Opinion
20Civ.263 (AT)
07-25-2024
ADAMA BAH, Plaintiff, v. CITY OF NEW YORK; Police Officer NEVA BECERRIL; Sergeant MARILYN AGUIRRE; Lieutenant CHARMAINE PILGRIM, Defendants.
ORDER
ANALISA TORRES, United States District Judge
Plaintiff, Adama Bah, a practicing Muslim woman, brings this action against Defendants, the City of New York (the “City”), Police Officer Neva Becerril, Sergeant Marilyn Aguirre, and Lieutenant Charmaine Pilgrim, alleging that Defendants violated her rights when she was required to remove her hijab for an arrest photo. Bah initially asserted claims against Defendants pursuant to the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc et seq:. the Free Exercise Clause of the U.S. Constitution (“U.S. Free Exercise Clause”), U.S. Const, amend. I; and the Free Exercise Clause of the New York State Constitution (‘N.Y. Free Exercise Clause”), N.Y. Const, art. 1, § 3. See Second Am. Compl. (“SAC”), ECF No. 33. By order dated March 30, 2022 (the “Order”), the Court dismissed Bah's claims against Aguirre and Pilgrim under RLUIPA and the U.S. Free Exercise Clause, but permitted her claim under the N.Y. Free Exercise Clause to proceed. See Order at 10, ECF No. 49.
Plaintiff voluntarily dismissed her claims against Becerril. Order at 1 n.2.
Aguirre and Pilgrim now move for summary judgment on the remaining claim. Def. Mot., ECF No. 86. For the reasons stated below, Aguirre and Pilgrim's motion is GRANTED.
In a related case, the Court held that the Constitution does not permit the New York City Police Department to require an observant Muslim woman to remove her hijab for an arrest photo. Clark v. City of New York, 560 F.Supp.3d 732, 734 (S.D.N.Y. 2021). The instant order narrowly addresses Pilgrim and Aguirre's liability as individual officers, but does not address the liability of the City, which did not move for summary judgment.
BACKGROUND
I. Factual Background
A. Interim Order 29
New York City Police Department (“NYPD”) policy at the time of Bah's arrest required arrestees to be photographed without any head coverings. Def. 56.1 ¶ 9, ECF No. 93. This requirement arose from NYPD Interim Order 29, issued on March 2, 2015, which amended the NYPD Patrol Guide sections on processing arrests and photographing arrestees. See id. ¶ 10; Interim Order 29, ECF No. 87-4. Interim Order 29 states that if an arrestee refuses to remove his or her religious head covering, the arresting officer shall take a digital photograph of the arrestee wearing their religious head covering. Interim Order 29 at 2. The officer shall then “inform the arrestee that the Department is required to take an official Department photograph at the borough Court Section in which the arrestee[']s head covering must be removed.” Id. If the arrestee still refuses, the officer shall inform the arrestee that they will be transported to the Mass. Arrest Processing Center (the “MAPC”), located at 1 Police Plaza, “where their head gear will be removed and an official Department photograph will be taken in privacy.” Id. Finally, the officer shall inform the arrestee that this process may delay their arrest processing. Id.
Pursuant to a November 5, 2020 stipulation in the related case, the City of New York changed the NYPD Patrol Guide to no longer require an “uncovered photograph” unless there was reasonable suspicion that (1) the head covering obscures a “distinguishing feature” that is “of investigative value to the current investigation or arrest,” or that (2) “the arrestee committed the crime outside their residence while not wearing a head covering.” See Stipulation ¶ 1 and Ex. A at 3, Clark v. City of New York, No. 18 Civ. 2334 (S.D.N.Y. Nov. 5, 2020), ECF No. 153.
The City designated Lieutenant Christopher Czark to testify about NYPD policy regarding religious head coverings under Interim Order 29. Czark Dep. at 9:14-10:22, ECF No. 94-5. According to Czark, the NYPD will present the arrestee for arraignment before a judge only after an official department photograph is taken. Id. at 42:19-21. Czark testified that, if an arrestee still refuses to take the official department photograph at MAPC, officers can tell the arrestee that the NYPD may request a “force order from a judge” that would mandate a photograph without a head covering. Id. at 42:15-17.
B. Bah's Post-Arrest Photographs
On August 6, 2019, while driving in Manhattan, Bah was arrested by two non-party police officers. Def. 56.1 ¶ 1; see SAC ¶ 20. Bah was wearing a hijab at the time. Def. 56.1 ¶ 2. A hijab is a “head scarf for Muslim women.” Bah Dep. at 20:8, ECF No. 94-3.
The arresting officers transported Bah to the 23rd Precinct, where a non-party arresting officer took her photograph. Def. 56.1 ¶¶ 3-4. She did not remove her hijab. Id. ¶ 5.
Bah was then taken to “Central Booking,” located at 100 Centre Street, id. ¶¶ 6-8, where Bah refused to remove her hijab because “she believed that doing so would violate her religious beliefs,” id. ¶ 11. Aguirre was the only female officer on duty at Central Booking that day. Id. ¶ 12.
The parties dispute whether Bah was transported from the 23rd Precinct directly to Central Booking. Bah claims that she was. Def. 56.1 ¶¶ 7-8. Defendants state that Bah was first transported to MAPC, where a non-party police officer took another photograph of Bah with her hijab on, and that she was then taken to Central Booking. Id. ¶ 7. This dispute is not material.
From there, Bah was transported to the MAPC, where Aguirre told Bah that she had to take off her hijab to be photographed. Id. ¶¶ 16-18. Aguirre handed Bah a copy of a section of the NYPD Patrol Guide to “reassure [Bah] that [Aguirre] was being truthful when [she] told [Bah] that an NYPD policy required her to remove her hijab.” Id. ¶¶ 20-21. Bah testified that Aguirre was “very kind and gentle.” Bah Dep. at 151:22-23. Bah also testified that Aguirre said, “[Y]ou have to take the picture or they will ask me to forcefully remove it.” Bah 50-h Tr. at 57:9-11, ECF No. 94-2. Bah would not agree to take off her hijab, but she and Aguirre “compromised.” Aguirre Dep. at 52:8-23, ECF No. 94-4. Bah pushed her hijab back to reveal her ears and part of her neck, and Aguirre took the three required booking photographs. Id. at 52:8-23, 54:24-55:4; Def. 56.1 ¶ 23; Bah Dep. at 154:22-155:13. When Aguirre took the “compromise” photographs, she believed that they would satisfy NYPD requirements. Aguirre Dep. at 52:24-53:15. Bah was then returned to Central Booking. Aguirre Dep. at 54:14-18.
Pilgrim, Aguirre's supervisor, examined the photographs and determined that they did not comply with NYPD policy. Def. 56.1 ¶¶ 26-27. In a private room in Central Booking, Pilgrim told Bah that NYPD policy required that Bah take off her hijab in its entirety. Id. ¶ 28; see Pilgrim Dep. at 44:13-45:2, ECF No. 87-3. Pilgrim said that Bah had to be properly photographed before she was arraigned. Id. ¶ 31. According to Bah, Pilgrim said that, if Bah refused, she “could not see a judge” and “would have to go to jail.” Bah Dep. at 157:17-21. Bah “cried” and explained her “religious belief” to Pilgrim. Id. at 157:22-24. Pilgrim responded that “this is the policy.” Id. at 157:25-158:2. Pilgrim spoke calmly to Bah. Def. 56.1 ¶ 29; Bah Dep. at 150:23-151:1.
Bah “ultimately relented under protest.” Def. 56.1 ¶ 32. She was taken to a photo room within Central Booking in which she removed her hijab only when Pilgrim was ready to take the photographs. Id. ¶¶ 33, 37. Pilgrim took photographs of Bah without her hijab. Id. ¶ 36; see Bah Dep. at 160:14-161:5. When Pilgrim said that Bah was almost done, Bah felt relieved. Def. 56.1 ¶¶ 38-39. Pilgrim testified that she took the photographs of Bah without her hijab because of NYPD policy, not because she personally wanted to. Id. ¶ 40. Pilgrim permitted Bah to put her hijab back on before she left the photo room. Id. ¶ 41.
No male officers were inside the room when Bah's photographs were taken. Id. ¶ 35. Bah claims, however, that “a male officer was within eyesight of her, standing right outside the open door.” Id. ¶ 35; see Bah Dep. at 156:22-157:6. But, the male officer had his back to her. Bah Dep. at 157:9-10. The photograph of Bah without a hijab was uploaded to an NYPD database. Def. 56.1 ¶ 35; Aguirre Dep. at 70:4-24.
Bah was then taken to appear before a judge for arraignment and was subsequently released. Bah Dep. at 58:9-12, 162:21-163:5. Over the next two days, when Bah told her parents and sister that she was required to “take off her head scarf” during her arrest, she “broke into tears and couldn't continue the conversation.” Id. at 57:2-4, 58:4-12.
II. Procedural History
On January 10, 2020, Plaintiff filed a complaint alleging that Defendants' conduct violated her rights under RLUIPA, the U.S. Free Exercise Clause, and the N.Y. Free Exercise Clause. Compl., ECF No. 1. Plaintiff amended her complaint twice, filing her second amended complaint on November 2, 2020. See SAC.
Aguirre and Pilgrim moved to dismiss the claims against them, arguing that Bah's RLUIPA claims could not be maintained against them as individuals and that qualified immunity barred the Free Exercise Clause claims under both the United States and New York constitutions. See ECF No. 44. In the Order, the Court agreed that the RLUIPA claims should be dismissed as they were duplicative of Bah's claims against the City and that qualified immunity barred the U.S. Free Exercise Clause claim. See Order at 4-9. However, the Court held that Aguirre and Pilgrim had not demonstrated-at the pleadings stage-that they were entitled to qualified immunity on the N.Y. Free Exercise Clause claim. See Order at 9-10.
By motion dated September 11, 2023, Aguirre and Pilgrim moved for summary judgment on the N.Y. Free Exercise Clause claim. Def. Mot. The City has neither moved to dismiss nor moved for summary judgment on any of Bah's claims against it. Def. Reply at 6, ECF No. 97; see Clark v. City of New York, 560 F.Supp.3d 732 (S.D.N.Y. 2021) (denying the City's motion to dismiss RLUIPA, U.S. Free Exercise Clause, and N.Y. Free Exercise Clause claims).
DISCUSSION
Under New York law, state and city officials are entitled to qualified immunity “unless th[eir] actions are taken in bad faith or without a reasonable basis.” Jones v. Parmley, 465 F.3d 46, 63 (2d Cir. 2006); accord Pietra v. State, 71 N.Y.2d 792, 798 (1988). “[T]he New York standard for entitlement to qualified immunity has both objective and subjective components.” Lore v. City of Syracuse, 670 F.3d 127, 166 (2d Cir. 2012).
The “reasonableness standard”-the objective component-“is the same standard as that applied in federal qualified immunity analysis.” Mesa v. City of New York, No. 09 Civ. 10464, 2013 WL 31002, at *12 (S.D.N.Y. Jan. 3, 2013); accord Graham v. City of New York, 128 F.Supp.3d 681, 696 (E.D.N.Y. 2015). The Court has already granted Aguirre and Pilgrim qualified immunity under federal law, and their actions are not objectively unreasonable under state law. Order at 9; see Triolo v. Nassau County, 24 F.4th 98, 109 (2d Cir. 2022) (articulating the New York state standard for objective reasonableness).
However, even if the action is objectively reasonable, qualified immunity can still be denied if there is “evidence of bad faith or malice on the part of the actor.” Golio v. City of White Plains, 459 F.Supp.2d 259, 266 (S.D.N.Y. 2006); see Norton v. Town of Islip, No. 04 Civ. 3079, 2013 WL 84896, at *5 (E.D.N.Y. Jan. 7, 2013) (“[O]bjective reasonableness does not foreclose a finding of bad faith.”). To show this subjective element, there must be some evidence of “ill-will, spite, or other bad faith” in the officer's actions. Triolo, 24 F.4th at 109; see United States v. Bove, 888 F.3d 606, 608 (2d Cir. 2018) (“An act is in ‘bad faith' if it is intentionally deceptive or dishonest.”).
Bah contends that Aguirre acted in bad faith because, according to Bah, Aguirre violated NYPD policy by telling Bah that “they will ask me to forcefully remove it.” Bah 50-h Tr. at 57:9-11; see Pl. Opp. at 9, ECF No. 92. The Court disagrees. First, Aguirre did not violate NYPD policy. The policy at the time required officers to “inform the arrestee that the Department is required to take an official Department photograph . . . in which the arrestee[']s head covering must be removed.” Interim Order 29 at 2. The policy also required the officers to inform the arrestee that they would be transported to MAPC “where their head gear will be removed.” Id. And, Czark, who the City designated to testify about NYPD policy, stated that officers could inform the arrestee that the NYPD could obtain a force order to remove the head covering. Czark Dep. at 42:15-17. Aguirre's actions were, therefore, consistent with NYPD policy. Second, Aguirre did not apply the policy in a fashion suggesting bad faith. Bah testified that Aguirre was “kind” when talking with her. Bah Dep. at 151:22-23. And, Aguirre, rather than forcefully removing Bah's hijab, compromised, taking a picture with Bah's hijab partially uncovered in an effort to accommodate her religious beliefs. Aguirre Dep. at 52:24-53:15.
As to Pilgrim, Bah argues that Pilgrim acted in bad faith for three reasons. First, she points to Pilgrim's statement that “threatened [] Bah with ‘going to jail.'” Pl. Opp. at 9 (cleaned up). As with Aguirre's statement, Pilgrim's statement, which informed Bah that she would not see a judge until she took off her hijab, was consistent with NYPD policy and delivered calmly. Second, Bah claims that Pilgrim took the photograph with a male officer present. The record belies this argument: the male officer was not in the room, and Bah testified that his back was to her. Bah Dep. at 156:22-157:10. Third, Bah contends that Pilgrim violated NYPD policy by taking the pictures at Central Booking, rather than MAPC. The City's policy permitted photographs to be taken at non-MAPC locations, such as the borough court section. Interim Order 29 at 2. Moreover, although Pilgrim took the photographs at Central Booking, she spoke with Bah in private and ensured that the room was cleared before the photographs were taken. Pilgrim Dep. at 44:13-19, 64:4-23. Pilgrim also testified-and Bah does not dispute-that Pilgrim took the photographs of Bah without her hijab solely because of NYPD policy, not because she personally wanted to. Def. 56.1 ¶ 40.
In sum, Aguirre and Pilgrim followed NYPD policy at the time, they did not apply the policy in a harsh or aberrational way, and the record indicates that their actions were motivated by following the policy, rather than by personal animus toward Bah. Because there is no evidence that suggests that Aguirre and Pilgrim acted out of spite, ill will, or other bad faith, they are entitled to qualified immunity under New York law.
Because the officers are entitled to qualified immunity, the Court shall not reach the question of whether Plaintiff can assert an implied private right of action under the N.Y. Free Exercise Clause. See Def. Mem. at 11-13.
CONCLUSION
For the foregoing reasons, Aguirre and Pilgrim's motion for summary judgment on Bah's N.Y. Free Exercise Clause claim is GRANTED. The Clerk of Court is directed to terminate Aguirre, Pilgrim, and Becerril from the docket, and to terminate the motion at ECF No. 86.
The remaining parties-Bah and the City-are directed to schedule a settlement conference before the Honorable Katharine H. Parker, to whom this matter is referred. By September 1, 2024, both parties shall submit a status update. The Court shall issue a pretrial order in due course.
SO ORDERED.