be heard;
4. That this Court enter declaratory and injunctive relief necessary and
appropriate to remedy Defendants violations of Plaintiffs rights under the First, Fourth
(h) Requiring that the hearing mandated by this Order upon the taking of
an NYPD-issued press credential:
(i) shall be imitated before the revocation of the credential,
or within seven days of its taking, and be concluded no later than thirty
days of the taking, including issuance of the written decision required by
this Order;
determined at trial;
6. For an award of costs Plaintiff incurred in bringing and litigating this
action; and
7. For such other and further relief as the Court deems just, proper and
equitable.
I swear the foregoing under the penalty of perjury; as to matters alleged upon
information and belief, I believe them to be true.
__________________________
JASON B. NICHOLAS
Plaintiff, Pro Se