Nicholas v. Bratton (376 F. Supp. 3d 232, 2019)

J. PAUL OETKEN, United States District Judge

Plaintiff Jason B. Nicholas brings this civil rights action against Defendants the City of New York ("the City"), William Bratton, Stephen Davis, Eugene Whyte, and Michael DeBonis pursuant to 42 U.S.C. Section 1983 (" Section 1983"), alleging violations of his First, Fourth and Fourteenth Amendment rights. (Dkt. No. 126.) Before the Court now are cross-motions for summary judgment filed by Plaintiff and Defendants Davis and DeBonis (collectively, "Individual Defendants") , as well as Defendants' motion to preclude the testimony and opinions of Plaintiff's expert witness Mickey Osterreicher from summary judgment and trial. (Dkt. Nos. 170, 180, 185.) For the reasons that follow, Plaintiff's motion for summary judgment is denied, the Individual Defendants' motion for summary judgment is granted in part and denied in part, and Defendants' motion to preclude Plaintiff's expert testimony is denied.

I. Factual Background

Familiarity with the background of this dispute is presumed based on this Court's prior opinions on Plaintiff's motion for a preliminary injunction, see Nicholas v. Bratton , No. 15 Civ. 9592, 2016 WL 3093997 (S.D.N.Y. June 1, 2016), Defendants' motions to dismiss, see Nicholas v. City of N.Y. , No. 15 Civ. 9592, 2017 WL 766905 (S.D.N.Y. Feb. 27, 2017) ; Nicholas v. Bratton , No. 15 Civ. 9592, 2018 WL 1054567 (Feb. 23, 2018), and Plaintiff's motion for leave to file a Second Amended Complaint, see Nicholas v. City of N.Y. , No. 15 Civ. 9592, 2017 WL 2537293 (S.D.N.Y. June 12, 2017). The additional facts detailed below are drawn primarily from the parties' Local Rule 56.1 statements (see Dkt. Nos. 193, 202), and are not subject to genuine dispute unless otherwise noted.

A. The Parties

Plaintiff Jason B. Nicholas is a self-described professional photojournalist who has done freelance work for various New York City-based media outlets since at least 2006. (Dkt. No. 193 ¶ 1.) In 2007, Nicholas first applied for and obtained a New York City Police Department ("NYPD")-issued press credential, and he has successfully applied to renew his credential at every two-year interval thereafter. (Dkt. No. 193 ¶ 4.) With the primary exception of the NYPD's eight-month confiscation of his credential following the events at issue in this suit, Nicholas has been in possession of an NYPD press credential continuously since 2007. (Dkt. No. 193 ¶ 4; Dkt. No. 202 ¶ 81.)

During the times relevant to this action, Defendant Stephen Davis was NYPD's Deputy Commissioner of Public Information ("DCPI") (Dkt. No. 202 ¶ 2), and Defendant Michael DeBonis was a detective assigned to NYPD's DCPI Office (Dkt. No. 202 ¶ 1). The DCPI Office is the office that was responsible for the review and approval of Nicholas's applications for an NYPD-issued press credential. (Dkt. No. 193 ¶ 4; Dkt. No. 202 ¶ 4.)

Nicholas also asserts claims against three other Defendants: the City of New York, Eugene Whyte, and William Bratton. (Dkt. No. 126 ¶¶ 12, 14, 16, 164.) The Court previously bifurcated discovery with respect to Nicholas's Monell claims against the City (Dkt. No. 67), and none of these three parties are presently moving for summary judgment with respect to Nicholas's live claims against them. These three Defendants have, however, joined in the motion to preclude the testimony and opinions of Plaintiff's expert from summary judgment and at trial. (Dkt. No. 170.)

B. Issuance and Use of NYPD Press Credentials

The rules governing the issuance and use of NYPD press credentials are set forth in Title 38, Chapter 11 of the Rules of the City of New York. See 38 RCNY § 11-01 et seq. These rules provide that a

bearer of a Press Card is entitled to (i) subject to safety and evidence preservation concerns, cross police, fire lines or other restrictions, limitations or barriers established by the City of New York at emergency, spot, or breaking news events and public events of a non-emergency nature where police, fire lines or other restrictions, limitations or barriers established by the City of New York have been set up for security or crowd control purposes, within the City of New York; and (ii) subject to space limitations, attend events sponsored by the City of New York which are open to members of the press.

Id. § 11-01(a).

Subsections (b) and (c) of Section 11-01 establish the eligibility criteria for the issuance of NYPD press credentials. Id. §§ 11-01(b)-(c). In relevant part, these subsections provide that in order to obtain an NYPD press credential, one must be a "member of the press" who has previously attended and reported from at least six City-sponsored events or New York City "emergency, spot or breaking news events and/or public events of a non-emergency nature" within the twenty-four month period preceding the application. Id. Defendant DeBonis testified at his deposition that during his four years working as a DCPI official tasked with reviewing applications for press credentials, he would issue a credential to an applicant as a matter of course upon confirming that the applicant met the eligibility criteria set out in Subsections (b) and (c) of Section 11-01. (Dkt. No. 193 ¶ 133; Dkt. No. 201-4 at 98:13-103:16; see also id. at 103:2-5 ("The criteria set forth in the rules is the qualifying material to obtain a press card. If someone obtains or meets that criteria qualifications [sic], they're granted a press card....").) The back of an NYPD-issued press credential provides that it "is the property of the New York City Police Department," and that "[i]t may be taken away by competent authority at any time." (Dkt. No. 202 ¶ 7; see also Dkt. No. 183-2.)

Both journalists and City officials have testified that bearers of NYPD press credentials are generally permitted to cross police and fire lines that bar public access to emergency or restricted areas unless they are given express orders not to do so. (Dkt. No. 193 ¶ 9.) The Rules of the City of New York require that "[w]hen the bearer's ability to cross police, fire lines or other restrictions, limitations or barriers established by the City of New York or attend events sponsored by the City of New York is denied, such denial must come from a supervising officer or a member of [NYPD's DCPI Office]." 38 RCNY § 11-01(a). NYPD has also required recipients of press credentials to sign a separate acknowledgment that they understand that "access pursuant to the Press Card does not include access to interior crime scenes or areas frozen for security purposes." (Dkt. No. 193 ¶ 9 (quoting Dkt. No. 183-1 at 6).)

With respect to access to non-emergency newsworthy events such as parades and press conferences, different hosting organizations have adopted varying policies with respect to requiring a press pass. (Dkt. No. 193 ¶ 8.) But it is undisputed that certain organizations, including, for example, NYPD itself, use possession of an NYPD press credential as a method for regulating access to their events. (Id. ; see also Dkt. No. 188-10 at 125; Dkt. No. 188-13 at 100; Dkt. No. 188-21 at 2 (City Law Department press release recognizing that "[m]any non-City entities also rely on the City press card to distinguish who is a member of the media").)

More generally, the parties dispute the extent to which possession of an NYPD press credential is, as a practical matter, a necessary prerequisite to obtaining work as a photojournalist in New York City. (See, e.g. , Dkt. No. 193 ¶¶ 136-47.)

C. Procedures Governing the Suspension or Revocation of NYPD Press Credentials

Since 2010, Chapter 11 of Title 38 of the Rules of the City of New York has provided a hearing procedure for challenges to any "suspension" or "revocation" of an NYPD press credential. (Dkt. No. 193 ¶ 159.) Specifically, Subsection (b) of Section 11-11 provides that where NYPD-issued "press credentials are summarily suspended, a hearing may be requested by the holder of the press credential and such hearing shall be provided no later than five (5) business days from the request." 38 RCNY § 11-11(b). Subsection (c) of Section 11-11 provides that where NYPD seeks a "revocation" of an NYPD-issued press credential, "a hearing shall be provided before such revocation shall take effect. However, if there has been a summary suspension of the press credential which is the subject of the revocation, the hearing for the suspension can also serve as the hearing required herein." Id. at § 11-11(c). The City is required to issue a written decision following any such hearing in the event that the City concludes that the suspension or revocation was justified, and it must do so within forty-five days of the hearing's conclusion. Id. at § 11-11(e). Journalists have a right to counsel at these "Section 11-11 hearings," see id. at § 11-11(d), as well as the right to appeal adverse decisions to NYPD's DCPI, id. at § 11-12.

Neither the City nor NYPD has ever enacted a formal policy governing when suspensions of NYPD-issued press credentials may be appropriate. (See Dkt. No. 43 at 28 (counsel for Defendants explaining that "there's nothing in the rules about a written standard for what's necessary to take a summary suspension").) At his deposition, Detective DeBonis explained that incidents resulting in the seizure or suspension of an NYPD-issued press credential "usually [involved] an interaction where ..., for example, if [a credential holder is] in an area where they're not supposed to be[, they are warned] 'Hey, you have to be over there,' [and] then something else leads up to the removal of the press card." (Dkt. No. 201-4 at 180.)

When NYPD has spoken on the issue in its training materials and as part of its guidance to its patrol officers, NYPD has counseled its officers to take steps to avoid seizing or confiscating press credentials. For example, DCPI's training materials for NYPD officers instruct officers to identify press-credential holders at the scenes of breaking news events and to notify DCPI as to their presence, but "not [to] remove [their] press credentials." (Dkt. No. 188-84 at 11.) And an April 2016 bulletin from NYPD's Office of the Deputy Commissioner for Legal Matters instructs NYPD officers not to interfere with people documenting police activities unless or until there is an "actual interference with the performance of an official police function," such as an "intru[sion] into the 'zone of safety' established by [an] officer in the performance of his or her duties." (Dkt. No. 188-89 at 3 (emphasis in original).) Even in cases involving such interferences or intrusions, the bulletin instructs NYPD officers to respond by first "issu[ing] a warning." (Dkt. No. 188-89 at 4.) The bulletin provides a non-exclusive list of "[a]cceptable warnings" for cases of actual interference or intrusions into an officer's zone of safety, a list that includes "Please step back!" and "Please get on the sidewalk!" (Id. )

In addition to the October 30, 2015 incident at issue in this suit and discussed further below, NYPD's DCPI Office has identified exactly seven instances of NYPD's having "suspended" a journalist's press credential during the period spanning August 19, 2010 to April 12, 2018. (Dkt. No. 193 ¶ 154; Dkt. No. 188-86.) All seven of these suspensions involved either: (1) the arrest of the credential holder or (2) allegations by NYPD of the credential holder's repeated refusal to comply with express directives from City officials. (Dkt. No. 193 ¶ 155; Dkt. No. 188-82.) NYPD did not provide written notice to any of these credential holders regarding the status of their press credentials or the remedial measures available to them following the suspensions of their credentials. (Dkt. No. 188-86.)

During the period spanning August 19, 2010 to April 12, 2018, NYPD never once "revoked" a press credential. (Dkt. No. 193 ¶ 153.)

Prior to Nicholas's Section 11-11 hearing described further below, NYPD had never conducted such a hearing. (Dkt. No. 193 ¶ 160.) Despite having never held any formal Section 11-11 hearings before Nicholas's, NYPD had in a number of previous cases returned seized press credentials or reinstated suspended press credentials to credential holders, at times doing so immediately after the seizure of a credential, and at other times doing so following informal meetings between the credential holder and officers with NYPD's DCPI Office. (Dkt. No. 193 ¶¶ 152, 160.)

D. The Events of October 30, 2015

The pending motions for summary judgment largely concern a series of events stemming from an October 30, 2015 partial building collapse on West 38th Street in midtown Manhattan. (See Dkt. No. 193 ¶ 11; Dkt. No. 202 ¶ 8; Dkt. No. 188-23.) While the parties' dispute will bring us far afield from the collapse itself, the gravity of the event that precipitated the instant dispute should not be lost in the fray. Two constructions workers were caught inside the collapsed building-one of the trapped workers was killed by the collapse instantaneously, and the other worker, who was eventually rescued alive, spent hours trapped under thousands of pounds of debris. (Id. ) The rescue of the second trapped worker proved to be a prolonged and complex process: As will be explored more fully below, testimony from eyewitnesses to the rescue and video evidence of the scene reveal that dozens of City vehicles and even more personnel from at least four different City agencies participated in the hours-long operation. (Dkt. No. 202 ¶¶ 10, 14, 18; Dkt. No. 182-5 at 80:6-7; see also generally Dkt. No. 188-95 ("Ramos Video").) In addition to the core rescue operation, City personnel also set up various workstations on the West 38th Street block, including a workshop to cut timber to shore up the collapsed building (Dkt.

No. 202 ¶ 16) and a "command center" (Dkt. No. 202 ¶ 18; Dkt. No. 182-2 at 295:9-10).

The scene of the collapse and the rescue operation quickly drew substantial public and media attention. The collapse followed closely on the heels of a New York Daily News report on a purported spike in construction accident fatalities in New York City. (Dkt. No. 193 ¶ 12.) As emails exchanged among City public relations officials soon after the collapse reveal, the City was aware that this collapse "could feed [the] Daily News story," and the City devised a strategy for disseminating information about the incident as circumstances were unfolding on the ground. (Dkt. No. 188-24 ("We are NOT stating patient is pinned/trapped - only stating patient is serious and still onscene.").) Meanwhile, some dozens of members of the press flocked to the scene to document the rescue. (Dkt. No. 193 ¶ 30 (witness describing seeing 15 to 25 members of the press in an NYPD-created "press pen"); ¶ 33 (witnesses identifying at least two other journalists taking photographs from a restaurant close to the scene); ¶ 39 (witnesses and photos identifying at least six other City-employed "press personnel" on the scene).) Among these members of the press was Nicholas, who was dispatched to the scene by the Daily News. (Dkt. No. 193 ¶ 14.)

Nicholas testified at his deposition that upon arriving at the site of the building collapse, he observed no indications that the scene was closed to the public or the press (other than to vehicular traffic). (Dkt. No. 193 ¶ 16.) Instead, Nicholas went straight up to the collapsed building with his NYPD press credential around his neck, and he took several photographs of the ongoing rescue from right in front of the building. (Dkt. No. 193 ¶¶ 15, 18.) According to Nicholas, at first no police officers attempted to stop him (or another photographer on the scene) from approaching the building or from taking such pictures. (Dkt. No. 193 ¶¶ 16, 18.) Nicholas recalled that eventually, an unidentified individual asked Nicholas to move, and to avoid a confrontation, Nicholas went inside a store adjacent to the collapsed building. (Dkt. No. 193 ¶ 19.) Nicholas remained in that store for approximately one and a half hours, photographing the scene from the store's window. (Dkt. No. 193 ¶ 20.) He twice temporarily exited the store during this period to observe the rescue efforts directly from the street before returning to the inside of the store shortly after doing so; according to Nicholas, none of the NYPD or New York City Fire Department ("FDNY") officers who walked by him during these two forays outside of the store asked him to leave the block. (Dkt. No. 193 ¶ 22.) While photographing the rescue operation from inside the store, Nicholas allegedly also saw a number of City employees photographing the scene directly from the street. (Dkt. No. 193 ¶ 21.)

Meanwhile, Individual Defendants DCPI Davis and Detective DeBonis also arrived at the scene of the building collapse sometime during the rescue operation. (Dkt. No. 202 ¶ 12.) Their recollections of the scene differ somewhat from Nicholas's. According to Davis and DeBonis, upon arriving at the scene of the collapse they found that NYPD had already established what they describe as a "frozen zone" limiting public access to the collapsed building. (Dkt. No. 202 ¶ 19.) DeBonis and Davis understood that NYPD had established this frozen zone to ensure that the rescue operation would proceed unencumbered. (Id. ) DeBonis and Davis testified that they played no role in setting up this frozen zone, and that the frozen zone they found encompassed the entirety of the collapsed building's block, excluding interiors of the block's stores and other buildings. (Dkt. No. 202 ¶¶ 21-22.) According to DeBonis and Davis, the extent of the frozen zone was demarcated by a police line blocking pedestrian access to the building from either end of West 38th Street, and because of the frozen zone, no pedestrians were permitted to approach the emergency scene unless escorted by law enforcement officers. (Dkt. No. 202 ¶¶ 23-24.)

Nicholas disputes a number of aspects of Davis and DeBonis's account. As an initial matter, Nicholas disputes Davis and DeBonis's asserted definition of "frozen zone." (Dkt. No. 202 ¶ 20.) DeBonis defines "frozen zone" as an "area[ ] established by NYPD competent authority where there is an ongoing emergency response and the safety of certain persons and/or the public, or the preservation of evidence, would be compromised" by open public access. (Id. ; see also Dkt. No. 183 ¶ 8.) According to DeBonis, "[m]edia personnel and members of the public are not allowed in 'frozen zones.' " (Id. ) In disputing this definition, Nicholas cites deposition testimony from numerous New York City-based journalists describing their experiences with NYPD's allegedly inconsistent, vague, or arbitrary standards for establishing frozen zones. (Dkt. No. 202 ¶ 20.) No party identifies any New York City or NYPD rules, regulations, or policies providing a governing definition or standard for the establishment of "frozen zones." There are, however, references to "frozen" areas in some official NYPD documents, including, for example, the acknowledgements that NYPD requires recipients of NYPD press credentials to sign. (See Dkt. No. 183-1 at 6 (providing that "access pursuant to [a] Press Card [d]oes not include access to ... areas frozen for security purposes"); see also Dkt. No. 188-87 at 3 (NYPD Patrol Guide provision permitting press-access restrictions to "areas frozen for security reasons").)

Nicholas also disputes whether there was ever in fact any sort of "frozen zone" of the type described by Davis and DeBonis on West 38th Street in the area surrounding the October 30, 2015 building collapse. (Dkt. No. 202 ¶ 20.) To counter the testimony of Defendants DeBonis and Davis that such a frozen zone actually existed, he cites witness testimony, photos, and videos evidencing the presence of a number of civilians, other journalists, and non-emergency City personnel inside the purported frozen zone. (Dkt. No. 193 ¶¶ 33-39; Dkt. No. 202 ¶ 20.) Nicholas also testified that upon arriving at the scene, it was impossible for him to tell that the area around the building collapse had been classified as a frozen zone due to the absence of any warning signs or demarcations to that effect. (Dkt. No. 193 ¶ 27; Dkt. No. 202 ¶ 37.) Finally, Nicholas cites witness testimony describing changes to the boundaries of the frozen zone to show that "[w]hile there may have been some initial restrictions on pedestrians accessing the so-called 'frozen zone,' these restrictions were lessened as the day went on, and pedestrians were allowed to go into the frozen zone to patronize stores before the victim was removed." (Dkt. No. 193 ¶ 35.)

Photo and video evidence helps clarify the parties' and other witnesses' conflicting recollections of the scene. Perhaps most thorough is an approximately fifty-minute video Nicholas refers to as the "Ramos Video." (See Dkt. No. 188 ¶ 97; see also Dkt. No. 193 ¶ 50.) Joseph John Ramos, the author of the "Ramos Video," is a civilian and self-described "fire buff" who frequents FDNY rescue scenes in order to record and post videos of FDNY rescues to YouTube. (Dkt. No. 193 ¶ 49.) Ramos makes an effort to favorably depict FDNY in his videos, and he deletes negative comments about NYPD and FDNY from his YouTube page. (Id. ) Like other fire buffs, Ramos frequently wears clothing from fire departments when documenting FDNY rescues. (Dkt. No. 193 ¶ 53 (citing Dkt. No. 188-11 at 43-45).)

The first twelve or so minutes of the Ramos Video capture Ramos's initial arrival on the scene of the October 30, 2015 building collapse and consist mostly of footage of the scene outside of the area DeBonis and Davis describe as the "frozen zone." (Ramos Video 00:00-12:20.) This section of the video confirms the presence of police tape blocking public access from both the east and west to the portion of the West 38th Street block with the collapsed building. (Dkt. No. 193 ¶ 52; see also, e.g. , Ramos Video at 01:32-01:43, 07:57-08:06.) Ramos himself does not attempt to cross this police tape in his video, but his video does show the presence of a number of civilians on the portion of the block just inside the police tape. (Id. ) This section of Ramos's video also shows a large number of emergency vehicles continuously arriving on the scene. (See, e.g. , Ramos Video at 07:20-07:55 (depicting at least fifteen emergency vehicles on the western edge of the closed portion of the West 38th Street block).)

Though Ramos himself never attempted to cross the police tape blocking access to the collapsed building from either end of West 38th Street, Ramos was eventually able to access the sidewalk adjacent to the collapsed building, which was inside the area described by DeBonis and Davis as "frozen," by traveling through two other buildings and climbing down a fire escape. (Dkt. No. 193 ¶ 53; Dkt. No. 202 ¶ 50; Dkt. No. 188-11 at 73-77.) The parties dispute whether Ramos may be said to have "snuck into" the rescue area, as well as whether and to what extent NYPD and the Individual Defendants acquiesced to his presence therein. (Dkt. No. 193 ¶ 53; Dkt. No. 202 ¶ 50.) But it is undisputed that once Ramos was inside the "frozen zone," none of the dozens of City officials nearby ever asked Ramos to leave, although they may at some points have asked Ramos to move to or from specific areas on the block. (Dkt. No. 193 ¶ 55.)

Ramos's extended video footage from this location confirms that he was indeed able to remain in and film nearly the entire rescue operation as it unfolded right outside the collapsed building on West 38th Street. (See Ramos Video at 12:20-47:17.) Ramos's video footage thus provides a comprehensive picture of what that rescue operation looked like on the ground. Perhaps most relevant to the present motions, Ramos's video confirms that of the many dozens, if not hundreds, of individuals in the immediate vicinity of the rescue operation, nearly all were uniformed City personnel. (See, e.g. , Ramos Video 17:17-17:53; 22:51-24:20; 27:00-29:39; 38:52-42:14.) However, Ramos's video shows that in addition to Ramos himself, a few other nonuniformed civilians were also able to take pictures or video of the rescue from inside the supposed frozen zone. (See, e.g. , Ramos Video at 19:50-19:51, 40:30-40:31; see also Dkt. No. 188-33 at 4 (picture of civilian taking photo of rescue operation from inside frozen zone).) In addition, a number of other civilians can be seen in Ramos's video freely traversing the scene as the rescue was unfolding. (See, e.g. , Ramos Video at 31:04-31:09, 40:50-40:58, 41:10-41:18; see also Dkt. Nos. 188-30, 188-31, 188-32, 188-33 at 2, 5 (pictures of civilians standing in or walking through the frozen zone).) Finally, Ramos's video depicts a number of City personnel freely moving about the scene with cameras and cellphones, taking pictures and videos. (See, e.g. , Ramos Video at 33:06-33:15, 33:43-34:24, 40:10-40:14.)

This video brings to life the scene that confronted DeBonis and Davis when they arrived on the West 38th Street block of the collapsed building on October 30, 2015. As members of NYPD's DCPI Office, Davis and DeBonis had come to the scene in order to "deal with whatever press was on the scene ... and keep them informed of what was happening and to help establish a place where they could observe the activity at the scene." (Dkt. No. 202 ¶ 26.) Upon finding that the West 38th Street block was what they believed to be a "frozen zone," DeBonis and Davis began working to establish a "designated press area" inside that "frozen zone" so as to allow the media to document the scene from a safe distance. (Dkt. No. 202 ¶¶ 22, 26.) Given the large media presence and the need to allow unencumbered access of emergency vehicles to the scene, DeBonis described this task as a difficult one. (Dkt. No. 202 ¶¶ 27, 30.) Still, DeBonis and Davis assert that they were able to carve out a "designated press area" within the frozen zone that was sufficiently close to the rescue operation so as to allow the press to document most of the scene without obstruction. (Dkt. No. 202 ¶¶ 29, 32; see also Dkt. No. 183 ¶ 16.)

Nicholas disputes whether members of the press in the "designated press area" were able to effectively observe and document the rescue operations. (Dkt. No. 202 ¶ 29.) He cites testimony from photographers both in and outside of the designated press area who felt that "in the position [they] were in[,] in [that] situation it was impossible to depict, to accurately depict the actual activity going on in the rescue efforts that were happening in that day." (Dkt. No. 202 ¶ 29 (quoting Dkt. No. 188-13 at 110); see also Dkt. No. 193 ¶¶ 29-30.) For their part, Defendants concede that the arrival of the ambulance that ultimately transported the formerly trapped worker from the scene did end up obstructing the designated press area's view of the victim's rescue. (Dkt. No. 202 ¶ 32.) Photos taken from inside the designated press area show that about ten to fifteen storefronts separated the location of the press area on the West 38th Street block from the collapsed building. (See Dkt. No. 188-33.) These photos also confirm that the ambulance that eventually arrived to rescue the trapped worker blocked the designated press area's view of the victim as he was being removed from the building. (See Dkt. No. 188-33.)

The parties also dispute whether Nicholas ever learned that a designated press area had been established during the period he was waiting inside the store adjacent to the collapsed building. (Dkt. No. 193 ¶¶ 31-32; Dkt. No. 184 at 15.) But whether or not Nicholas knew about the frozen zone and press area, it is undisputed that Nicholas never actually went to the press area after it had been established. (Dkt. No. 202 ¶ 34.) While other members of the press on the scene gathered in their designated area, Nicholas remained inside the store adjacent to the collapsed building and waited inside for some more newsworthy events to unfold. (Dkt. No. 202 ¶¶ 34-35.) Eventually, Nicholas received word from his boss at the Daily News , whose access to the collapsed building from the western side of West 38th Street had been obstructed by the police tape captured in the Ramos Video, that an ambulance had arrived on the scene. (Dkt. No. 202 ¶ 40; see also Dkt. No. 182-10 at 30.) This ambulance would soon be used to transfer the injured construction worker away from the scene. (Dkt. No. 202 ¶ 39.)

Upon learning of the ambulance's arrival from his boss, Nicholas exited the store where he had been waiting and walked toward the ambulance in order to photograph the rescued worker. (Dkt. No. 193 ¶ 62; Dkt. No. 202 ¶ 40; Dkt. No. 188-94 ("Nicholas Video") .) Along the way, Nicholas walked by a line of police tape that had fallen to the ground. (Dkt. No. 202 ¶ 45; Nicholas Video at 00:19-00:24.) At no point during his approach to the ambulance did any City officials stop Nicholas or ask him to relocate. (Dkt. No. 193 ¶ 64; Nicholas Video at 00:00-00:34.)

Nicholas walked directly to the side of the ambulance as the rescued worker was being lifted inside. (Nicholas Video at 00:30-00:35; Ramos Video at 39:33-39:39.) Nicholas positioned himself next to the ambulance's back door and behind a line of City officials surrounding the worker, and he began shooting the scene from there. (Id. ; see also Dkt. No. 193 ¶ 66; Dkt. No. 202 ¶ 48.) At this moment, the very moment at which the rescued worker was being lifted inside the ambulance, Nicholas was the only civilian on the street near the ambulance. (Ramos Video at 39:33-39:36.) He would later describe himself as having been approximately "a foot" or "a yard" from the emergency personnel tending to the rescued worker. (Dkt. No. 193 ¶ 68; Dkt. No. 202 ¶ 43.) The next closest civilian, who was Ramos, was recording the events from the sidewalk a number of yards away. (Dkt. No. 202 ¶¶ 49-51; Ramos Video at 39:33-39:36.) Among the City employees who were standing near the rescued worker was an FDNY employee with a camera who was also documenting the scene. (Ramos Video at 39:33-39:36; see also Dkt. No. 193 ¶¶ 70-71.) This employee, who was also a Captain with FDNY and a trained EMT, was taking pictures from alongside and from inside the ambulance as the rescued worker was being lifted into the ambulance, and some of her pictures would eventually be published by FDNY. (Dkt. No. 193 ¶ 73; Dkt. No. 202 ¶ 54.)

Nicholas was able to record and photograph the rescue from this vantage point for approximately three seconds without obstruction. (Nicholas Video at 00:30-00:35; Ramos Video at 39:33-39:39.) Photo and video evidence confirms that immediately thereafter, a City official next to Nicholas raised her arm to cover Nicholas's camera. (Dkt. No. 193 ¶ 75; Dkt. No. 188-27 at 22; Ramos Video at 39:39.) Defendant DeBonis and another uniformed NYPD officer then approached Nicholas and moved him away from the ambulance. (Dkt. No. 193 ¶ 76; Ramos Video at 39:39-39:42.) As DeBonis removed Nicholas from alongside the ambulance, his words to Nicholas were caught on the videotape Nicholas was shooting of the scene: "What are you doing? What are you doing? What are you doing? You're not allowed behind the press line. You're not allowed behind this ... Walk with me." (Dkt. No. 193 ¶ 77; Nicholas Video at 00:33-00:42.) While DeBonis was escorting Nicholas away from the scene, he was joined by Defendant Davis, and the following exchange ensued:

Davis: "You know what the-you know what the rules are here pal."

Nicholas: "What do you mean? I've been in there the whole time."

Davis: "Yeah? Good for you. This is the last time you'll do that."

Nicholas: "What do you mean?"

Davis: "You know what I mean. Everyone else is over there working with us. We work with you all the time. Don't bullshit me."

Nicholas: "How do I know? How do I know that?"

(Dkt. No. 193 ¶¶ 80-82; Nicholas Video at 00:55-01:11.)

By the end of this exchange, the Individual Defendants had come into possession of Nicholas's press credential, although the parties dispute whether the Individual Defendants "took" Nicholas's credential or whether Nicholas "surrender[ed]" it to them. (Dkt. No. 193 ¶ 83; Dkt. No. 202 ¶ 55; see also Dkt. No. 188-33 at 7 (photo taken from designated press area depicting Defendant DeBonis in possession of Nicholas's press credential).) Davis told DeBonis: "Hold on to that Michael. And talk to me before you think about giving it back. Alright? Me personally." (Dkt. No. 193 ¶ 83; Nicholas Video at 01:14-01:19.) DeBonis answered Davis with a "Yes sir." (Dkt. No. 193 ¶ 83; Nicholas Video at 01:19.) Nicholas can then be heard on video remarking that he had been "staying out of the way," and Davis answers by telling Nicholas to: "Get out of here. Get out of here. Team player." (Dkt. No. 193 ¶¶ 84, 86; Nicholas Video at 01:20-01:27.) Davis can then be heard telling DeBonis to escort Nicholas off of the block, and DeBonis answered Davis with another "Yes sir." (Dkt. No. 193 ¶ 86; Nicholas Video at 01:27-01:30.) Nicholas's video ends at this point.

At his deposition, Nicholas testified that following the exchange that was captured on video, DeBonis told Nicholas that the rescued worker would likely die and that Nicholas should take that fact into account prior to disseminating his footage of the rescue. (Dkt. No. 193 ¶ 87.) DeBonis denies having said this to Nicholas. (Id. ) When they arrived at the edge of the West 38th Street block, DeBonis instructed the NYPD officers there not to allow Nicholas to reenter the block. (Dkt. No. 193 ¶ 89.) DeBonis then returned to the designated press area inside the frozen zone, where the City held a press conference for the members of the press located there. (Dkt. No. 193 ¶¶ 90-91.) According to other journalists present at the press conference, DeBonis instructed the journalists there to "[t]ell [their] boys in the [New York Press Photographers Association] that [Nicholas] is never getting his press card back." (Dkt. No. 193 ¶ 91.) DeBonis denies having said this, too. (Id. )

That evening, Nicholas sent DeBonis two emails containing a total of three photos showing Nicholas's location relative to the ambulance prior to his removal from the scene; the second email, containing two photos, had the phrase "FAR FROM AMBULANCE" in the subject line. (Dkt. No. 193 ¶¶ 97-98; Dkt. Nos. 188-69, 188-70.) DeBonis responded to the second email with the following email text: "FROZEN ZONE." (Dkt. No. 193 ¶ 98; Dkt. No. 188-70.)

Around the same time Nicholas was sending these emails to DeBonis, the Daily News published at least one of Nicholas's images from alongside the ambulance in connection with their reporting on the West 38th Street building collapse. (Dkt. No. 202 ¶ 48; see also, e.g. , Dkt. No. 188-23 at 2.)

E. Post-October 30, 2015 Events

At 8:19 a.m. on the morning of October 31, 2015, the day following the building collapse, Nicholas sent the following email to Detective DeBonis, with the subject line "APOLOGY":

Thank you for taking the time to respond to my email regarding yesterday's incident.

First and foremost, Mike, you above all have treated myself and my colleagues at all times with the utmost consideration and respect. You act in great fairness regardless of who or what the situation entails and I want to make it crystal clear I would never willfully do anything to undermine the generosity and respect you, and the office of the deputy commissioner have shown me.

I am truly regretful that any actions taken by me yesterday in the course of my job while on assignment for the New York Daily News could in any way be seen as contradicting your authority or be construed as disrespectful to you or the Deputy Commissioner or your office.

We thread a fine needle in our work, Detective, and in that work Mike sometimes our jobs intersect perfectly and cooperation while always the goal is sometimes even inadvertently almost untenable.

On this day, my goal was simply to make a photograph of a man being rescued and transported by paramedics - which, as a newspaper photographer is really our only photo.

This, I achieved, as many of my colleagues do, by trying to be as mindful and respectful of your directives, and my responsibilities to make photos in a safe and lawful manner.

I was at that moment, tucked away with any number of civilians with cellphones in hand doing precisely what I described above. There is video and still evidence of this.

I do not say this to defend anything or be combative - but to simply to dispel [sic] any misinformation you may have heard.

I remained calm at all times when you and I interacted. And i [sic] complied with your directives to surrender my credential without argument or delay.

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.

Sincerely,

JB Nicholas

(Dkt. No. 183-5.) DeBonis received but never responded to this email. (Dkt. No. 193 ¶ 100.)

Over the weeks following the October 30, 2015 incident, Nicholas claims to have experienced a significant decrease in work assignments from the Daily News. (Dkt. No. 202 ¶¶ 60, 80.) The parties dispute the extent to which this decrease in Daily News assignments-and Nicholas's inability to find photojournalist work elsewhere-can be attributed to his lack of a press credential during this period. (Dkt. No. 193 ¶ 126.) One of Nicholas's former editors at the Daily News testified at his deposition that he stopped assigning Nicholas work at this time in part because without a press credential Nicholas "didn't have the tools to work." (Dkt. No. 193 ¶ 127.) Another Daily News editor similarly stopped assigning Nicholas work in part due to a personal policy of never assigning work to photographers without press credentials. (Dkt. No. 193 ¶ 128.) Nicholas testified at his deposition that he was also unable to get work with other media outlets in New York City during this period. (Dkt. No. 193 ¶ 131.) According to Nicholas, only after his press credential was eventually reinstated was he was once again able to get work as a reporter with New York City-based media outlets. (Dkt. No. 193 ¶ 132.)

According to Defendants, Nicholas's lapse in work assignments from the Daily News and other news outlets during this period is attributable to Nicholas's arrest record and his misconduct at the scene of the October 30, 2015 building collapse rather than to his lack of an NYPD press credential. (Dkt. No. 193 ¶¶ 126, 131.) Defendants also emphasize that Nicholas was only ever a "part time independent contractor" for the Daily News prior to the October 30, 2015 incident, a fact they contend refutes Nicholas's contention that he was entitled to continued workflow from the Daily News. (Id. ; see also Dkt. No. 202 ¶¶ 77-78.) Nicholas acknowledges that he was employed by the Daily News in a freelance capacity, but he contends that his editors at the Daily News had in the past agreed to provide him with a certain minimum number of assignments per week, and that the Daily News ceased to comply with this agreement only after Nicholas no longer had an NYPD-issued press credential. (Dkt. No. 202 ¶¶ 77, 79.) Only one of the Daily News editors deposed in this case was asked about this agreement, and he could not confirm its existence. (Id. )

Defendants also note that Nicholas actually received a few final assignments from one specific Daily News editor in the month following the October 30, 2015 seizure of his press credential, a fact they construe as rebutting Nicholas's contention that his lack of a credential in this period made him unemployable as a photojournalist. (Dkt. No. 193 ¶ 129; Dkt. No. 202 ¶ 60.) While Nicholas does not dispute that he did receive some assignments from this Daily News editor during this period, he disputes that these assignments were of comparable quality or quantity to those that he would have received had he been a photographer with a press credential. (Id. ) In doing so, Nicholas cites the assigning editor's deposition testimony explaining that during this period Nicholas

was obviously not really able to accept the kind of assignments that I would normally give him without the press credential, breaking news assignments specifically. It's hard to produce without one.... He never got his press card back and I could no longer give him the assignments that I would give him which means I could not-I was able to give him less work.... Those were limited and few and far between.... Those jobs were significantly reduced from what I remember.

(Dkt. No. 202 ¶ 60 (quoting Dkt. No. 188-7 at 49-50, 53, 55).) That editor further testified that during this period he could assign Nicholas only "[t]hings that [were] not breaking news assignments that would not come under the administrative jurisdiction of the NYPD." (Dkt. No. 188-7 at 54.)

The parties do not dispute that by December 2015, after this last editor willing to give Nicholas assignments at the Daily News had left the newspaper, Nicholas stopped receiving assignments altogether from the Daily News. (Dkt. No. 202 ¶¶ 60, 80.)

On December 1, 2015, Nicholas sent another email to DeBonis, in which he asked DeBonis for permission to "come in and talk about [his] press card." (Dkt. No. 193 ¶ 101; Dkt. No. 188-71.) According to an NYPD IT administrator who conducted a database search of DeBonis's email account, DeBonis's email account never received this email from Nicholas. (Dkt. No. 193 ¶ 101; Dkt. No. 196 ¶¶ 1, 9, 17.)

One week later, on December 8, 2015, Nicholas filed the instant suit challenging the October 30, 2015 seizure of his press credential. (Dkt. No. 2.) Other than the parties' exchange at the scene of the building collapse on October 30, 2015, and DeBonis's email to Nicholas sent that evening consisting of the text "FROZEN ZONE," none of the Defendants corresponded with Nicholas or provided Nicholas with further information or notice regarding their confiscation of his press credential prior to his commencement of this action. (Dkt. No. 193 ¶¶ 102, 104, 109; see also Dkt. No. 201-5 at 224-26.)

II. Procedural Background

Nicholas commenced this action on December 8, 2015 by filing a complaint against the City of New York, William Bratton, Stephen Davis, and Michael DeBonis. (Dkt. No. 2.) At the time, Nicholas was proceeding pro se. Simultaneously with his initiation of this action, Nicholas also filed a motion for a preliminary injunction ordering Defendants to return to him his NYPD press credential, alleged to have been "summarily revoked" on October 30, 2015. (Dkt. No. 3 at 1.)

The Court held oral argument on Nicholas's motion on May 12, 2016. (See Dkt. No. 43.) At oral argument, Defendants' lawyers explained that Nicholas's press credential had not been "revoked" but had only been "summarily suspended" pursuant to Title 38, Section 11-11(b) of the Rules of the City of New York, and that Nicholas was eligible for a Section 11-11 hearing challenging that suspension. (Dkt. No. 202 ¶ 62.) It was at this hearing that Nicholas first learned that Section 11-11 provided a mechanism for him to obtain a hearing challenging the suspension. (Dkt. No. 202 ¶ 62.) At the conclusion of oral argument, the Court took Nicholas's motion for a preliminary injunction under advisement. (See Minute Entry, May 12, 2016.)

The next day, Plaintiff emailed Defendant Davis to request a Section 11-11 hearing. (Dkt. No. 193 ¶ 115; Dkt. No. 202 ¶ 63.) On May 17, 2016, Lisa Bland, Special Counsel to the DCPI's Office, emailed Nicholas to notify him that his Section 11-11 hearing would be held on May 19, 2016. (Dkt. No. 202 ¶ 64; Dkt. No. 182-15.) The notice consisted of the following:

The department has received your request dated May 13, 2016, for a hearing regarding the suspension of your press credentials. Pursuant to Title 38 of the Rules of the City of New York, section 11-11(b), a hearing has been scheduled for Thursday, May 19, 2016, at One Police Plaza, Room 1320, New York, New York, 10038 at 2:00pm.

(Dkt. No. 182-15.) Nicholas responded to Bland's email with a number of questions regarding the hearing, including:

[A]m i [sic] allowed to call witnesses at the hearing? [I]f so, how do I gain admittance for them into the building?

[A]m i [sic] allowed to present documentary evidence at the hearing? [I]f so, how do I get it and a computer into the building?

[W]ho is the hearing officer?

[W]ill a record of the hearing be made? [I]f not, can i [sic] record the proceeding with a digital audio recorder?

(Dkt. No. 188-76 at 3.) Bland answered each of Nicholas's questions, and asked Nicholas for further information regarding the evidence he intended to introduce at the hearing. (Id. ) In a follow-up email, Nicholas disclosed that he intended to introduce video and photo evidence as well as testimony from three witnesses to the October 30, 2015 incident, and he asked Bland to disclose "what witnesses or evidence[ ] the police department [would] be considering other than what [he] proffer[ed]." (Id. ) Bland answered that "[t]he department will present any documentary evidence that it deems relevant to the issue of reinstatement of the press pass." (Dkt. No. 188-76 at 2.) After Nicholas sent another follow-up email again asking that Bland disclose the evidence NYPD intended to produce so as to avoid surprise, Bland explained that the hearing would "not [be] an adversarial proceeding ... [and i]f the department present[ed] any documentary evidence, it would not be anything that [Nicholas] w[as]n't previously aware of." (Id. )

Nicholas's Section 11-11 hearing was subsequently conducted as scheduled on May 19, 2016. (Dkt. No. 193 ¶ 119.) The hearing was conducted by DCPI's former Commanding Officer, Chief Edward Mullen. (Id. ) Also present at the hearing were Defendant Whyte and Lisa Bland, each of whom asked questions of Nicholas and his witnesses during the hearing. (Id. ; see also Dkt. No. 202 ¶ 68.)

Nicholas calls into question the fairness of some aspects of his Section 11-11 hearing. For example, Nicholas protests that because Mullen was a direct subordinate of Defendant Davis, and because Davis had previously directed DeBonis not to return Nicholas's credential without his personal approval, Mullen was not an impartial adjudicator. (Dkt. No. 193 ¶ 120.) In addition, Nicholas notes that Mullen admitted at his deposition that he took into account a prior conversation with Defendant DeBonis regarding the October 30, 2015 incident when adjudicating Nicholas's request for reinstatement of his press credentials, even though DeBonis had not been called as a witness at the hearing and Mullen had indicated that NYPD did not intend to consider evidence that had not been discussed at the hearing. (Dkt. No. 193 ¶¶ 121-24.) Nicholas did not note his objections to these aspects of the hearing on the record of that proceeding, but he did describe them (and a number of others) in a five-page letter filed with this Court and hand-delivered to Defendants' counsel the next morning. (Dkt. No. 202 ¶ 69; Dkt. No. 28.)

NYPD ultimately elected to reinstate Nicholas's press credential following the conclusion of his Section 11-11 hearing. (Dkt. No. 193 ¶ 125; Dkt. No. 202 ¶ 73.) Defendants contend that this decision was made by Chief Mullen alone, although Nicholas disputes this, in part on the basis of Mullen's persistent use of the plural "we" when describing his decision-making process at the hearing. (Dkt. No. 202 ¶ 73.) It is also unclear precisely when that decision was made. Nicholas was first informed that his credential would be reinstated by Defendants' counsel in this action at a June 23, 2016 conference before this Court. (Id. ) That evening, Special Counsel Bland emailed Nicholas to confirm that his credential would be reinstated and directed him to contact Defendant Whyte for instructions for retrieving the credential. (Dkt. No. 182-18.) Nicholas picked up his credential three days later. (Dkt. No. 193 ¶ 125.) As of the time of the parties' briefing of the present motions, Nicholas continued to be in possession of an NYPD-issued press credential. (Dkt. No. 202 ¶ 81.)

After the return of his press credential, Nicholas moved this Court for leave to file an amended complaint against Defendants the City of New York, William Bratton, Stephen Davis, and Michael DeBonis. (Dkt. No. 48.) The Court granted Nicholas's motion for leave to file an amended complaint on August 5, 2016. (Dkt. No. 51.) Defendants then moved to dismiss the amended complaint, and the Court denied that motion on February 27, 2017. (Dkt. No. 85.)

On June 12, 2017, the Court granted Nicholas leave to file a second amended complaint naming Lieutenant Whyte as a Defendant in this action, but only with respect to Whyte's conduct in connection with the events of October 30, 2015. (Dkt. No. 99.) Nicholas then filed the operative Second Amended Complaint. (Dkt. No. 126.) The Second Amended Complaint asserts the following four live claims: (1) violations by Defendants Davis and DeBonis of Nicholas's First, Fourth and Fourteenth Amendment rights when they removed Nicholas from the scene of the October 30, 2015 building collapse (Dkt. No. 126 ¶ 159); (2) violations by Defendants Davis and DeBonis of Nicholas's Fourteenth Amendment right to equal protection when they removed Nicholas from the scene of the October 30, 2015 building collapse and revoked his press credential (Dkt. No. 126 ¶ 160); (3) violations by Defendants Davis and DeBonis of Nicholas's procedural and substantive due process rights when they failed to notify him of either the existence of a frozen zone at the scene of the October 30, 2015 building collapse or of his right to a timely opportunity to be heard to challenge their suspension of his press credential (Dkt. No. 126 ¶ 161); and (4) violations by all five Defendants of Nicholas's First, Fourth and Fourteenth Amendment rights in creating, following, and enforcing a custom or practice that interferes with newsgathering (Dkt. No. 126 ¶ 164).

Currently pending before the Court are the following motions: (1) Defendants' motion to preclude the testimony and opinions of Plaintiff's expert witness Mickey Osterreicher from summary judgment and trial (Dkt. No. 170); (2) Individual Defendants Davis and DeBonis and Whyte's motion for summary judgment (Dkt. No. 180); and (3) Plaintiff's motion for summary judgment (Dkt. No. 185). The Court is now prepared to rule on these motions.

III. Motions for Summary Judgment

A. Legal Standard

A "court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "An issue of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. A fact is material if it might affect the outcome of the suit under the governing law." SCR Joint Venture L.P. v. Warshawsky , 559 F.3d 133, 137 (2d Cir. 2009) (quoting Roe v. City of Waterbury , 542 F.3d 31, 35 (2d Cir. 2008) ).

In reviewing a motion for summary judgment, a court must consider the evidence "in the light most favorable to the non-moving party and draw all reasonable inferences in its favor." Allen v. Coughlin , 64 F.3d 77, 79 (2d Cir. 1995). "It is well established that '[c]redibility assessments, choices between conflicting versions of the events, and the weighing of evidence are matters for the jury, not for the court on a motion for summary judgment.' " Curry v. City of Syracuse , 316 F.3d 324, 333 (2d Cir. 2003) (alteration in original) (quoting Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir. 1997) ). In cases in which "a relevant videotape whose accuracy is unchallenged" is part of the summary judgment record, that video "should be credited by the court on [a summary judgment] motion if it so utterly discredits [one] party's version [of events such] that no reasonable juror could fail to believe the version advanced by the [other] party." Zellner v. Summerlin , 494 F.3d 344, 371 (2d Cir. 2007).

Finally, in cases involving cross-motions for summary judgment, "the court must evaluate each party's motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration." Coutard v. Mun. Credit Union , 848 F.3d 102, 114 (2d Cir. 2017) (quoting Schwabenbauer v. Bd. of Educ. , 667 F.2d 305, 314 (2d Cir. 1981) ).

B. First Amendment

The parties cross-move for summary judgment on Plaintiff's First Amendment claims. (Dkt. No. 184 at 7-18; Dkt. No. 187 at 8-24.) For the reasons that follow, the Court concludes that genuine disputes of material fact exist with respect to the substantive aspects of Nicholas's First Amendment claims, but that Individual Defendants Davis and DeBonis are entitled to partial summary judgment with respect to Nicholas's First Amendment claims against them on the basis of qualified immunity.

1. Press Right to Access Co-Equal with the Government

As a threshold matter, Nicholas contends that Defendants violated the First Amendment when they provided the City's own press officers with preferential access to the scene of the building collapse, to the exclusion of other members of the press. (Dkt. No. 187 at 9-12.) Nicholas points to undisputed evidence in the summary judgment record showing that at the same time Defendants confined most journalists to a press area up the street from the collapsed building and expelled Nicholas from the scene for taking photos from alongside the ambulance, Defendants simultaneously permitted City press officials to freely move about the scene and to take photos from alongside and inside the ambulance. (Dkt. No. 187 at 10-12.) In support of his contention that this conduct constituted a First Amendment violation, Nicholas cites a Second Circuit case, Legi-Tech, Inc. v. Keiper , 766 F.2d 728 (2d Cir. 1985), in which the Second Circuit explained that the government "may not grant the state press special access to governmental proceedings or information and then deny to the private press the right to republish such information," id. at 733. On the basis of Legi-Tech 's rejection of actions that "allow[ ] the government to control the form and content of the information reaching the public," id. , Nicholas argues that Defendants' conduct here constituted a First Amendment violation as a matter of law.

The Court disagrees. Despite Legi-Tech 's far-reaching language, it would be improper to extrapolate from that language a blanket rule requiring co-equal access for government press officials and private journalists to all newsworthy events, including emergency situations such as the one that existed on West 38th Street on October 30, 2015. Legi-Tech was not about access to emergency rescues. Instead, Legi-Tech involved a challenge to a New York statute that prohibited companies that sold electronic access to certain legislative material from accessing a state-run database that contained, among other things, the text of pending state legislation. Id. at 731. In reversing the district court's holding that the state's interest in "protect[ing its] natural monopoly on computer supplied legislative information" justified such a legislative scheme, the Second Circuit held that a statutory scheme that had no justification beyond the creation such a monopoly would be "an [impermissible] exercise of censorship." Id. at 733 (first quoting Legi-Tech, Inc. v. Keiper , 601 F.Supp. 371, 381 (N.D.N. Y 1984) ).

The state's preferential access to legislative materials in Legi-Tech is entirely unlike the preferential access the City here provided its own employees to the scene of a building collapse in midtown Manhattan. Unlike in Legi-Tech , where the state offered no justification for allowing itself preferential access beyond an asserted right to control the flow of information, Defendants here justify their decision to control access to the scene of the emergency by pointing to their need to manage the "dynamics of an emergency response to a partial building collapse where human life was at risk." (Dkt. No. 199 at 8 n.6.) Because the Court has little trouble concluding that such a need, if it in fact exists, can provide a legally sufficient justification for the government to restrict access to the immediate vicinity of an ongoing emergency, Legi-Tech does not establish that the City's choice on its face runs afoul of the First Amendment. Thus, it remains a factual question whether the events of October 30, 2015, as a matter of fact, presented the City with a need to manage the "dynamics of an emergency response" that was sufficient to justify the restrictive steps that the City took.

In so holding, the Court does not carve out of Legi-Tech 's rejection of unjustified government monopolies on information a carte blanche for government entities to provide their own officials with exclusive or preferential rights of access to information about emergency situations. Instead, as with all situations involving "restriction[s] which afford[ ] different degrees of access to members of the press," courts confronting challenges to such restrictions retain the obligation to ensure that they are both content neutral and "serve a legitimate governmental purpose, [are] rationally related to the accomplishment of that purpose, and ... outweigh the systemic benefits inherent in unrestricted (or lesser-restricted) access." Stevens v. N.Y. Racing Ass'n , 665 F.Supp. 164, 175 (E.D.N.Y. 1987) (second quoting D'Amario v. Providence Civic Ctr. Auth., 639 F.Supp. 1538, 1543 (D.R.I. 1986) ). The Court turns to each of these inquiries below.

With these important limiting principles in mind, the Court declines to interpret Legi-Tech 's rejection of a state government's standalone interest in maintaining a monopoly on legislative information as having established a uniform rule that forbids governmental entities from ever providing their own press officials with preferential access to the scenes of emergency rescues. The fact that the government chose to do so here, then, does not by itself entitle Nicholas to summary judgment.

2. Press Right to Access Co-Equal with the Public and Other Journalists

The parties cross-move for summary judgment on the issue of whether Defendants' conduct at the scene of the October 30, 2015 building collapse resulted in the exclusion of the press from an area open to the general public, as well as whether Defendants impermissibly provided particular members of the press with preferential access to the scene. (Dkt. No. 187 at 12-15; Dkt. No. 184 at 7-9.) Because the record contains evidence sufficient to convince a reasonable juror either that Defendants did not impermissibly afford the public or specific journalists differing levels of access to the scene, or, alternatively, that Defendants did impermissibly afford preferential access to particular journalists on the basis of the content of their speech, no party is entitled to summary judgment on this question.

a. Governing Law

The parties generally do not disagree on the legal standards governing the press's right of access to spaces that are open to the general public. (Dkt. No. 187 at 12-13; Dkt. No. 199 at 6-7.) It is well settled that "press organizations have a ... right of access to newsworthy events in their capacity as representatives of the public and on their own behalf as members of the press," WPIX, Inc. v. League of Women Voters , 595 F.Supp. 1484, 1489 (S.D.N.Y. 1984), for "without some protection for seeking out the news, freedom of the press could be eviscerated," Branzburg v. Hayes , 408 U.S. 665, 681, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972). But this right is not unlimited. For example, "the First Amendment does not guarantee the press a constitutional right of special access to information not a