Case 1:05-cv-04949-RJS-JCF Document 109
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
_____________________
No 05 Civ. 4949 (RJS)
_____________________
MICHAEL MARCAVAGE and STEVEN C. LEFEMINE,
Plaintiffs,
VERSUS
THE CITY OF NEW YORK, ET AL.,
Defendants.
___________________
MEMORANDUM AND ORDER
September 29, 2010
___________________
RICHARD J. SULLIVAN, District Judge:
Plaintiffs Michael Marcavage
(“Marcavage”) and Steven C. Lefemine
(“Lefemine”) bring this action against
Defendants the City of New York (the “City”)
and Captain Raymond Staples (“Staples”),
alleging violations of their rights under the
First, Fourth, and Fourteenth Amendments to
the United States Constitution.
During the 2004 Republican National
Convention (the “RNC”), Plaintiffs were
arrested by the New York Police Department
(the “NYPD”) for failing to comply with
orders to relocate from a public sidewalk
adjoining Madison Square Garden, where they
were carrying anti-abortion signs, to a
designated “demonstration area” located two
blocks away. Plaintiffs assert (1) that the
City’s policy violated the First Amendment by
imposing an invalid time, place, or manner
restriction on the availability of a public forum,
and (2) that their arrest constituted an unlawful
seizure under the Fourth Amendment.
Plaintiffs bring both of these federal claims
pursuant to 42 U.S.C. § 1983.
Before the Court is Defendants’ motion for
summary judgment pursuant to Rule 56 of the
Federal Rules of Civil Procedure. For the
reasons set forth below, Defendants’ motion is
granted.
Case 1:05-cv-04949-RJS-JCF Document 109
I. BACKGROUND
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The parties estimate that up to 1,300 trains and
600,000 riders pass through Penn Station each
day. (Id. ¶¶ 10-11.) A “major event” at
Madison Square Garden “can add thousands of
additional pedestrians to the walkways in that
immediate vicinity.” (Id. ¶ 9.)
This action is part of a larger group of
cases relating to mass protests that occurred
during the RNC, which was held at Madison
Square Garden from August 30, 2004 to
September 2, 2004. (Defs.’ 56.1 ¶ 1.)1 These
cases have been assigned to this Court as
related and consolidated for discovery
purposes. The Court presumes the parties’
familiarity with the facts and procedural
history of this action. Accordingly, the Court
will briefly recite only those facts necessary to
the resolution of Defendants’ present motion.
2. Security Measures During the RNC
As the lead local law enforcement agency,
the NYPD was responsible for ensuring the
safety of the 50,000 people who were expected
to participate in the RNC, as well as New York
City’s own citizens, visitors, and property. (Id.
¶¶ 32-33.) Planning for the event began in
early 2003 and involved numerous logistical
considerations. (Id. ¶¶ 2-3.) First, “the NYPD
anticipated that New York City . . . would see a
volume of protest activity not seen in decades,”
including “potentially hundreds of thousands
of protestors.” (Id. ¶¶ 13-14.) Second, “the
NYPD understood that political conventions
are potential terrorist targets and had to prepare
for the possibility of groups and individuals
who sought to engage in criminal conduct that
could significantly endanger public safety.”
(Id. ¶ 30.) Finally, the NYPD was responsible
for “minimizing inconvenience to commuters,
businesses and residents in the vicinity” of
Madison Square Garden. (Id. ¶ 34.)
A. Facts2
1. Madison Square Garden and the
Surrounding Area
Madison Square Garden is located in
midtown Manhattan and sits atop Pennsylvania
Station (“Penn Station”), one of New York
City’s central transportation hubs. (Id. ¶¶ 6,
10.) Although the parties dispute Madison
Square Garden’s precise location (id. ¶ 6; Pls.’
56.1 ¶ 6), they agree that this area,
“particularly the streets, avenues and
walkways in the immediate vicinity of
[Madison Square Garden], is extremely
congested with both vehicle and pedestrian
traffic on a routine basis.” (Defs.’ 56.1 ¶ 8.)
The NYPD implemented various security
measures in and around Madison Square
Garden, including (1) a “demonstration area”
beginning at Eighth Avenue and 31st Street
and extending southward; (2) a “frozen zone”
on the west sidewalk of Seventh Avenue
between 31st and 33rd Streets; and (3) a “no
standing” or “no expressive activity” zone on
the east sidewalk of Seventh Avenue between
31st and 33rd Streets.
1
Throughout this opinion, the Court refers to Plaintiffs’
and Defendants’ Local Rule 56.1 statements as “Pls.’
56.1” and “Defs.’ 56.1.” The Court also refers to
Defendants’ memorandum of law in support of the
motion for summary judgment as “Defs.’ Mem.” and to
Plaintiffs’ memorandum of law in opposition to the
motion for summary judgment as “Pls.’ Opp’n.”
2
The following facts are taken from the pleadings, the
parties’ Local Rule 56.1 statements, and the exhibits
attached thereto. The facts are undisputed unless
otherwise noted. Where only one party’s Rule 56.1
statement is cited, the opposing party does not dispute
that fact or has offered no admissible evidence to
controvert it.
2
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NYPD also closed two of the entrances to
Penn Station.3 (Id. ¶ 37.)
a. The “Demonstration Area”
In order to accommodate the expected
volume of protest activity, the NYPD closed
Eighth Avenue to vehicular traffic and created
a “demonstration area,” which began at Eighth
Avenue and 31st Street and extended south
along Eighth Avenue. (Id. ¶¶ 19-20, 25.) The
demonstration area encompassed the entire
width of the Eighth Avenue roadway. (Id. ¶
20.) The parties dispute whether this location
was within “sight and sound” of Plaintiffs’
“intended audience.” (Pls.’ 56.1 ¶ 18.)
c. The “No Standing” or “No Expressive
Activity” Zone
The parties disagree as to the policy that
governed the east sidewalk of Seventh Avenue
between 31st and 33rd Streets. Defendants
represent that a “no standing” policy governed
this area, under which “pedestrians were
permitted to walk but were required to keep
moving and not to congregate.” (Id. ¶¶ 40-41.)
Plaintiffs argue that a “no expressive activity”
policy governed this area, such that pedestrians
were not allowed to engage in any
demonstration or protest activity on the
sidewalk, whether stationary or moving. (Pls.’
56.1 ¶ 40.) Both parties agree that pedestrians
were not permitted to step into the street or to
cross Seventh Avenue between 31st and 33rd
Street, except at the intersection of Seventh
Avenue and 32nd Street, and that barriers were
erected along the east side of the Seventh
Avenue curb line to enforce this prohibition.
(Defs.’ 56.1 ¶¶ 43-44.)
Individuals were permitted to engage in
expressive activity within the demonstration
area at any time during the RNC. (Defs.’ 56.1
¶ 23.) The NYPD monitored the space both to
ensure that the area was safe for everyone who
wished to participate and to extend the area
southward along Eighth Avenue to
accommodate additional protestors as
necessary. (Id. ¶¶ 20, 26, 28-29.) The NYPD
also issued sound permits and arranged for the
placement of a stage at the northern end of the
demonstration area for any group that chose to
use it during an event or protest. (Id. ¶ 22.)
The demonstration area was used by
“thousands of individuals” during the RNC.
(Id. ¶ 27.)
d. Effect on Commuters to Penn Station
The RNC security measures affected
commuters who utilized Penn Station to access
the Amtrak, Long Island Railroad, and New
Jersey Transit rail lines, and the Seventh and
Eighth Avenue subway lines. (Id. ¶ 10.) Due
to the entrance closures and the barriers erected
along Seventh Avenue, the crosswalk at
Seventh Avenue and 32nd Street “became the
primary point of ingress and egress to that
venue for thousands of pedestrians and
b. The “Frozen Zone”
The NYPD implemented a “frozen zone”
that prohibited pedestrian traffic on the west
sidewalk of Seventh Avenue between 31st and
33rd Streets and erected barriers along the west
side of the Seventh Avenue curb line to
enforce this prohibition. (Id. ¶¶ 38-39.) The
3
Specifically, the NYPD closed the entrances located at
Eighth Avenue and 31st Street and at Eighth Avenue and
33rd Street. (Defs.’ 56.1 ¶ 37.)
3
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commuters on a daily basis.” (Id. ¶ 48.) For
that reason, “it was critically important to keep
that artery of pedestrian traffic . . . fully open
and unimpeded.” (Id. ¶ 49.)
adjournment in contemplation of dismissal for
his charge of disorderly conduct. (Id. ¶ 144.)
3. Plaintiffs’ Arrest
Plaintiffs commenced this action by filing
a complaint pursuant to 42 U.S.C. § 19834 on
May 17, 2005. By Order dated September 21,
2005, this action was consolidated with 43
other cases – involving approximately 226
named plaintiffs – related to RNC protest and
arrest activity. (Doc No. 6.) The consolidated
actions were referred to the Honorable James
C. Francis, Magistrate Judge, for discovery
purposes.
Discovery in the consolidated
actions has yet to be completed.
B. Procedural History
On September 1, 2004, NYPD officers
approached Plaintiffs on the east sidewalk of
Seventh Avenue between 32nd Street and 33rd
Street, where each was carrying an antiabortion sign inside the “no standing” or “no
expressive activity” zone. (Pls.’ 56.1 ¶¶ 7273.) The approximate dimensions of the signs
were 4 feet by 6 feet and 3 feet by 5 feet. (Id. ¶
73.) After being told to remove their signs,
Plaintiffs – who were surreptitiously recording
the verbal exchange – asked the officers where
they could go to be within “sight and sound” of
the RNC attendees. (Doc No. 73, Leist Decl.
Ex. Q (“Audio Recording”).) Officers then
directed them to the demonstration area on
Eighth Avenue and 31st Street.
(Id.)
Although Plaintiffs countered that they would
not be within “sight and sound” of the RNC
attendees in the demonstration area, the
officers repeated their instruction for Plaintiffs
to leave the area. (Id.) Plaintiffs then began
questioning the officers about the legal
authority under which they were being asked
to move. (Id.) In total, Plaintiffs were given 17
separate orders to leave by three different
police officers, the last of whom was Captain
Staples.
(Id.)
Ultimately, Staples told
Plaintiffs they were “blocking traffic with the
sign” and placed them under arrest. (Id.)
Defendants moved for summary judgment
on December 1, 2008, Plaintiffs submitted
their opposition brief on January 26, 2009, and
the motion was fully briefed as of March 6,
2009. The Court heard oral argument on
September 22, 2009.
II. LEGAL STANDARD
The standard for summary judgment is
well settled. Under Rule 56(c)(2) of the
Federal Rules of Civil Procedure, summary
judgment “should be rendered if the pleadings,
the discovery and disclosure materials on
file . . . show that there is no genuine issue as
to any material fact and that the movant is
entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(c)(2); see Celotex Corp. v.
4
Section 1983 creates a private cause of action against
state officials for “the deprivation of any rights,
privileges, or immunities secured by the Constitution and
laws.” 42 U.S.C. § 1983 (2006). This action alleges
Fourteenth Amendment violations because the
Fourteenth Amendment is commonly understood to
incorporate both the First and Fourth Amendments
against the states.
Both Marcavage and Lefemine were
charged with disorderly conduct, and
Marcavage was also charged with resisting
arrest. (Defs.’ 56.1 ¶¶ 141, 143.) All charges
against Marcavage were ultimately dismissed.
(Id. ¶ 142.)
Lefemine accepted an
4
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blanket “no expressive activity” rule on a
public sidewalk and directing protestors to a
demonstration area two blocks from the main
entrance to Madison Square Garden.
Catrett, 477 U.S. 317, 322-23 (1986). The
moving party bears the burden of proving that
there is no genuine issue of material fact.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
256 (1986).
1. Applicable Law
In ruling on a motion for summary
judgment, the court must resolve any
ambiguity in favor of the nonmoving party.
Amnesty Am. v. Town of W. Hartford, 361 F.3d
113, 122 (2d Cir. 2004). The court “is not to
weigh the evidence but is instead required to
view the evidence in the light most favorable
to the party opposing summary judgment, to
draw all reasonable inferences in favor of that
party, and to eschew credibility assessments
. . . .” Weyant v. Okst, 101 F.3d 845, 852 (2d
Cir. 1996). As a result, summary judgment
will not issue where “the evidence is such that
a reasonable jury could return a verdict for the
nonmoving party.” Anderson, 477 U.S. at 248.
However, “a complete failure of proof
concerning an essential element of the
nonmoving party’s case” renders summary
judgment proper. Celotex, 477 U.S. at 323.
The extent to which the government can
restrict expressive activity on public property
turns on the nature of the speech and the nature
of the forum at issue. See Cornelius v. NAACP
Legal Def. & Educ. Fund, Inc., 473 U.S. 788,
797 (1985). Because the type of religious and
political advocacy exercised by Plaintiffs is
fully protected by the First Amendment, the
Court proceeds to the forum inquiry. See
Capitol Square Review & Advisory Bd. v.
Pinette, 515 U.S. 753, 760 (1995).
The “forum-based approach” to evaluating
speech restrictions divides public property into
three categories: (1) the traditional public
forum, (2) the designated public forum, and (3)
the nonpublic forum. Int’l Soc’y for Krishna
Consciousness, Inc. v. Lee, 505 U.S. 672, 67879 (1992). There is no dispute that the public
streets and sidewalks of New York City fall
into the first category, since public sidewalks
are considered the “prototypical example of a
traditional public forum.”
Schenck v.
Pro-Choice Network of W. N.Y., 519 U.S. 357,
377 (1997); see also Loper v. New York City
Police Dep’t, 999 F.2d 699, 704 (2d Cir. 1993)
(“The sidewalks of the City of New York fall
into the category of public property
traditionally held open to the public for
expressive activity.”).
III. DISCUSSION
The instant motion for summary judgment
concerns two constitutional claims: (1) that the
City’s demonstration policy during the RNC
violated the First Amendment, and (2) that the
arrest of Plaintiffs on September 1, 2004
violated the Fourth Amendment.5 The Court
will consider each claim in turn.
A. First Amendment Claim
Plaintiffs allege that Defendants violated
their First Amendment rights by imposing a
As a general matter, “[s]peech finds its
greatest protection in traditional public fora.”
Make the Road by Walking, Inc. v. Turner, 378
F.3d 133, 142 (2d Cir. 2004). However, “even
in a public forum the government may impose
5
Plaintiffs have abandoned all other claims raised in the
original Complaint. (Oral Argument Tr. 3:10-9:14,
September 22, 2009 (“Oral Argument Tr.”).)
5
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New York City “certainly has a significant
interest in keeping its public spaces safe and
free of congestion.” Bery v. City of New York,
97 F.3d 689, 697 (2d Cir. 1996); see
Mastrovincenzo v. City of New York, 435 F.3d
78, 100 (2d Cir. 2006) (finding that “reducing
sidewalk and street congestion in a city with
eight million inhabitants” constitutes a
significant government interest). That interest
was amplified in this case, where a highly
charged political event was expected to attract
up to 50,000 participants and 250,000
protestors to an “extremely congested” area
near Penn Station. (Defs.’ 56.1 ¶¶ 8, 15, 33).
reasonable restrictions on the time, place or
manner of protected speech . . . .” Ward v.
Rock Against Racism, 491 U.S. 781, 791
(1989). To withstand constitutional scrutiny,
such restrictions must “(1) [be] content neutral,
in that they target some quality other than
substantive expression; (2) [be] narrowly
tailored to serve a significant governmental
interest; and (3) permit alternative channels for
expression.
This standard is commonly
referred to as intermediate scrutiny.” Deegan
v. City of Ithaca, 444 F.3d 135, 142 (2d Cir.
2006) (citation omitted).
In this case, Plaintiffs conceded at oral
argument that the policy at issue is content
neutral.
(Oral Argument Tr. 7:13-22.)
Accordingly, the Court will assess the
constitutionality of the City’s RNC
demonstration policy under the second and
third prongs of the intermediate scrutiny
standard.
Plaintiffs concede the existence of a
legitimate government interest, but
characterize the City’s demonstration policy as
a “blanket speech restriction” that was
impermissibly overbroad. (Pls.’ Opp’n 19.)
Because any ambiguity must be resolved in
favor of the nonmoving party, the Court adopts
Plaintiffs’ view of the policy as a “complete
ban on expressive activity” for purposes of the
summary judgment inquiry. (Pls.’ Opp’n 17.)
Thus, the relevant question is whether the
alleged “no expressive activity” policy was
narrowly tailored to promote the City’s
interests in alleviating sidewalk congestion and
ensuring public safety.
2. Analysis
a. Narrow Tailoring
“‘In a First Amendment challenge, the
government bears the burden of showing that
its restriction of speech is justified under the
traditional “narrowly tailored” test.’” Deegan,
444 F.3d at 142 (quoting United States v. Doe,
968 F.2d 86, 90 (D.C. Cir. 1992). The narrow
tailoring requirement is satisfied where the
challenged regulation “promotes a substantial
government interest that would be achieved
less effectively absent the regulation, and the
means chosen are not substantially broader
than necessary to achieve that interest.” Ward,
491 U.S. at 782-83. Thus, the threshold
inquiry for narrow tailoring analysis requires
the identification of a substantial government
interest.
To be narrowly tailored, a content-neutral
regulation need not be “the least restrictive or
least intrusive means of achieving the stated
government interest.” Mastrovincenzo, 435
F.3d at 98 (internal citation and quotation
marks omitted). Rather, a time, place or
manner restriction “will be considered
narrowly tailored unless ‘a substantial portion
of the burden on speech does not serve to
advance its goals.’” Id. (quoting Ward, 491
U.S. at 799); see Vincenty v. Bloomberg, 476
F.3d 74, 84-85 (2d Cir. 2007). Determining
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whether a particular regulation complies with
the narrow tailoring requirement necessarily
“involves a fact specific and situation specific
inquiry.” Deegan, 444 F.3d at 142. For the
following reasons, the Court finds that the
City’s policy was narrowly tailored to the
significant government interests raised by the
specific venue and context of the 2004 RNC.
alone. (Id. ¶ 15.) As a political convention
featuring appearances by the President, Vice
President, and other government leaders, the
RNC was also considered a “potential terrorist
target.” (Id. ¶ 30.) Taken together, these facts
support the proposition that the RNC presented
unique security challenges and required
advance security measures.
First, the choice of Madison Square
Garden as the RNC venue posed unique
policing challenges and security vulnerabilities
due to its proximity to Penn Station. (Defs.’
56.1 ¶ 12). As previously stated, up to 600,000
riders and 1,300 trains pass through Penn
Station on an average day. As many as 50,000
additional people were expected to participate
in the RNC, including approximately 2,509
delegates, 2,344 alternates, and 15,000
members of the press. (Id. ¶ 33.) As a result,
the NYPD expected “the sheer size of the RNC
event [to] place a tremendous strain on the
department’s resources and severely impact
vehicular and pedestrian traffic flow
throughout the City.” (Id. ¶ 7.)
Second, the speech regulations designed to
address these security challenges were limited
in both range and duration. The challenged
“no expressive activity” policy affected only
the two-block stretch of Seventh Avenue that
directly faced Madison Square Garden and the
main entrance to Penn Station, which became
“the primary point of ingress and egress to that
venue for thousands of pedestrians and
commuters” throughout the RNC. (Id. ¶ 48.)
The restriction was in force only for the
duration of the RNC, from August 30, 2004, to
September 2, 2004. (Id. ¶¶ 1, 50.) In light of
these physical and temporal limitations, it is
clear that the City’s policy was customized to
the particular venue and the particular interests
at stake.
While Plaintiffs do not dispute these
numbers, they argue that any major event at
Madison Square Garden can add thousands of
people to the area (Pls.’ Opp’n 2) and that the
average daily attendance at the RNC was “less
than the full capacity attendance at a basketball
game” (Pls.’ 56.1 ¶ 171). But the RNC was no
“major event” of the New York Knicks game
variety. Madison Square Garden was expected
to be the focal point for “large-scale protests
and demonstrations” during the RNC,
involving “potentially hundreds of thousands
of protestors” and a “volume of protest activity
not seen in decades.” (Defs.’ 56.1 ¶¶ 13-17).
Organizers of the United for Peace and Justice
anti-war march predicted that 250,000 people
would participate in their march and rally
Rather than confront these daunting facts
and competing interests, Plaintiffs have opted
to embrace a simpler – and simplistic –
narrative of events. Their version of the story
includes only two individuals peacefully
holding signs on a public sidewalk. (Pls.’
Opp’n 1
(“As the Plaintiffs peacefully
communicated their message, not a single
person was impeded or even
inconvenienced.”).) According to Plaintiffs,
the fact that their sidewalk of choice happened
to border the site of massive political
demonstrations is immaterial, since Plaintiffs
themselves “were not part of a large-scale
protest.” (Pls.’ 56.1 ¶ 17.) Similarly, the fact
that 250,000 protestors were expected to
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b. Alternate Channels
participate in the United for Peace and Justice
anti-war march is also immaterial, because
“there is no evidence that this march was
predicted to take place on the sidewalk where
the Plaintiffs were arrested.” (Id. ¶ 15
(emphasis added).)
A reasonable time, place, or manner
restriction on protected speech must leave
open alternate channels of communication.
Ward, 491 U.S. at 791.
A reasonable
restriction “may reduce to some degree the
potential audience for [the restricted] speech,”
provided “there has been no showing that the
remaining avenues of communication are
inadequate.” Id. at 802.
In essence, Plaintiffs claim a constitutional
exemption from the City’s speech regulation
by virtue of their individual status.
Abandoning common sense, Plaintiffs argue
that “[t]here’s a legitimate government interest
to keep people from congregating in large
groups, but there’s no legitimate interest in
keeping one or two people from being on the
sidewalk.” (Oral Argument Tr. 61:17-20.) But
such a distinction would require police officers
to determine which individuals on a crowded
sidewalk were protesting as individuals and
which were protesting as part of a group. A
policy that permitted one hundred individuals
to protest on a particular sidewalk but barred a
group of the same number from the same acts
would hardly qualify as a reasonable speech
restriction and would undoubtedly degenerate
into chaos in its application.
The alternate channel available here was
the demonstration area located at Eighth
Avenue and 31st Street. Plaintiffs argue that
this alternative was constitutionally inadequate
because it was not within “sight and sound” of
their intended audience. (Pls.’ Opp’n 21.) For
the following reasons, the Court disagrees with
that conclusion.
First, the alternate channels inquiry “does
not depend on the preference of the speaker for
one method” of communication over another.
Irish Lesbian & Gay Org. v. Giuliani, 918 F.
Supp. 732, 744 (S.D.N.Y. 1996). As a
constitutional matter, Plaintiffs simply are not
entitled “access to every or even the best
channels or locations for their expression.”
Carew-Reid v. Metro. Transp. Auth., 903 F.2d
914, 919 (2d Cir. 1990); see Mastrovincenzo,
435 F.3d at 101 (“The requirement that ‘ample
alternative channels’ exist does not imply that
alternative channels must be perfect substitutes
for those channels denied to plaintiffs by the
regulation at hand.”). Rather, the alternate
channel is reasonable where it allows Plaintiffs
“ample opportunity to express [their] views in
close proximity” to the targeted venue. United
for Peace & Justice v. City of New York, 243
F. Supp. 2d 19, 29 (S.D.N.Y. 2003).
Because of the unique policing challenges
posed by the RNC venue and the customized
nature of the corresponding security measures,
the Court finds that the City’s demonstration
policy was narrowly tailored to promote
significant government interests in public
safety and convenience during the RNC.
Because Plaintiffs fail to acknowledge or
engage the “situation specific inquiry” of
intermediate scrutiny, Deegan, 444 F.3d at
142, the Court also finds that Plaintiffs’
proposed alternative is neither reasonable nor
constitutionally required.
8
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In this case, the demonstration area was
certainly within sight and sound of Madison
Square Garden. Although Plaintiffs purport to
dispute this point (Pls.’ 56.1 ¶ 97), their own
submissions (including a Google map and
satellite photograph of the area) make clear
that the demonstration area directly faced the
southwest corner of Madison Square Garden.
(Doc. No. 83, Raum Decl. Exs. A-B.)
Pursuant to Rule 201(b) of the Federal Rules of
Evidence, the Court takes judicial notice of
that fact. Fed. R. Evid. 201(b).
Filed 09/30/10 Page 9 of 12
Second, Plaintiffs’ heavy reliance on the
term “sight and sound” is misplaced as a
matter of constitutional law.
Although
Plaintiffs repeatedly invoked the phrase on the
day of their arrest (Audio Recording), in their
Court submissions (Pls. Opp’n 21), and at oral
argument (Oral Argument Tr. 70:3-8, 71:1-15),
the term appears to find no analytic
significance in the First Amendment
jurisprudence of the Supreme Court or the
Second Circuit.8
The expression finds more prominent use
in a First Circuit case, Bl(a)ck Tea Society v.
City of Boston, in which appellant challenged
the demonstration zone established during the
2004 Democratic National Convention. 378
F.3d 8 (1st Cir. 2004). Appellant argued that
“these alternatives were not sufficient because
none of them were within sight and sound of
the delegates.” Id. at 14. The First Circuit
disagreed, holding that even the “heavily
secured space” of the DNC demonstration
zone9 “did provide an opportunity for
Over the course of the RNC, tens of
thousands of protesters engaged in anti-war,
labor, human rights, and other political rallies
within the demonstration area.6 News reports
also documented various protests in Chelsea,
Harlem, Midtown, Queens, Union Square, and
other locations across the City.7 Thus, while
Plaintiffs undoubtedly preferred their chosen
spot on Seventh Avenue to the designated
demonstration area on Eighth Avenue or other
locations around the City, their stated
preference “does not . . . negate the fact that
significant alternative channels exist[ed].”
United for Peace & Justice, 243 F. Supp. 2d at
30.
8
The phrase appears in passing in Jonathan v. Bax, 63
F.3d 154, 156-57 (2d Cir. 1995), and in New Alliance
Party v. Dinkins, 743 F. Supp. 1055, 1056 (S.D.N.Y.
1990), but neither case defines or discusses the phrase at
any length. See generally Am. Civil Liberties Union of
Colorado v. City & County of Denver, 569 F. Supp. 2d
1142, 1180-81 (D. Colo. 2008), for a discussion of the
term’s ambiguous origins and definition.
6
See, e.g., Randal C. Archibold, Protesters Try to Get
In Last Word Before Curtain Falls, N.Y. Times, Sept. 3,
2004; Jacob Gershman, Garden Infiltrated, N.Y. Sun,
Sept. 2, 2004; William K. Rashbaum, Man Is Charged
In Attack On Detective During Protest, N.Y. Times,
Sept. 2, 2004.
9
7
See, e.g., Jorge Fitz-Gibbon, Michael Gannon &
Joseph Ax, The Protests, The Journal News
(Westchester County, N.Y.), Sept. 3, 2004; Stephan C.
Friedman, Jennifer Fermino & Dan Mangan, Sneak
“Attack” – Disguised Activists in Gala Security Breach,
N.Y. Post, Sept. 2, 2004; Robert D. McFadden, Vast
Anti-Bush Rally Greets Republicans in New York, N.Y.
Times, Aug. 30, 2004.
9
[The DNC demonstration zone] comprised a
heavily secured space, approximately 90 feet by
300 feet, located for the most part underneath
unused rail tracks. It was surrounded by two
rows of jersey barriers topped with eight-foot
chain-link fencing; the perimeter was further
surrounded by a semitransparent liquid dispersion
mesh fabric; and a widely-woven mesh fabric was
hung above the [demonstration zone] between the
rail tracks and the fence. Finally, the City placed
coiled razor wire along the edges of the rail tracks
in the vicinity . . . in order to inhibit access to the
tracks.
Case 1:05-cv-04949-RJS-JCF Document 109
expression within sight and sound of the
delegates, albeit an imperfect one.” Id. at 11,
14. Moreover, the First Circuit found that
“although the opportunity to interact directly
with the body of delegates by, say, moving
among them and distributing literature, would
doubtless have facilitated the demonstrators’
ability to reach their intended audience, there is
no constitutional requirement that
demonstrators be granted that sort of
particularized access.” Id.
Filed 09/30/10 Page 10 of 12
violated their Fourth Amendment rights by
arresting them “without probable cause,
without legal authority, and without a
warrant.”11 (Compl. ¶ 36.)
1. Applicable Law
“[A] warrantless arrest by a law officer is
reasonable under the Fourth Amendment
where there is probable cause to believe that a
criminal offense has been or is being
committed.” Devenpeck v. Alford, 543 U.S.
146, 152 (2004). To determine whether
probable cause exists, the Court “must
examine the events leading up to the arrest,
and then decide whether these historical facts,
viewed from the standpoint of an objectively
reasonable police officer, amount to probable
cause.” Maryland v. Pringle, 540 U.S. 366,
371 (2003) (citation and internal quotation
marks omitted). Although the probable cause
standard is “incapable of precise definition,”
id., the inquiry “depends upon the reasonable
conclusion to be drawn from the facts known
to the arresting officer at the time of the
arrest,” Devenpeck, 543 U.S. at 152. “The
existence of probable cause to arrest
constitutes justification and is a complete
defense to an action for false arrest . . . .”
Weyant, 101 F.3d at 852 (citation and internal
quotation marks omitted).
Thus, while many RNC demonstrators
may have preferred to roam freely through the
sidewalks adjoining Madison Square Garden
or the corridors of the venue itself, the First
Amendment does not guarantee that degree of
access.10 Whatever the legal or practical
parameters of the term “sight and sound,” there
is no constitutional entitlement to see the
whites of the eyes of one’s intended audience.
In summary, the Court finds that the
City’s policy was a reasonable and narrowlytailored time, place, and manner restriction,
and that the demonstration area constituted an
alternate channel of communication sufficient
to facilitate expressive activity by Plaintiffs
and other protestors at the RNC.
B. Fourth Amendment Claim
Plaintiffs also allege that Defendants
11
Defendants argue that Plaintiff Lefemine has waived
his right to bring a false arrest claim because he accepted
an adjournment in contemplation of dismissal for his
disorderly conduct charge. (Defs.’ Mem. 13.) The
Court disagrees, since a Section 1983 claim for false
arrest under the Fourth Amendment does not require
“favorable termination of the judicial proceedings”
against the accused. Weyant, 101 F.3d at 853. The
Second Circuit case Defendants cite to the contrary,
Roesch v. Otarola, 980 F.2d 850 (2d Cir. 1992), is
specifically distinguished in Weyant v. Okst. 101 F.3d at
853.
Bl(a)ck Tea Society, 378 F.3d at 11.
10
Plaintiffs cite Bery v. City of New York, 97 F.3d 689
(2d Cir. 1996), for the proposition that “people have a
right to communicate to their intended audience.” (Oral
Argument Tr. 67:19-68:12). Although Bery held that
“the sidewalks of the City must be available for
appellants to reach their public audience,” that holding
does not support the proposition that Plaintiffs have a
constitutional claim to this particular sidewalk. Bery, 97
F.3d at 698.
10
Case 1:05-cv-04949-RJS-JCF Document 109
2. Analysis
Filed 09/30/10 Page 11 of 12
disperse. (Defs.’ Mem. 5-6.) Defendants also
contend that probable cause existed to arrest
Marcavage for sitting on the ground “in
protest” after he had been told to move. (Id. at
6.)
Defendants claim that probable cause
existed to arrest Plaintiffs for (1) disorderly
conduct under N.Y. Penal Law §§ 240.20(5)(6);12 (2) obstruction of governmental
administration under N.Y. Penal Law
§ 195.05;13 (3) obstruction of governmental
administration under NYC Charter § 435(a);14
and (4) failure to comply with lawful orders to
Plaintiffs dispute each of these arguments
in turn. First, they contest the disorderly
conduct charge, arguing that the jury should
decide whether it was objectively reasonable to
believe that two men could obstruct pedestrian
traffic on a city block that was closed to
vehicular traffic and in use as a pedestrian
walkway. (Pls.’ Opp’n 9-10.) Second, they
challenge the characterization of Plaintiffs’
conduct as obstruction, noting that their
conversation with Staples lasted “only thirty
seconds” and was premised on the honest
belief that the order to disperse was unlawful.
(Id. at 10.) Finally, Plaintiffs maintain that
they complied with police orders and were en
route to the demonstration area when they
were arrested. (Id. at 11.)
12
A person is guilty of disorderly conduct when,
with intent to cause public inconvenience,
annoyance or alarm, or recklessly creating a
risk thereof . . . (5) he obstructs vehicular or
pedestrian traffic; or (6) he congregates with
other persons in a public place and refuses to
comply with a lawful order of the police to
disperse.
N.Y. Penal Law §§ 240.20(5)-(6) (McKinney 2010).
13
A person is guilty of obstructing governmental
administration when he intentionally obstructs,
impairs or perverts the administration of law or
other governmental function or prevents or
attempts to prevent a public servant from
performing an official function, by means of
intimidation, physical force or interference, or
by means of any independently unlawful
act . . . .
N.Y. Penal Law § 195.05 (McKinney 2010).
Despite these objections, the Court finds
no genuine disputed issue of material fact to
suggest that the decision to arrest Plaintiffs was
objectively unreasonable. “An officer has
probable cause to arrest for obstructing
governmental administration where a person
refuses to comply with an order from a police
officer.” Johnson v. City of New York, No. 05
Civ. 7519 (PKC), 2008 WL 4450270, at *10
(S.D.N.Y. Sept. 29, 2008); see Lennon v.
Miller, 66 F.3d 416, 424 (2d Cir. 1995)
(finding probable cause for arrest where
plaintiff refused to follow officer’s order to
leave her vehicle). In this case, the Audio
Recording provides clear evidence that three
different police officers ordered Plaintiffs to
leave the area at least 17 different times prior
to their arrests. (Defs.’ 56.1 ¶¶ 119-20; Audio
14
The police department and force shall have the
power and it shall be their duty to preserve the
public peace, prevent crime, detect and arrest
offenders, suppress riots, mobs and
insurrections, disperse unlawful or dangerous
assemblages and assemblages which obstruct
the free passage of public streets, sidewalks,
parks and places . . . regulate, direct, control
and restrict the movement of vehicular and
pedestrian traffic for the facilitation of traffic
and the convenience of the public as well as the
proper protection of human life and health;
[and] remove all nuisances in the public streets,
parks and places . . . .
N.Y. City Charter § 435(a) (2009), available at
http://www.nyc.gov/html/charter/downloads/pdf/citych
arter2009.pdf.
11
Case 1:05-cv-04949-RJS-JCF Document 109
Filed 09/30/10 Page 12 of 12
Recording.)15 Following that series of orders,
Plaintiffs "chose not to leave the area" and
"elected to stay there in the presence of the
police." (Defs.' 56.1 ~ 129.)
Court is respectfully directed to terminate the
motion located at document number 72 and
close this case.
The Court finds that Plaintiffs' repeated
refusal to follow lawful dispersal orders 16
created probable cause to arrest Plaintiffs for
obstruction of governmental administration
pursuant to N.Y. Penal Law § 195.05 and NYC
Charter § 435(a). The fact that Plaintiffs
eventually began to walk in the direction of the
demonstration area does not diminish this
finding, since they continued to question police
officers and disregard police orders along the
way. (Audio Recording.) Since "a claim for
false arrest turns only on whether probable
cause existed to arrest a defendant and . . .
not . . . whether probable cause existed with
respect to each individual charge," the Court
need not reach the merits of the disorderly
conduct charge. Jaegly v. Couch, 439 F.3d
149, 154 (2d Cir. 2006).
SO ORDERED.
IV.
Dated September 29,2010
New York, New York
***
Plaintiffs are represented by Brian W. Raum
and Jeffrey A. Shafer, Alliance Defense Fund,
15100 N. 90th Street, Scottsdale, Arizona,
85260, and 801 G Street, NW, Suite 509,
Washington, D.C. 20001. Defendants are
represented by Michael A. Cardozo,
Corporation Counsel of the City of New York,
James Mirro, Special Assistant Corporation
Counsel of the City of New York, and Alexis
L. Leist and Cheryl L. Shammas, Assistant
Corporation Counsel of the City of New York,
100 Church Street, New York, New York,
10007.
CONCLUSION
For the reasons stated above, Defendants'
summary judgment motion is granted.
Because the Court finds in favor of Defendants
on both the constitutionality of the City's
policy and the existence of probable cause for
Plaintiffs' arrests, the qualified immunity
defense is rendered moot. The Clerk of the
...---'
USDSSDNY
DOCUMENT
SJ·:BcrRONICA1J.,Y FlLBO: '.
15
Review of the audiotape further reveals that the
officers were neither abusive nor disrespectful toward
Plaintiffs during the exchange.
Under these
circumstances, the mere refusal to be drawn into a
lawyerly debate on First Amendment principles and
applications cannot be deemed an abuse of authority.
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16
For all the reasons stated in Part lILA above, the
Court rejects Plaintiffs' assertion that "the order to leave
the public sidewalk was unlawful" and violated the First
Amendment. (PIs.' Opp'n 11.)
12
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