Photo: Shutterstock.com)

Allegations of unconstitutional police intimidation directed against Black Lives Matter activists by members of the Clarkstown police department have survived a motion to dismiss in federal court Wednesday.

While U.S. District Judge Nelson Román of the Southern District of New York did winnow the scope of the group's First and Fourth Amendment claims—including dismissal of the due-process allegations—a half dozen members of the civil rights organization were allowed to continue to pursue their claims over the department's actions in 2015 and 2016.

As Román's order outlines, the suit alleges a police intelligence unit known as SIU began to engage in surveillance of Black Lives Matter as early as January 2015. Members of the group were subject to electronic surveillance of their social media information for intersections with gangs, violence, terrorism, heroine initiative and police riots. Police ultimately found no sign of criminally activity, according to the suit, Black Lives Matter v. Town of Clarkstown 17-cv-06592.

Despite this, and warnings from the Rockland County DA's office that the surveillance was inappropriate, Black Lives Matter members say the Clarkstown police department stationed snipers on nearby roofs during a peaceful rally in July 2016. According to allegations in the amended complaint noted by Román, the plaintiffs claim they witnessed a red dot on the chest of one of the speakers at the event, suggesting police snipers were literally taking aim.

Román ruled that BLM—as a group—lacked standing to sue. While there were claims the surveillance made it difficult for BLM to recruit new members, the claims were made in the response to the dismissal motion, not the amended complaint.

However, Román found the individual members of the group alleged concrete and actual injury, allowing them to proceed.

“The sight of what is purportedly the red dot of a sniper rifle on a member of one's organization is undeniably chilling on both free speech and free association,” Román wrote. “When confronted with this threat of violence from the government at a peaceful Black Lives Matter rally, on top of the illegal surveillance targeted against the group and its members, any reasonable person would think twice before continuing to participate in Black Lives Matter.”

Román agreed that the plaintiffs provided the adequate showing for a First Amendment claim, noting that BLM's focus falls “squarely within matters of public concern,” and that the court has a “solemn responsibility” to uphold and ensure free speech protections of such speech.

Yet when Román reviewed the Fourteenth Amendment claims, the judge found they amounted to little more than a reiteration of the First Amendment claims. Absent any specific due-process allegations, the claims were dismissed.

As part of the dismissal motion, two of the individual defendants in the suit—Clarkstown chief of police Michael Sullivan and sergeant Stephen Cole-Hatchard, who was also director of the SIU—maintained qualified immunity in their official capacities. Since the First Amendment claims survived, and surveillance against BLM solely based on the expression of political opinion remained unlawful during the period in question, Román denied the officers' immunity claims.

“No reasonable official would have thought engaging in surveillance and intimidation based solely on Plaintiffs' membership in Black Lives Matter was lawful,” Román said, noting that no facts were offered to support the claim in the face of the amended complaint.

The judge did, however, agree to remove Sullivan as a defendant, as the plaintiffs failed to address claims the police chief was not personally involved in the SIU's allegedly illegal activity directed at the BLM members. The judge did however offer the plaintiffs the chance to file another amended complaint to address the issue.

Private attorney William Wagstaff III represented the BLM plaintiffs in the suit. In a statement, he said he was elated by the judge's decision, as it will ensure his clients “get their day in court.”

“Further, it sends a resounding message that Black Lives Matter and when the rights of its members are violated the United States Constitution will allow their voices to be heard,” he said.

Sullivan's counsel, Sokoloff Stern name attorney Steven Stern, said that while he was pleased the court dismissed the allegations against his client, the defendants “continue to believe the case has no merit, as the SIU did nothing wrong by reviewing publicly available social media information[.]”

“ [W]e understand at this stage the Court was required to take the allegations at face value,” Stern said in the emailed statement.

Wilson Elser Moskowitz Edelman & Dicker partner John Flannery led efforts for the Town of Clarkstown.  He did not immediately responded to a request for comment.

Related:

Black Lives Matter Suit Claims Cops Surveilled Rockland Chapter

Protesters Object to Prosecution by NYPD Attorneys

NYPD Rescinds Police-as-Prosecutors Agreement With Manhattan DA