Arrest authority, as several decisions indicate, can be abused to disrupt the exercise of First Amendment speech and press rights. See, e.g., Lacey v. Maricopa County , 693 F. 3d 896, 907–910 (C.A.9 2012) (en banc) (newspaper publishers alleged they were arrested in nighttime raid after publishing story on law enforcement's investigation of the newspaper); Roper v. New York , 2017 WL 2483813, *1 (S.D.N.Y., June 7, 2017) (photographers documenting Black Lives Matter protest alleged they were arrested for standing in street and failing to use crosswalk; sidewalks and crosswalks were blocked by police); Morse v. San Francisco Bay Area Rapid Transit Dist. (BART) , 2014 WL 572352, *1–*7 (N.D. Cal., Feb. 11, 2014) (only journalist arrested at protest was journalist critical of Bay Area Rapid Transit Police).
See Roper v. City of New York, 2017 WL 2483813, at *5 (S.D.N.Y. June 7, 2017). Accordingly, plaintiff's failure to intervene claim fails as a matter of law.
But while “courts have understandably expressed [ ] skepticism about justifying custodial arrests undertaken for other reasons based on violations of traffic laws that likely are rarely the subject of arrests, ” Roper v. City of N.Y., No. 15-CV-8899 (PAE), 2017 WL 2483813, at *4 (S.D.N.Y. June 7, 2017), “the Supreme Court has made explicitly clear that courts may not ‘entertain Fourth Amendment challenges based on the actual motivations of individual officers, '” United States v. Dupree, No. 16-CR-84 (ARR), 2016 WL 10703796, at *3 n.2 (quoting Whren, 517 U.S. at 813), aff'd 767 F. App'x. 181 (2d Cir. 2019).
Because plaintiff has failed to allege any underlying constitutional violation, his claim for failure to intervene similarly fails. See Roper v. City of N.Y., 2017 WL 2483813, at *5 (S.D.N.Y. June 7, 2017) (dismissing derivative claims under Section 1983 for failure to intervene when plaintiff failed plausibly to allege a violation of any constitutional right). Accordingly, plaintiff's claims for failure to intervene and for supervisory liability must be dismissed.
However, pursuant to New York law, a traffic infraction is a "petty offense" and a police officer can arrest a person without a warrant for a "petty offense" if the officer has probable cause to believe the person committed the offense in the officer's presence. N.Y. Veh. & Traffic L. § 155 (definition of traffic infraction); N.Y. Crim. Proc. L. § 1.20(39) ("'Petty offense' means a violation or a traffic infraction."); N.Y. Crim. Proc. L. § 140.10(1)-(2) (an officer is authorized to arrest a person if the officer has probable cause to believe the person committed a petty offense in the officer's presence); Roper v. City of New York, No. 15-cv-8899, 2017 WL 2483813, at *4 (S.D.N.Y. June 7, 2017); see also Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001) ("If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender."). Therefore, Officer Cabrera had probable cause to arrest Mr. Vyrkin for unlawfully reversing his vehicle.
Critically, "[a] violation of this provision does not require the presence of traffic or an intent to obstruct it, but rather 'permit[s] law enforcement to restrict pedestrian traffic to sidewalks even where they are simultaneously diverting vehicular traffic.'" Abujayyab v. City of New York, No. 15 CIV. 10080 (NRB), 2018 WL 3978122, at *10 (S.D.N.Y. Aug. 20, 2018) (quoting Roper v. City of New York, No. 15-CV-8899 (PAE), 2017 WL 2483813, at *4 (S.D.N.Y. June 7, 2017)). And although arrests for jaywalking may be rare as an empirical matter, they are permitted under New York law, see id. (citing authorities); see also N.Y. Veh. & Traf. Law § 155 ("For purposes of arrest without a warrant, . . . a traffic infraction shall be deemed an offense."),
Plaintiff's traffic infractions of driving through a red light and driving with an inoperable brake light constitute traffic offenses that can serve as the basis for a lawful arrest. See United States v. Scopo, 19 F.3d 777, 785 (2d Cir. 1994) ("Under New York State law, it is clear that a traffic offense can be a basis for an arrest."); see also Roper v. City of New York, No. 15 Civ. 8899 (PAE), 2017 WL 2483813, at *4 (S.D.N.Y. June 7, 2017) ("Under New York law, a traffic infraction is defined as a 'petty offense,' . . . and a police officer may arrest a person for a 'petty offense' without a warrant when the officer has probable cause to believe that the person has committed the offense[.]") (citations omitted).
None of that, of course, is to suggest that the decision to arrest was a sensible one. Cf. Roper v. City of New York, No. 15-CV-8899 (PAE), 2017 WL 2483813, at *4 (S.D.N.Y. June 7, 2017) ("[C]ourts have understandably expressed some skepticism about justifying custodial arrests undertaken for other reasons based on violations of traffic laws that likely are rarely the subject of arrests."); Gonzalez v. City of New York, No. 14-CV-7721 (LGS), 2017 WL 149985, at *2 (S.D.N.Y. Jan. 13, 2017) ("The constitutionality of subjecting someone who steps off the sidewalk and walks a few steps in the roadway to a full-blown custodial arrest appears dubious, but binding precedent dictates the outcome in this case."). The Supreme Court, however, has made clear that "gratuitous humiliations imposed by a police officer who was (at best) exercising extremely poor judgment" do not necessarily violate the Constitution.
(citing Jaegly, 439 F.3d at 154 (2d Cir. 2006)). Although traffic infractions are not crimes under New York Law, they are "deemed an offense" for "purposes of arrest without a warrant" under New York Criminal Procedure Law § 140. N.Y. Veh. & Traf. Law § 155; see Roper v. City of New York, No. 15-CV-8899 (PAE), 2017 WL 2483813 (S.D.N.Y. June 7, 2017). While traffic infractions are minor offenses, probable cause that a traffic infraction has been committed will satisfy Fourth Amendment requirements for a custodial arrest.
A violation of this provision does not require the presence of traffic or an intent to obstruct it, but rather "permit[s] law enforcement to restrict pedestrian traffic to sidewalks even where they are simultaneously diverting vehicular traffic." Roper v.City of New York, No. 15 Civ. 8899 (PAE), 2017 WL 2483813 (S.D.N.Y. June 7, 2017). And under New York law, the police may legally arrest an individual for a petty offense, including a traffic violation.