Nicholas Transcript

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Case 1:15-cv-09592-JPO Document 43 Filed 07/25/16 Page 1 of 36 1
1 UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK
2 ------------------------------x
3 Jason B. Nicholas,
4 Plaintiff,
5 v. 15 Cv. 9592 (JPO)
6 William Bratton Commission,

NYPD, et al.,
7
Defendants.
8
------------------------------x
9 New York, N.Y.
May 12, 2016
10 2:35 p.m.
11 Before:
12 HON. J. PAUL OETKEN,
13 District Judge
14 APPEARANCES
15 JASON B. NICHOLAS
Plaintiff pro se
16
NYC LAW DEPARTMENT
17 Attorneys for Defendants
MARK D. ZUCKERMAN
18
19
20
21
22
23
24
25
SOUTHERN DISTRICT REPORTERS, P.C.

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1 THE DEPUTY CLERK: Your Honor, this is in the matter
2 of Jason Nicholas versus William Bratton Commissioner, NYPD,
3 et al.
4 Starting with the pro se plaintiff, can I have parties
5 state their appearances for the record, please.
6 MR. NICHOLAS: Good afternoon, your Honor. Jason
7 Nicholas.
8 THE COURT: Good afternoon.
9 MR. ZUCKERMAN: Mark Zukerman from the Office of the
10 Corporation Counsel for the defendants. Good afternoon, your
11 Honor.
12 THE COURT: Good afternoon.
13 MR. NICHOLAS: Your Honor, if I just may. I'm sorry.
14 Affiant prospective witness has arrived. I need him to sign an
15 affidavit.
16 THE COURT: We're here for argument on the motion for
17 preliminary injunction filed by the plaintiff in this case.
18 Mr. Nicholas, as the plaintiff and as the movant, I'll let you
19 speak first. If you'd like to go to the podium or if you'd
20 like to stand at the table, whichever is easier for you is
21 fine, just as long as you speak clearly so that the court
22 reporter can take everything down.
23 MR. NICHOLAS: Yes, your Honor. Thank you.
24 Just recently, your Honor, I had the opportunity -- a
25 witness to the case decided to sign an affirmation that I asked

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1 him to previously. I'd like to hand that up for the Court's
2 consideration. I've already provided a copy to Mr. Zuckerman.
3 MR. ZUCKERMAN: I do object on timeliness grounds at
4 this point, your Honor. We're here on oral argument, and
5 they're submitting that. I haven't had a chance to review or
6 rebut, so we do object to this.
7 THE COURT: I'm going to take the affidavit without
8 prejudice to any argument and any supplemental response you
9 might make. I'm not necessarily receiving it, but subject to
10 the objection, I'll receive it.
11 MR. NICHOLAS: In addition, your Honor, there's also
12 comments from the general counsel for the National Press
13 Photographers Association who had the occasion to submit
14 comments to the police department when they amended their
15 regulations in 2010. He couldn't be here today, but he
16 asked -- he provided the written statement that he made to the
17 police department back then, and I would also like that
18 submitted as Defendant's Exhibit D.
19 THE COURT: I'm sorry?
20 MR. NICHOLAS: I'd also like to submit that as
21 Plaintiff's Exhibit D.
22 THE COURT: Okay.
23 MR. NICHOLAS: Counsel also has a copy of that.
24 THE COURT: Can you hand it up to the deputy?
25 MR. ZUCKERMAN: Same objection. I was handed that

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1 just before this oral argument. I think the submissions are
2 untimely, and I haven't had a chance to review them and rebut
3 them, if necessary.
4 THE COURT: I'm going to reserve on the objection, and
5 I have received them provisionally, and I'll determine at a
6 later time whether they're properly received. Subject to that,
7 I've read all the papers and all the submissions, other than
8 the two you just handed me. I didn't really schedule a
9 full-blown hearing, I called it oral argument because I wanted
10 to sort of get a few questions answered in terms of background
11 and legal posture we're in.
12 Just to set the stage a little bit -- you can correct
13 me or clarify anything -- but my understanding of what's at
14 issue here is there is in, I believe it was, October 30th of
15 2015, Mr. Nicholas had his press pass taken by Mr. Debonis,
16 Detective Debonis from the New York City Police Department, at
17 a scene where there had been, I believe, a building collapse,
18 and they were extracting somebody from the building. And there
19 is the position taken by Mr. Debonis, I believe, at the time
20 was that Mr. Nicholas had stepped into a frozen zone, or an
21 unauthorized area, and for that reason took the press pass.
22 As I understand it, Mr. Nicholas has a couple of
23 claims. I put them under the category of First Amendment and
24 due process, essentially, that liberty or property of the
25 plaintiff was taken without due process of law, and that his

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1 First Amendment rights were violated.
2 We're here on a preliminary injunction, which is a
3 fast track procedure, obviously, to get provisional relief,
4 normally to preserve the status quo, but in some extraordinary
5 circumstances, a preliminary injunction can be granted that is
6 a mandatory injunction, like requiring specific relief. But
7 there are strict requirements, as you know, including a showing
8 of irreparable harm, which the plaintiff must prove, so I want
9 to ask a little bit about irrepairable harm; second, likelihood
10 of success on the merits. You have to be able to show that
11 you're likely to succeed on one or both of your claims; and
12 third, the balance of hardships must be in favor of plaintiff,
13 and the public interest must be served by granting the
14 preliminary injunction.
15 Let me start, Mr. Nicholas, by just asking what
16 exactly you're seeking on the preliminary injunction.
17 MR. NICHOLAS: Thank you, your Honor. Simply stated,
18 I actually have a proposed order that I drafted.
19 THE COURT: You can just tell me for now?
20 MR. NICHOLAS: Simply stated, your Honor, an order
21 requiring the police department in seven days to return my
22 press credential, and an order preventing them from further
23 revoking the credential while the action is pending without due
24 process of law.
25 THE COURT: They've argued that there is due process

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1 in the form of a hearing under Section 1111. Have you ever
2 requested a hearing?
3 MR. NICHOLAS: Yes, I have, your Honor. First of all,
4 to begin with, I'd like to say that, before this proceeding, I
5 had no idea that such a hearing was even possible. The police
6 department doesn't inform photographers of their rights under
7 Section 1111 at any time, so it was news to me, your Honor,
8 that such a proceeding was available.
9 THE COURT: So have you requested a hearing?
10 MR. NICHOLAS: Yes, I did, your Honor.
11 THE COURT: When and how?
12 MR. NICHOLAS: Firstly, your Honor, I would submit
13 that the email that I sent to Defendant Debonis on the 31st,
14 which asked to come in and talk about it, was a functional --
15 was a substantial equivalent of a request for a hearing.
16 Furthermore, I'd like to note that the next day, on
17 December 1st, I sent an email to Defendant Debonis asking can I
18 come in and talk about my press card. This is Plaintiff's
19 Exhibit E, which I have offered into the record. I'm going to
20 provide a copy right now to defense counsel. This email was
21 ignored.
22 THE COURT: This is December 1st?
23 MR. NICHOLAS: Correct.
24 THE COURT: You never got a response to this?
25 MR. NICHOLAS: That's correct.

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1 THE COURT: You said there were a series of emails; is
2 that right?
3 MR. NICHOLAS: Yes. I believe in addition to -- so in
4 the record currently is Defendant's Exhibit -- I forget which
5 letter it was, but it was an email that was entitled "Apology".
6 THE COURT: Right. I've read that.
7 MR. NICHOLAS: So they have that, and then there was
8 this email, and then there was one other email where Defendant
9 Debonis said, "Frozen zone."
10 THE COURT: Do you know when that was?
11 MR. NICHOLAS: I think that was in response to my
12 first email about "apology".
13 THE COURT: Okay.
14 MR. NICHOLAS: Yes.
15 THE COURT: Was the apology emailed to Detective
16 Debonis?
18 THE COURT: You've never formally asked for a hearing
19 using the word "hearing"?
20 MR. NICHOLAS: I would submit, your Honor, that the
21 letter requested to come in and talk about it is a functional
22 equivalent of requesting a hearing. Due process requires an
23 opportunity to be heard. That's clearly what I requested. I
24 didn't use the magic words, "Herein in accordance with Section
25 1111," but I would ask your Honor to view the submissions

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1 liberally in accordance with the rule generally that pro se
2 litigates be afforded -- you know, that their submissions be
3 liberally construed, I believe is the standard.
4 THE COURT: So in your view, you have not gotten a
5 hearing.
7 THE COURT: Okay.
8 MR. NICHOLAS: Just so we're clear, your Honor, under
9 the regulations, under Section 1111, the burden is not on the
10 journalist to request the hearing, the burden is on the police
11 department to provide a hearing. The language states,
12 "Whenever the revocation of the above-described press
13 credentials is sought, a hearing shall be provided before such
14 revocation shall take effect." The burden is on them, your
15 Honor.
16 THE COURT: Well, that's interesting. If you look at
17 B, I'll ask Mr. Zuckerman about this, but my understanding is
18 what happened here was under 1111(b), which says, "In those
19 instances where any of the above-described press credentials
20 are summarily suspended, a hearing may be requested by the
21 holder of the press credential and such hearing shall be
22 provided no later than five business days from the request."
23 So there seems to be a distinction in the statute
24 between summary suspension on the one hand and revocation on
25 the other. I assume this is in the category of summary

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1 suspension because it just happened at the spot.
2 MR. NICHOLAS: We don't know. All I can say is that
3 the police ordered me to surrender my credential. I
4 surrendered -- and told me that I would never be issued another
5 one. That's a revocation. Coming directly from the head of
6 DCPI, the highest ranking officer in charge of the department,
7 Steven Davis, said that I'd never -- instructed Defendant
8 Debonis that I'd never to do that again, and Defendant Debonis
9 said that I would never be issued another credential. This
10 was --
11 THE COURT: When did Debonis say that?
12 MR. NICHOLAS: He said that on the scene (inaudible)
13 we have his affirmation right here.
14 THE COURT: You have to speak so the court reporter
15 can hear you.
16 MR. NICHOLAS: I'm sorry. He said that to Dennis
17 Vantine --
18 THE COURT: Don't turn around.
19 MR. NICHOLAS: Dennis Vantine.
20 THE COURT: How do you spell that?
21 MR. NICHOLAS: D-e-n-n-i-s, V-a-n-t-i-n-e.
22 THE COURT: Is this another affidavit?
23 MR. NICHOLAS: That is, your Honor. And at the end,
24 paragraph 10, it repeats an allegation that was made in the
25 complaint. It says, "Tell your boys in the Press Photographers

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1 Association he's never getting another card," or words to that
2 effect. That's what Defendant Debonis told the journalists who
3 were gathered in the press panel in the street.
4 THE COURT: When you were there taking the photos that
5 you were able to take, the defendants, as you see from their
6 papers, talked about both an outer perimeter and a frozen zone,
7 and that some press people were allowed to take pictures from a
8 deli, as long as they stayed inside. Were you aware of any of
9 that at the time?
10 MR. NICHOLAS: No, your Honor. I was in a building
11 across the street.
12 THE COURT: So you didn't hear any instruction to go
13 to a certain area?
14 MR. NICHOLAS: At no point did any person inform me
15 that a frozen zone had been created or instruct me to go
16 anywhere. At no point. What happened, your Honor, was that
17 the frozen zone, if that's what they call it, was actually
18 erected around me while I was already inside the perimeter in a
19 store. I had no idea that the so-called frozen zone had been
20 created.
21 THE COURT: But you were in the store?
22 MR. NICHOLAS: Yes, that's correct.
23 THE COURT: The deli.
24 MR. NICHOLAS: It was not a deli, it was a tool or
25 plumbing supply, some kind of construction supply store that

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1 was on the same side as the partially collapsed building next
2 to it.
3 Just so we're clear, your Honor, here's the scene.
4 38th Street, middle of the week, work day, Fifth and Sixth
5 Avenues, there's a building about the middle of the block
6 that's under demolition to build a boutique hotel. And in the
7 rear of this building, away from the street, there was a
8 partial collapse. Partial collapse. Two construction workers
9 were injured in that, one was killed.
10 When this happened and the police department showed
11 up, a police line was established on each end of 38th Street at
12 Fifth and Sixth Avenues. Journalists at first were allowed
13 entry into here. Commerce was allowed to continue. The stores
14 on that block were allowed to remain open. People actually
15 walked on the sidewalk between the stores up and down.
16 Just so we're clear, your Honor, the only people
17 excluded from this block were journalists. Members of the
18 public had access to the stores on the street. They were
19 taking pictures with their cellphones. Photographers from
20 City-approved government photographers were operating in this
21 so-called frozen zone taking pictures.
22 Again, the only people excluded were member of the
23 media. It's perversion of the First Amendment.
24 THE COURT: Well, but weren't the people who were
25 allowed to take pictures from City Building Department and

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1 others who might have been part of the response effort in some
2 way?
3 MR. NICHOLAS: According to the affidavit of Dennis
4 Vantine that I just handed up, there was also a photographer
5 from Consolidated Edison. I mean, these people were not --
6 these photographers were not taking -- were not rescue
7 personnel, they were not a part of the rescue effort, they were
8 there to create propaganda for the City.
9 In fact, ultimately, some of these images were
10 released, none of which depicted the victims. In this way,
11 your Honor, the state was able to tell its side of the story,
12 the story of the heroic efforts of its rescue personnel, but at
13 the same time, it effectively suppressed the story of the
14 underpaid workers, laborers, you know, who were killed and
15 injured in a greedy rush toward gentrification. That side of
16 the story had the effect, whether it was the intention or not
17 we don't know, but it had the effect of suppressing that side
18 of the story, or attempting to.
19 THE COURT: Okay. Let me ask you. If there were a
20 hearing available, the relief you seem to be seeking is the
21 return of your press pass?
22 MR. NICHOLAS: That's correct, Judge.
23 THE COURT: But what if I found that there were a
24 hearing available?
25 MR. NICHOLAS: Okay.

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1 THE COURT: Would you be satisfied with the
2 opportunity to have a hearing pursuant to Section 1111?
3 MR. NICHOLAS: The problem with that, your Honor -- I
4 understand, your Honor's position. There's two --
5 THE COURT: It's not a position, it's a question.
6 MR. NICHOLAS: Thank you, your Honor. Here's the
7 problem with that. In this instance, the order to revoke my
8 press credential was made by Steven Davis, the head of the
9 Public Relations Department of the NYPD. Presumably -- unknown
10 at this point but maybe Mr. Zuckerman can enlighten us --
11 presumably, such a hearing would be conducted by members of
12 DCPI, lower ranking members of DCPI. In that event, your
13 Honor, there would be no opportunity for a fair and impartial
14 hearing because the hearing would be conducted by members who
15 were under the chain of command of the defendant, Davis, who
16 personally ordered the revocation of my press credential.
17 THE COURT: So you're making a futility argument, that
18 it would be futile to require you to go through the hearing
19 process because it would inevitably be rubber-stamped.
20 MR. NICHOLAS: Correct. Yes. And also, fundamentally
21 unfair from the beginning ab initio.
22 THE COURT: But still, normally we require plaintiffs,
23 if there are hearings or other opportunities to appeal
24 decisions that a government agency provides, we normally
25 require a plaintiff to go through that process and then take

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1 whatever the state law or city law remedies or hearings there
2 are that are available, and then possibly bring a suit after
3 that.
4 MR. NICHOLAS: That's not my understanding of Section
5 1983 law, your Honor. My understanding of Section 1983 law is
6 that it's supplemental to whatever remedy the state law
7 provides.
8 THE COURT: Well, but I'm talking about substantive
9 due process normally requires a consideration of whether there
10 are adequate post deprivation remedies.
11 MR. NICHOLAS: Not when the deprivation was
12 foreseeable. The purpose of providing a post deprivation
13 remedy is only where -- we're talking about Parrot and Hudson
14 where the deprivation was random and unforeseen.
15 In this -- under Zinermon versus Birch where the
16 people who effect the constitutional deprivation are delegated
17 with the authority to conduct that very deprivation, there can
18 be no -- the requirement for due process can't be satisfied by
19 post deprivation due process. It has to be pre-deprivation due
20 process.
21 THE COURT: I understand your argument. I understand.
22 MR. NICHOLAS: Patterson versus Coglin forecloses that
23 argument.
24 THE COURT: Let me turn, if I could, to the issue of
25 irreparable harm. You've talked a lot about how it affects

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1 your ability to work as a photo journalist to not have the NYPD
2 press pass. There is a line of cases that say -- we get a lot
3 of employment cases in court, people saying that their job was
4 wrongfully terminated, and there is a long line of cases saying
5 ordinarily your discharge from employment, someone getting
6 fired, that's not irreparable harm because it's something that
7 could be compensated with money damages later.
8 The question is, since they've taken away perhaps some
9 ability you've argued to do your job, but they haven't actually
10 taken away your job, wouldn't that a fortiori mean that it's
11 not irreparable harm? If we continued in this lawsuit and you
12 won, you could get damages for the period when you weren't able
13 to do your job.
14 My question is, where is the irreparable harm from the
15 removal of your press pass?
16 MR. NICHOLAS: The line of thought you just expressed
17 excludes consideration of the First Amendment. First Amendment
18 deprivations or impairments are almost ipso facto under Elrod
19 versus Burns and Barry versus City of New York.
20 The press credential for a photo journalist is -- you
21 can't be a photo journalist without a press credential in New
22 York City. I tried. I got arrested. It doesn't work.
23 THE COURT: What do you mean you got arrested?
24 MR. NICHOLAS: For taking pictures in a public space.
25 THE COURT: Without a press pass?

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1 MR. NICHOLAS: Without a press pass.
2 THE COURT: This is before you got a press pass?
3 MR. NICHOLAS: That's correct. That's correct. The
4 way the press credential operates in New York City,
5 functionally, from a journalist's point of view, it's a permit
6 to cross police lines. For the photo journalist, the ability
7 to cross police lines is absolutely essentially to the practice
8 of its craft, particularly in this day and age with such
9 concern for security.
10 Frequently, something will happen and there will be --
11 the police line will be established many blocks out. So
12 there's just no physical way to get close enough to the scene
13 to be able to work the craft.
14 THE COURT: What's your beat as a photo journalist?
15 MR. NICHOLAS: My beat? Breaking news is a
16 significant percentage of it, but also celebrity and things
17 like that.
18 THE COURT: So I would think a large portion of that
19 does not involve police lines. What percentage of your beat
20 requires crossing police lines?
21 MR. NICHOLAS: Yes, I understand, your Honor. It's
22 not just police lines, we're talking about access to the
23 courts, as well. I mean, unlike federal courts, New York State
24 courts allow photographs inside their courts, inside the
25 building, in the hallways and, as a matter of course and with

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1 permission of the courts, inside some courtrooms. Without a
2 press pass, I'm precluded from covering courts. So between
3 being precluded from covering courts and covering breaking
4 news, that's 70 percent of my work. I haven't -- you know, I
5 haven't been working.
6 In my preliminary injunction papers I noted that I had
7 intended on covering the presidential primaries this year, but
8 without the credential, I decided not to do that because it
9 would just be too many problems. So it's already had an
10 affect, your Honor. I mean, six months now I haven't been
11 working because of this.
12 THE COURT: You haven't been working at all?
13 MR. NICHOLAS: No. It's just not feasible for me
14 to -- for me to do it. It's too risky.
15 THE COURT: But aren't there things that you can cover
16 that are not police line things?
17 MR. NICHOLAS: The whole reason that I exist, that I
18 get work in the first place is because of my ability to cover
19 breaking news and courts. And everything else is just hand-mes
20 and gravy.
21 THE COURT: But you can still get into courts without
22 a camera. Is that what you're saying?
24 THE COURT: You talked about covering Iowa primaries
25 and primaries from other places. Does the NYPD press pass

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1 actually get you in outside of City of New York?
2 MR. NICHOLAS: It does, your Honor. It's
3 significantly respected throughout the country, and has always
4 been. I was just talking to the historian of the New York
5 Press Photographers Association this morning, and we were
6 talking about the Kennedy assassination. And during Lee Harvey
7 Oswald's perp walk, there were many journalists from New York
8 down there with New York credentials that were honored by the
9 Dallas authorities.
10 THE COURT: That's an interesting example, because it
11 highlights the need for tightly controlled --
12 MR. NICHOLAS: Yeah.
13 THE COURT: -- areas for a perp walk.
14 MR. NICHOLAS: Yeah. Mm-hmm. I agree. I talked at
15 some length to the historian, and he told me about the general
16 history of how press passes came to be. I don't know if your
17 Honor would like to hear that.
18 THE COURT: No, I don't think it's relevant. Do you
19 think it's relevant to your claims?
20 MR. NICHOLAS: Not at this point. Not at this point.
21 But suffice to say, I covered the primaries in 2012, and
22 everywhere I went, the NYPD press pass was respected because it
23 was an officially issued pass with the NYPD seal on it. So it
24 got you into places that -- it marked you as a real journalist
25 as opposed to somebody else. So it was respected throughout

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1 the country.
2 THE COURT: Let me go back again to the hearing issue.
3 I understand your argument about there's no point in pursuing
4 the hearing, but the law does require or does provide for a
5 hearing in a situation where a pass is suspended or denied or
6 revoked. I would think that the normal process -- and tell me
7 why you wouldn't think it would work this way -- is that you go
8 through the hearing process, and then they have to rule on it
9 within five days in the case of a suspension under -- is that
10 right? Yeah -- five business days from the request for --
11 MR. ZUCKERMAN: Your Honor, I think they have to give
12 the hearing within five.
13 THE COURT: That's right. Thanks for clarification.
14 They have to provide the hearing within five days of the
15 request for a hearing. And then, let's say you're right and
16 that you get denied and it's not taken seriously for whatever
17 reason. I would think from that point you could file an
18 Article 78 petition in state court seeking review of the
19 denial. Isn't that how it's supposed to work?
20 MR. NICHOLAS: That's one way to proceed. That's not
21 the constitutionally required way.
22 First of all, we're talking about something that
23 doesn't exist. You can correct me if I'm wrong, Mr. Zuckerman,
24 but the NYPD has never held a hearing when they've revoked
25 credentials. This is an illusory right that appears on paper

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1 alone.
2 THE COURT: How do you know that? That's just --
3 MR. NICHOLAS: Because none of the people who I've
4 known who have had their press credentials yanked have never
5 been afforded a hearing. None of them. They just ignore you
6 when you ask for one, which is exactly they did here.
7 But getting to the core due process issue, we're
8 talking about the -- it's an -- the right to occupational
9 self-determination. It's a core part of the liberty and equal
10 opportunity that the 14th Amendment was designed to protect.
11 The revocation or the impairment of that liberty interest in
12 occupational self-determination is of such weight that it
13 requires predeprivation due process. That's the fundamental
14 argument that I'm making here, your Honor. So whatever the
15 state does afterward doesn't matter. This is the language of
16 Zinermon versus Birch itself. The state can do anything, but
17 once that claim accrues for violation of predeprivation due
18 process, nothing the state does after that can cut that claim
19 off.
20 THE COURT: Okay. That answers my questions. I
21 appreciate it.
22 Do you have anything else you wanted to add?
23 Otherwise, I'll turn to Mr. Zuckerman with my questions for
24 him.
25 MR. NICHOLAS: If I could, your Honor, just a brief

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1 word about the First Amendment implications of this. After I
2 submitted the reply brief in this case, I became aware of a
3 Ninth Circuit decision in Leigh versus Salazar.
4 THE COURT: Would you spell that?
5 MR. NICHOLAS: L-e-i-g-h versus Salazar,
6 S-a-l-a-z-a-r. The cite would be 677 Fed. 3d 892.
7 THE COURT: That's Ninth Circuit?
8 MR. NICHOLAS: Correct, your Honor.
9 THE COURT: Okay.
10 MR. NICHOLAS: In Leigh versus Salazar, your Honor,
11 the Ninth Circuit recognized the line of Supreme Court
12 jurisdictions that established a general right to news
13 gathering. The Supreme Court decisions that created the right
14 to news gathering all arose in the context of access to court
15 proceedings. The significance of the decision in Leigh is that
16 it extends the right to news gathering that was developed in
17 the court context to activities that occur outside the court in
18 other areas that have been considered traditional public fora,
19 such as streets.
20 In Leigh, the Ninth Circuit held that the restrictions
21 on a photo journalist's ability to take images of a
22 government-run horse roundup on public land would subject
23 strict scrutiny. I would submit, your Honor, that in this
24 instance, that the so-called frozen zone should be subjected to
25 strict scrutiny under the Supreme Court's line of news

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1 gathering cases discussed in Leigh, and that under strict
2 scrutiny, the frozen zone fails because Defendant Debonis's
3 affirmation is not sufficiently detailed. Defendant Debonis's
4 affirmation only offers conclusory allegations that safety and
5 security require the creation of a frozen zone. The
6 affirmation does not list or discuss any of the alternatives
7 that may have been considered other than complete closure or
8 denial of access to the press, nor does it state that the
9 restriction was narrowly tailored. For these reasons,
10 Defendant Debonis's affirmation is not sufficient to meet the
11 state's burden under strict scrutiny.
12 THE COURT: Okay.
13 MR. NICHOLAS: Thank you, your Honor.
14 THE COURT: Thank you, Mr. Nicholas.
15 I'll hear from Mr. Zuckerman.
16 MR. ZUCKERMAN: Good afternoon, your Honor. I'm happy
17 to take any questions that your Honor has, given that your
18 Honor has stated that you've read the papers.
19 THE COURT: Yes. Let me start by asking, is it your
20 understanding that Mr. Nicholas never requested a hearing?
21 MR. ZUCKERMAN: Oh, absolutely. I think Mr. Nicholas
22 essentially admitted that he didn't request a hearing. I don't
23 think that an apology email is the functional equivalent or the
24 equivalent in any way of a request for a hearing. There was
25 never any request for a hearing by Mr. Nicholas.

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1 THE COURT: What about on December 1st, an email to
2 Detective Debonis, "Can I come in and talk about my press
3 card?"
4 MR. ZUCKERMAN: Honestly, your Honor, that wasn't
5 submitted with the papers until today. I would still submit
6 that that's not a request for a hearing. I think that the
7 statute talks about a formal hearing, and I think that a
8 request for a hearing is something totally different than
9 coming in and talking about it.
10 THE COURT: What does the hearing look like? What's
11 the -- well, first of all, are the hearings ever done?
12 MR. ZUCKERMAN: As far as I know, they're done. I
13 don't have an answer to the question -- I believe that they're
14 done, but I don't have an answer to your question because it
15 was never posed in the papers whether it was ever done or not
16 done, so I can't tell your Honor conclusively whether it was
17 done or not. But it's certainly in the rules and regulations
18 of the City of New York, and if it was properly requested, it
19 would be done.
20 THE COURT: What would it look like? What would be
21 the process? Who would do it?
22 MR. ZUCKERMAN: Well, the rules talk about the initial
23 hearing conducted by the commanding officer of DCPI.
24 THE COURT: Who is that? Mr. Davis?
25 MR. ZUCKERMAN: No, he's the Commissioner. So the

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1 commanding officer I don't believe would be Mr. Davis.
2 THE COURT: Would it be Mr. Debonis?
3 MR. ZUCKERMAN: I don't believe he's the commanding
4 officer of DCPI. I don't believe that he is.
5 THE COURT: But you don't have any example or
6 precedent for if it's done this way in this room with these
7 people or anything?
8 MR. ZUCKERMAN: I don't.
9 THE COURT: Is it your position that he could still
10 request a hearing? That Mr. Nicholas could still request a
11 hearing tomorrow?
12 MR. ZUCKERMAN: I'm not aware of a statute of
13 limitation on that. I haven't seen that. I'm not aware of a
14 statute of limitation preventing him from requesting the
15 hearing. If there is a statute of limitation, I'm not aware of
16 it as I am here today.
17 THE COURT: And if he requested a hearing tomorrow and
18 got the hearing within five business days, and let's say --
19 well, there could be different outcomes, but let's say the
20 hearing confirmed the suspension or revocation of his press
21 pass. Would he then be able to file an Article 78 from that
22 hearing result?
23 MR. ZUCKERMAN: I would think he could file an Article
24 78. I would think so.
25 THE COURT: Do you have Section 1111?

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1 MR. ZUCKERMAN: I do.
2 THE COURT: I just wanted to make sure I understand
3 how it works under the rule. It says, "Any person who is
4 denied a press credential may appeal and request a hearing
5 within 20 days of the denial."
6 MR. ZUCKERMAN: Right.
7 THE COURT: "The applicant will be notified of a
8 hearing date which shall be no more than 30 days from receipt
9 of the request." Then it goes on with B, it talks about the
10 situation where the press credentials are "summarily
11 suspended", in which case it just says, "It can be requested
12 and the hearing will be provided in five business days."
13 Do you agree that the situation here is in Subsection
14 B?
15 MR. ZUCKERMAN: Yes.
16 THE COURT: So that if he requested it according to
17 this, he would get a hearing within five business days, and
18 then is there a time limit on a written decision?
19 MR. ZUCKERMAN: I thought it was 45 days.
20 THE COURT: Right. Under E, it looks like 45 days.
21 MR. ZUCKERMAN: Right.
22 THE COURT: Do you have any information about how
23 often press passes are summarily suspended or revoked in
24 general?
25 MR. ZUCKERMAN: It's very infrequent. Very, very

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1 infrequent.
2 THE COURT: Do you have any information about how
3 often, based on the number of applications for press passes,
4 they're granted versus denied?
5 MR. ZUCKERMAN: I'm not sure I can speak
6 authoritatively to that. I know very few are revoked, very
7 few.
8 THE COURT: What's your position on why this was
9 revoked in the case of -- I guess suspended in the case -- was
10 it revoked or suspended?
11 MR. ZUCKERMAN: It was summarily suspended. That's
12 the way I would use the term. It was removed from Mr. Nicholas
13 as a result of the violation of the terms of the press pass
14 that was issued to him. The application acknowledgment
15 expressly states that he's not allowed to go into frozen zones,
16 and he was in a frozen zone, and it was exigent circumstances
17 as far as lifesaving techniques being utilized on the injured
18 construction worker, and he interfered with that process. That
19 was the basis for the removal of his press card.
20 THE COURT: What's your answer to the argument that he
21 was in the area but wasn't really on notice of any frozen zone
22 or any particular area to which the press was confined?
23 MR. ZUCKERMAN: Well, my answer is, Mr. Nicholas is
24 very experienced and savvy in this area. He had first been
25 issued a press card I believe in 2007. I think that, based

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1 upon the other people in the -- the only other people in the
2 frozen zone, the first responders, and as your Honor mentioned,
3 representatives of NYPD, New York Fire Department, Building
4 Department, he knew very well what he was doing.
5 We claim that his entry into the frozen zone and
6 photographing from the frozen zone was purposeful, blatant, and
7 egregious, and his apology the next day confirms that. He
8 apologized for his actions. So although it's convenient, you
9 know, nine months later to claim he didn't know about it, I
10 think that, given his experience and the people that he saw in
11 that little area, he knew very well that he was violating the
12 frozen zone.
13 THE COURT: In general, do you know what the standards
14 are for granting or denying press passes? Are they written in
15 the rules anyplace or not?
16 MR. ZUCKERMAN: Well, are you discussing the
17 application for a press card initially?
18 THE COURT: Yes. Let's start with that.
19 MR. ZUCKERMAN: Basically, it's in the rules that your
20 Honor has referred to. But the most important requirement is
21 that in a two-year period, you submit six pieces that evidence
22 your coverage of news, of certain news events over a two-year
23 period of time.
24 THE COURT: So that's to show they're a bona fide
25 journalist, as opposed to someone who is just pretending or

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1 something?
2 MR. ZUCKERMAN: It would make some demonstration as to
3 their conducting activities in the news gathering area.
4 THE COURT: What about the standard for a suspension,
5 summary suspension? Is that a different standard?
6 MR. ZUCKERMAN: I think a summary suspension or
7 removal of a card is, yeah, is based upon just cause for what
8 the state official observed or learned. So I don't know that
9 it's a judicial standard, but it's certainly based upon
10 observation or facts that are learned.
11 THE COURT: But is there a written standard?
12 MR. ZUCKERMAN: I'm not aware of any written standard.
13 It's certainly -- there's nothing in the rules about a written
14 standard for what's necessary to take a summary suspension.
15 THE COURT: The other thing I wanted to ask about is
16 Mr. Nicholas, in his papers, I believe in his complaint, has
17 certain allegations about asking a question of Commissioner
18 Bratton at a press conference, and then some discussion with
19 Detective Debonis immediately after the press conference on, I
20 think it was around October 1st, and that this suspension
21 happened on October 30th. The timing of that would arguably
22 support a First Amendment retaliation-based suspension of the
23 press pass, I would think. What's your response to that?
24 MR. ZUCKERMAN: Well, all I can say is, there was
25 clearly no relationship. Clearly, from October -- if the date

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1 of the news conference is October 1, there was clearly no
2 action taken against Mr. Nicholas or his press card from
3 October 1 to October 29. October 30th, he's in a frozen zone.
4 I don't think that something that would have been planned that
5 way could have been carried out in the emergency nature of what
6 was going on on October 30th. So I think the evidence strongly
7 suggests that what happened on October 30th was based upon
8 Mr. Nicholas photographing from a frozen zone, not some
9 predetermined thought of retaliating based upon a question that
10 was asked at a news conference.
11 THE COURT: Okay.
12 MR. ZUCKERMAN: By the way, in Mr. Debonis's
13 affirmation, he does deny any relationship between the two
14 events.
15 THE COURT: I think that answers my questions.
16 Is there anything else you wanted to add?
17 MR. ZUCKERMAN: I don't think so, your Honor. I am
18 concerned with some of the evidence that was submitted here
19 today that I hadn't had a chance to review or to rebut. I just
20 wanted to make that clear again. Thank you.
21 THE COURT: Okay. Thank you.
22 Well, I also haven't had a chance to review it. I may
23 take a couple days. If you want to submit something in
24 response, you could. But I don't know if you want an
25 opportunity to do that. You may have to look at it first

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1 before you decide.
2 MR. ZUCKERMAN: Yeah. I would have to read it and
3 maybe talk to the client.
4 THE COURT: Mr. Nicholas is there anything you would
5 like to add?
6 MR. NICHOLAS: Yes, your Honor, if I may. Since we've
7 gone into detailed discussion of the frozen zone, I thought
8 relevant sections of the police department regulations
9 governing press access to areas would inform the Court's
10 decision. I've marked these Exhibits G, H, and I. I hand some
11 to the defendant's lawyer, and I'm handing some up to the
12 Court. If I may just take a moment to reply to one or two of
13 the points --
14 THE COURT: Sure.
15 MR. NICHOLAS: -- that Mr. Zuckerman has made.
16 Your Honor, when you asked about standards, you hit
17 the nail right on the head. It's completely standardless
18 discretion that the defendants in this case have. There is
19 the -- in Exhibit D, the comments of the National Press
20 Photographers Association that I handed up earlier, on page 11
21 you'll see that there's a section titled, "Seizure Revocation
22 of Press Credential." And the National Press Photographers
23 Association says, "It has come to our attention at the NPPA
24 that there have been a number of incidents, a number of
25 incidents where members of the press have had their press

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1 credentials taken away from them by members of the NYPD for
2 various reasons. It is our understanding that the process by
3 which members can appeal this action are vague, inconsistent,
4 and arbitrary."
5 THE COURT: What is this organization?
6 MR. NICHOLAS: The National Press Photographers
7 Association, your Honor.
8 THE COURT: This is a comment on a proposed rule?
9 MR. NICHOLAS: That's correct. So that addresses your
10 Honor's concern for the standards that would be applied in the
11 event of a remand to the administrative agency, which, again, I
12 don't think is required, but is certainly within the Court's
13 discretion.
14 I would say that I've made out a sufficient enough
15 case that would require the outright instruction to re-issue
16 the credential.
17 THE COURT: You mentioned a case involving Leonard
18 Levitt in your papers.
20 THE COURT: Was that a FOIL action, or was this an
21 action for return of a press credential?
22 MR. NICHOLAS: The situation with Mr. Levitt is that
23 the former police commissioner, Ray Kelly, demanded that he be
24 silenced and revoked his credential without any kind of due
25 process of law. As I understand it from talking to

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1 Mr. Levitt's colleagues, he went without his press credential
2 for a number of years. They denied him access to 1 Police
3 Plaza, to the press room at 1 Police Plaza known as the shack.
4 They banned him from police headquarters. They revoked his
5 credential. And it wasn't until Bill Bratton became police
6 commissioner that he got his credential back.
7 THE COURT: But do you know what happened. Did the
8 lawsuit ever -- I think I read somewhere that it was settled.
9 Do you know if he got it back as part of a settlement, or was
10 there ever a decision by the courts on that?
11 MR. NICHOLAS: Unaware of what happened on that case.
12 I think I researched that case, and basically, that was an
13 Article 78 that sought to compel the release of the criteria
14 that the police department uses in revoking press credentials.
15 I'm not sure of what the result of that lawsuit was.
16 THE COURT: Do you know, Mr. Zuckerman?
17 MR. ZUCKERMAN: I don't, your Honor.
18 MR. NICHOLAS: The only other case that I'm aware of
19 is the case I cited in my reply brief, which was New York
20 Evening Inquirer versus Kennedy where the Court held, as I
21 argued in my opening papers, that a working press card is the
22 equivalent of a license to practice a trade or profession. So
23 this is 1957, your Honor. I'm not -- you know, the relief that
24 I'm asking for in this case does not plow any new ground.
25 They've known -- the police have known for some time that

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1 they're supposed to hold a hearing when they revoke people's
2 credentials, but they continue to not do that. They continue
3 to deny journalists due process of the law. That's one of the
4 reasons why I'm here today.
5 Thank you, your Honor.
6 THE COURT: Thank you.
7 Let me just clarify for the record. I'll have to rule
8 on what to do with these exhibits. You said the ones you just
9 gave me are G, H, and I?
10 MR. NICHOLAS: That would be from the patrol guide.
11 THE COURT: Right. I want to make sure I have the
12 letters. What exhibit letter was Mr. Vantine's affirmation?
13 MR. NICHOLAS: I didn't attach an exhibit to him
14 because it's just an affirmation.
15 THE COURT: Okay. Plaintiff's Exhibit E is the email
16 you handed up, and Mr. McDermott's affirmation also doesn't
17 have a letter, right?
19 THE COURT: And D was the National Press Photographers
20 Association comment.
21 MR. NICHOLAS: That's correct.
22 THE COURT: All right. Thank you, Mr. Nicholas.
23 MR. NICHOLAS: Thank you, your Honor.
24 MR. ZUCKERMAN: Thank you, your Honor.
25 THE COURT: Did you want to add anything?

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1 MR. ZUCKERMAN: No, your Honor.
2 THE COURT: I'm going to take this under advisement
3 for now.
4 Mr. Zuckerman, once you've had a chance to look at the
5 things he's handed up today, if you want to just submit a
6 letter saying you'd like some time to respond at some point,
7 that's fine, or you don't have to respond. If there's anything
8 you'd like to -- I want to give you a chance to look at it
9 before.
10 MR. ZUCKERMAN: Can I submit the letter by Monday --
11 THE COURT: Sure.
12 MR. ZUCKERMAN: -- if I choose to request some
13 additional time to respond to the new exhibits and
14 affirmations?
15 THE COURT: That's fine. Otherwise, I'll take it
16 under advisement. I'll let you know if I have any other
17 questions for the parties. I appreciate the argument today.
18 It was very helpful.
19 I just want to confirm, Mr. Nicholas, are you now --
20 do you now have access to ECF, our docketing system? There was
21 a notice on ECF that said, I think you had gotten or you
22 requested access.
23 MR. NICHOLAS: I think I have it. I haven't gotten
24 anything yet. I don't think anything's been filed after I got
25 ECF.

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1 THE COURT: Are you able to go on the docket?
2 MR. NICHOLAS: No, because I don't have an account. I
3 can only open what I get sent to me.
4 THE COURT: Okay.
5 MR. NICHOLAS: Am I saying that correctly?
6 THE COURT: I think so.
7 MR. NICHOLAS: But I usually come down to the court
8 and check the docket once a week.
9 THE COURT: I guess you should check with -- do you
10 know there's an ECF Help Desk?
11 MR. NICHOLAS: Okay.
12 THE COURT: If you call the ECF Help Desk in the
13 clerk's office, I think they can help you get access to it. If
14 I have to sign an order or whatever, I will. Otherwise, we'll
15 continue to mail you any orders or anything.
17 THE COURT: Or do you have an email? Is that better?
18 MR. NICHOLAS: I do have an email.
19 THE COURT: Just so it's on the record, why don't you
20 give us your phone number and email.
21 MR. NICHOLAS: Sure, your Honor.
22 THE COURT: Email.
23 MR. NICHOLAS: Jasonbnicholas@gmail.
24 THE COURT: No dots?
25 MR. NICHOLAS: No dots. And by the way, your Honor,

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1 with Gmail, it doesn't matter.
2 THE COURT: I know. I found that out.
3 MR. NICHOLAS: Thank you.
4 THE COURT: Thank you, everyone.
5 (Adjourned)
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G5CONICA

Case 1:15-cv-09592-JPO Document 43 Filed 07/25/16 Page 1 of 36 1

1 UNITED STATES DISTRICT COURT

5 v. 15 Cv. 9592 (JPO)

6 William Bratton Commission,

12 HON. J. PAUL OETKEN,

SOUTHERN DISTRICT REPORTERS, P.C.

1 THE DEPUTY CLERK: Your Honor, this is in the matter

2 of Jason Nicholas versus William Bratton Commissioner, NYPD,

4 Starting with the pro se plaintiff, can I have parties

5 state their appearances for the record, please.

6 MR. NICHOLAS: Good afternoon, your Honor. Jason

8 THE COURT: Good afternoon.

9 MR. ZUCKERMAN: Mark Zukerman from the Office of the

10 Corporation Counsel for the defendants. Good afternoon, your

12 THE COURT: Good afternoon.

13 MR. NICHOLAS: Your Honor, if I just may. I'm sorry.

14 Affiant prospective witness has arrived. I need him to sign an

16 THE COURT: We're here for argument on the motion for

17 preliminary injunction filed by the plaintiff in this case.

19 speak first. If you'd like to go to the podium or if you'd

20 like to stand at the table, whichever is easier for you is

21 fine, just as long as you speak clearly so that the court

22 reporter can take everything down.

23 MR. NICHOLAS: Yes, your Honor. Thank you.

24 Just recently, your Honor, I had the opportunity -- a

25 witness to the case decided to sign an affirmation that I asked

SOUTHERN DISTRICT REPORTERS, P.C.

1 him to previously. I'd like to hand that up for the Court's

2 consideration. I've already provided a copy to Mr. Zuckerman.

3 MR. ZUCKERMAN: I do object on timeliness grounds at

4 this point, your Honor. We're here on oral argument, and

5 they're submitting that. I haven't had a chance to review or

6 rebut, so we do object to this.

7 THE COURT: I'm going to take the affidavit without

8 prejudice to any argument and any supplemental response you

9 might make. I'm not necessarily receiving it, but subject to

10 the objection, I'll receive it.

11 MR. NICHOLAS: In addition, your Honor, there's also

12 comments from the general counsel for the National Press

13 Photographers Association who had the occasion to submit

14 comments to the police department when they amended their

15 regulations in 2010. He couldn't be here today, but he

16 asked -- he provided the written statement that he made to the

17 police department back then, and I would also like that

18 submitted as Defendant's Exhibit D.

19 THE COURT: I'm sorry?

20 MR. NICHOLAS: I'd also like to submit that as

22 THE COURT: Okay.

23 MR. NICHOLAS: Counsel also has a copy of that.

24 THE COURT: Can you hand it up to the deputy?

25 MR. ZUCKERMAN: Same objection. I was handed that

SOUTHERN DISTRICT REPORTERS, P.C.

1 just before this oral argument. I think the submissions are

2 untimely, and I haven't had a chance to review them and rebut

4 THE COURT: I'm going to reserve on the objection, and

5 I have received them provisionally, and I'll determine at a

6 later time whether they're properly received. Subject to that,

8 the two you just handed me. I didn't really schedule a

9 full-blown hearing, I called it oral argument because I wanted

10 to sort of get a few questions answered in terms of background

11 and legal posture we're in.

12 Just to set the stage a little bit -- you can correct

13 me or clarify anything -- but my understanding of what's at