Crossgate Lawsuit

STATE OF NEW YORK SUPREME COURT COUNTY OF ALBANY ————————————X STEPHEN DOWNS, Plaintiff, VERIFIED COMPLAINT -against- Index # THE TOWN OF GUILDERLAND; TOWN OF GUILDERLAND POLICE OFFICER ADAM MYERS; PYRAMID MANAGEMENT GROUP, INC.; and PYRAMID CROSSGATES CO., Defendants. ————————————X Plaintiff, Stephen Downs, as and for his verified complaint against the Defendants alleges as follows: 1. Plaintiff is an individual who resides at 26 Dinmore Road, Selkirk, N.Y. 12158. 2. Defendant Town of Guilderland (“Town”) is a municipality and a political subdivision of the State of New York. The acts, policies and practices of the Town as set forth herein were undertaken and implemented under color of state law. 3. Defendant Adam Myers (“Myers”) is a police officer employed by defendant Town. His acts as set forth below were undertaken under color of state law, were within the scope of his employment and were in furtherance of his employer’s interests. 4. Defendant Pyramid Crossgates Co. is a corporation, which is owned by defendant Pyramid Management Group, Inc. (the “Pyramid defendants”), both of which transact business within the State of New York. 5. The Pyramid defendants own and operate Crossgates Mall, a retail complex of stores and businesses in the Town of Guilderland, which is open to the public and which is a place of public accommodation. 6. All of the events described in this Complaint occurred during regularly scheduled business hours while Crossgates Mall and the stores and other retail establishments contained within Crossgates Mall were open to the public and were, in fact, being used by the public. 7. Members of the public who utilize Crossgates Mall to shop, dine, attend movies or simply to socialize, commonly wear clothing containing commercial messages (such as brand names or logos), cultural information (such as the names of musical groups or sports teams), and political messages (such as the names of political candidates). 8. The Pyramid defendants regularly, voluntarily and affirmatively create a public forum for the accommodation of expressionist activity by permitting the common areas of Crossgates Mall to be utilized by members of the general public and community organizations of various types to engage in non-commercial expressive conduct of a civic or community nature such as to disseminate information concerning the activities and programs of the particular groups and to raise funds for the operation of programs sponsored by said groups. 9. Defendant Town operates a police station located within Crossgates Mall. The police station occupies exclusive space within Crossgates Mall and is available to be accessed and utilized and is accessed and utilized by members of the public for all of the purposes for which police stations are commonly used by members of the public. The police station located within Crossgates Mall is also utilized by defendant Town for public and governmental purposes in the same manner as police stations are commonly utilized by municipal entities. 10. All of the events described in this Complaint occurred during regularly scheduled business hours while the police station located within Crossgates Mall was open to the public and was, in fact, being used by the public. 11. On information and belief, the operation of a police station within Crossgates Mall as described in paragraph 9, supra, is pursuant to mutual understanding and agreement between defendant Town and the Pyramid defendants. 12. Plaintiff has complied with all requirements of the NYS Town Law and the NYS General Municipal Law in regard to presentation of his claims prior to the commencement of this action. Specifically, plaintiff served a Notice of Claim on defendant Town on or about May 29, 2003, a date within 90 days of the date the causes of action herein arose and was examined by defendant Town pursuant to General Municipal Law §50-h on August 14, 2003. More than thirty days have elapsed since the service of the Notice of Claim and the adjustment or payment thereof has been neglected or refused. 13. On March 3, 2003, at about 6:30 PM, plaintiff purchased from a store in Crossgates, a T-Shirt which stated “Peace on Earth” on one side and “Give Peace A Chance” on the other side, and plaintiff wore the T-Shirt to the food court in Crossgates where plaintiff purchased some food. 14. On March 3, 2003 at about 6:50 PM, two security guards employed by the Pyramid defendants, who on information and belief were Robert Williams and Calvin Wilson, confronted plaintiff and the two security guards directed the plaintiff to remove the T-Shirt or leave the Mall. 15. Plaintiff refused to do as directed by the security guards. 16. On March 3, 2003, at about 6:55 PM, plaintiff was confronted by the two security guards and by defendant Police Officer Meyers, and the two security officers and defendant Myers directed the plaintiff, on threat of arrest, to remove the T-Shirt or leave the Mall. 17. Plaintiff refused to do as directed by the security guards and defendant Myers. 18. On information and belief, defendant Myers then contacted the attorney for defendant Town, Denise Randall, and sought direction as to what actions, if any, he should take. 19. On information and belief, defendant Myers was directed by Ms. Randall, the attorney for defendant Town, that plaintiff could be arrested for trespass if Crossgates told plaintiff to leave their property and he refused to leave. 20. On information and belief, Ms. Randall, as the attorney for defendant Town, was formulating and expressing the policies of defendant Town and was authorized to do so. 21. Defendants sought to exclude plaintiff from Crossgates Mall through the exercise of a power having its source in state authority. 22. The Pyramid defendants can be described in all fairness as state actors working together with defendant Town. 23. Defendants sought to exclude plaintiff from Crossgates Mall because of the specific content of the written information on the T-shirt plaintiff was wearing. 24. On March 3, 2003 at about 7:00PM in or near the food court of Crossgates Mall, the defendants arrested the plaintiff through their agents Robert Williams, Calvin Wilson and Officer Meyers after the plaintiff refused to leave the mall, or to remove the T-Shirt that said “Peace on Earth” and “Give Peace A Chance”. 25. Plaintiff was placed in handcuffs by defendant Myers. 26. Plaintiff was confined by defendant Myers, acting on behalf of himself and the other defendants. 27. Plaintiff was aware of his confinement. 28. Plaintiff did not consent to his confinement. 29. Defendants falsely arrested plaintiff without legal cause, justification or basis. 30. Plaintiff did not enter or remain unlawfully at Crossgates Mall. 31. At no time prior to the arrest, did plaintiff engage in any conduct that was disruptive or interfered with any other members of the public who were shopping or otherwise making use of Crossgates Mall. 32. Defendants had no credible basis for believing that plaintiff had engaged in any conduct that was disruptive or interfered with any other members of the public who were shopping or otherwise making use of Crossgates Mall. 33. Plaintiff was arrested because of the content of the written information on the T-shirt plaintiff was wearing. 34. Plaintiff was led, in handcuffs, by defendant Myers through the Mall and eventually taken to the police station located within Crossgates Mall. 35. Plaintiff was held in custody for approximately two hours. 36. At the police station located within Crossgates Mall, Defendant Myers prepared an accusatory instrument charging Plaintiff with Trespass as well as other related paperwork. 37. The accusatory instrument was signed by Robert Williams, acting on behalf of the Pyramid defendants. 38. Plaintiff was then transported by defendant Myers in a Town of Guilderland police car to the Guilderland Town Hall. 39. On March 3, 2003 at around 9:00PM, plaintiff was arraigned in the Guilderland Town Court on the charge of Trespass and the Court released plaintiff on his own recognizance. 40. On or about March 17, 2003, the Town Court dismissed the Trespass charge against plaintiff with prejudice. 41. On information and belief, in or around 1984, defendant Town of Guilderland and the Pyramid defendants agreed that in consideration of Pyramid building the Crossgates Mall in Guilderland, the Town of Guilderland would reconfigure roadways to provide access to Crossgates Mall, would reduce property taxes to be paid on the Crossgates Mall property and would take other action to facilitate the planning, building and success of the Crossgates Mall, which was projected to provide the Town of Guilderland with a large amount of sales tax revenue. 42. On information and belief, since 1984, the Crossgates Mall has provided to the defendant Town of Guilderland a large amount of sales tax revenue, has become the largest retail market venue in the Town of Guilderland, and the Capital District, and the percentage of retail merchants in the Town of Guilderland has increasingly become concentrated in the Crossgates Mall, which has forced citizens of Guilderland and the Capital District to shop in Crossgates Mall where such a high percent of retail merchants are located, all of which occurred in part as a result of the policies, partnership, and assistance given to the Crossgates Mall by the defendant Town. 43. The Pyramid defendants have taken retail merchants and markets which formerly did business in a public forum and have caused them to move to a purportedly privatized space with the assistance, agreement and cooperation of the defendant Town of Guilderland, with the result that the Pyramid defendants now exercise quasi governmental authority and responsibility with respect to persons present in the Crossgates Mall, and may not violate any of rights given to such persons under Federal or State Constitutions. 44. The actions of the defendants, individually and in concert, caused injury to plaintiff by violating his rights as protected by the US and NYS constitutions and laws, by falsely arresting plaintiff, by holding plaintiff in custody, by curtailing his liberty and by causing embarrassment to plaintiff and damage to plaintiff’s reputation. 45. The actions of the defendants, individually and in concert, violated plaintiff’s clear and well-established constitutionally protected rights to freedom of speech, freedom to travel, equal protection of the laws and freedom from infringements on his liberty without due process of law. 46. On March 3, 2003, plaintiff had a desire to wear expressive clothing, including a T-shirt with a political message, in public at the Crossgates Mall. 47. Plaintiff continues to have the desire to wear expressive clothing, including while at Crossgates Mall and further has the desire to do so without fear that by wearing expressive clothing such as a T-shirt with a political message he will be subject to detention and arrest by defendants or individuals acting on their behalf. 48. The actions of the defendants, individually and in concert, were pursuant to policies, practices, customs or usages of the defendant Town of Guilderland which required, encouraged, permitted or tolerated violations of the statutorily and constitutionally protected rights of individuals in the Town of Guilderland who sought to exercise their rights of freedom of speech and freedom of travel and/or which showed deliberate indifference as to whether the constitutionally protected rights of individuals such as the plaintiff would be violated by the actions of the defendants and/or their agents. 49. In particular, on information and belief, the Town of Guilderland had a policy, practice, custom or usage of complying with any request of the Pyramid defendants to subject any individual to arrest and prosecution and to utilize the full force and authority of the Town through its police officers, police station, police cars and all associated procedures and mechanisms, regardless of whether the action sought by the Pyramid defendants was based on probable cause or whether the action sought by the Pyramid defendants would constitute or result in a violation of an individual’s statutorily or constitutionally protected rights. 50. The amount of damages sought herein exceeds the jurisdictional limits of all lower courts which might otherwise have jurisdiction. FIRST CAUSE OF ACTION – FALSE ARREST – DEFENDANTS TOWN AND MYERS 51. The allegations of paragraphs 1 through 50 are realleged as if fully set forth herein. 52. As a result of falsely arresting plaintiff, defendants Town and Myers caused injuries and damages to plaintiff and are liable to him in an amount that would fairly compensate him for said injuries. SECOND CAUSE OF ACTION – EQUAL PROTECTION, PUBLIC ACCOMMODATIONS, NYS LAW 53. The allegations of paragraphs 1 through 50 are realleged as if fully set forth herein. 54. Defendants’ actions violated plaintiff’s right of non-discriminatory access to public buildings and public accommodations including governmental offices protected by Sections 40 and 40-c of the New York State Civil Rights Law (“Equal rights in places of public accommodation, resort or amusement” and “Discrimination” respectively), and Article I, Section 11 of the New York State Constitution (“Equal protection of the laws, discrimination in civil rights prohibited”) causing injuries and damages to plaintiff and they are liable to him in an amount that would fairly compensate him for said injuries. THIRD CAUSE OF ACTION – EQUAL PROTECTION, U.S. CONST. 55. The allegations of paragraphs 1 through 50 are realleged as if fully set forth herein. 56. Defendants’ actions violated plaintiff’s right of non-discriminatory access to public buildings and public accommodations including governmental offices protected by the equal protection clause of the 14th amendment to the US Constitution causing injuries and damages to plaintiff and, pursuant to 42 USC § 1983, they are liable to him in an amount that would fairly compensate him for said injuries. FOURTH CAUSE OF ACTION – FREE SPEECH, U.S. CONST. 57. The allegations of paragraphs 1 through 50 are realleged as if fully set forth herein. 58. Defendants violated plaintiff’s right to free speech under the First Amendment to the Unites States Constitution, causing injuries and damages to plaintiff and, pursuant to 42 USC §1983, are liable to him in an amount that would fairly compensate him for said injuries. FIFTH CAUSE OF ACTION – ART I, SECTION 8, NYS CONST. 59. The allegations of paragraphs 1 through 50 are realleged as if fully set forth herein. 60. Defendants violated plaintiff’s right to free speech under the Article I, Section 8 of the New York State Constitution, causing injuries and damages to plaintiff and are liable to him in an amount that would fairly compensate him for said injuries. SIXTH CAUSE OF ACTION – RIGHT TO TRAVEL, U.S. CONST. 61. The allegations of paragraphs 1 through 50 are realleged as if fully set forth herein. 62. Defendants violated plaintiff’s right to travel in and to places of public accommodation and governmental offices as protected by the US Constitution causing injuries and damages to plaintiff and, pursuant to 42 USC §1983, are liable to him in an amount that would fairly compensate him for said injuries. SEVENTH CAUSE OF ACTION – RIGHT TO TRAVEL, NYS CONST. 63. The allegations of paragraphs 1 through 50 are realleged as if fully set forth herein. 64. Defendants violated plaintiff’s right to travel in and to places of public accommodation and governmental offices as protected by the New York State Constitution causing injuries and damages to plaintiff and are liable to him in an amount that would fairly compensate him for said injuries. EIGHTH CAUSE OF ACTION – CIVIL BANISHMENT 65. The allegations of paragraphs 1 through 50 are realleged as if fully set forth herein. 66. Defendants’ actions constituted a Civil Banishment causing injuries and damages to plaintiff and they are liable to him in an amount that would fairly compensate him for said injuries. WHEREFORE, Plaintiff respectfully demands: 1. An award of damages, joint and severally, against the defendants in an amount that would fairly compensate plaintiff for his injuries, 2. A declaratory judgment that it is unlawful for individuals to be subjected to arrest due to the content of written information on their apparel which constitutes protected speech under the free speech protections of the US and NYS constitutions and appropriate injunctive relief, 3. A declaratory judgment that Crossgate Mall is a public forum for purposes of the free speech protections of the US and NYS constitutions and appropriate injunctive relief, 4. An award of attorneys’ fees pursuant to 42 USC 1988, 5. An award of the costs of this action, and 6. An Award of such other and different relief as to this court may seen just and reasonable. Plaintiff hereby demands a jury trial. Dated: May , 2004 _______________________ Mark S. Mishler, Esq. Walter, Thayer & Mishler, PC. Attorneys for Plaintiff As cooperating attorneys for the New York Civil Liberties Union Foundation) 756 Madison Avenue Albany, NY 12208 Arthur Eisenberg, Esq. New York Civil Liberties Union Foundation 125 Broad Street, 17th Floor New York, NY 10004 VERIFICATION STATE OF NEW YORK ) COUNTY OF ALBANY ) Stephen R. Downs, being duly sworn, deposes and says that he is the Plaintiff in the within action; that deponent has read the foregoing Complaint and knows the contents thereof; and that the same is true to the deponent’s own knowledge, except as to the matters therein stated to be alleged upon information and belief, and as to those matters deponents believes it to be true. ____________________ Stephen R. Downs Sworn to before me this ____ day of May, 2004 ____________________ Notary Public