An interesting DeShaney case out of New York. Plaintiff alleges she was watching (but not participating in) a pro-Palestine protest in a Jewish area of Brooklyn, then was accosted by counter-protesters while NYPD officers stood by. Complaint is here; the city filed a 12(b)(6) asserting that it has no obligation to protect, which allowed this site to print a "ha-ha, do you believe what the city is arguing" article.
Note a couple of things:
• The complaint pleads around DeShaney quite well. It alleges First Amendment claims (officers did not act in retaliation because they believed she was espousing pro-Palestine views) and due process claims grounded on state-created-danger, where their non-action sent a message of impunity (recall that the Second Circuit is most accepting of this "tacit approval" argument). While the city's "we have no duty to protect" argument caught the media attention, the plaintiff recognized and did not try to plead liability based purely on failure to protect.
• The case raises a unique First Amendment issue--can a plaintiff recover for a First Amendment violation based on government targeting what it erroneously believed was her speech. Her claim is that the officers did not act because they wrongly believed she was engaged in speech they did not like.
The reading mentions Heffernan v. City of Paterson, which found that a demoted employee could state a First Amendment claim based on his boss' erroneous believe that he had posted yard signs supporting a political candidate. The First Amendment focuses on the government motive (did it target speech) rather than the plaintiff's actual action. This claim would bring that argument out of the employment context.
• Of course, that should trigger thoughts of qualified immunity. Does Heffernan clearly establish that government violates the First Amendment whenever it retaliates against believed speech? Or is it limited to employment, such that the officers here were not on notice that failing to protect a person from a violent mob because of believed speech violates the First Amendment.
This class is everywhere.
