Lederman v Giuliani ruling

2001 U.S. Dist. LEXIS 11567, *

ROBERT LEDERMAN, KNUT MASCO, JACK NESBITT, WEI ZHANG, and

A.R.T.I.S.T., Plaintiffs, -against- RUDOLPH GIULIANI, Mayor of the City of New
York, in his individual and official capacities, CITY OF NEW YORK, NEW YORK
CITY POLICE DEPARTMENT, HOWARD SAFIR, Commissioner of the New York
City Police Department, in his individual and official capacities, NEW YORK CITY
DEPARTMENT OF PARKS AND RECREATION, HENRY J. STERN, Commissioner
of the Department of Parks and Recreation, in his individual and official capacities,
OFFICE OF COURT ADMINISTRATION OF THE CITY OF NEW YORK, and
OFFICER HAYNES, OFFICER E. RYAN, SERGEANT BROWN and SERGEANT
ROSADO, in their individual and official capacities, and John Doe Nos. 1-10,
Defendants. DEL-BOURREE BACH, MITCHELL BALMUTH, SUSAN BALMUTH,
HENRY BARNARD, CYNTHIA BROWN, KRISTEN GARVER, PEDRO PACHECO,
NIKOLAI PLAVSKI, TABORE RECTOR, PHILIP J. REILLY, JANET THOMAS, GI
WANG, HUAN WANG, and ALEXANDER VERSTOV, Plaintiffs, -against-
RUDOLPH GIULIANI, Mayor of the City of New York, in his individual and official
capacities, CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT,
HOWARD SAFIR, Commissioner of the New York City Police Department, in his
individual and official capacities, NEW YORK CITY DEPARTMENT OF PARKS AND
RECREATION, HENRY J. STERN, Commissioner of the Department of Parks and
Recreation, in his individual and official capacities, SERGEANT ROSADO, in his
individual and official capacity, ALEXANDER R. BRASH, in his individual and official
capacity, and John Doe Nos. 1-10, Defendants.

98 Civ. 2024 (LMM), 98 Civ. 2400 (LMM)

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW

YORK

2001 U.S. Dist. LEXIS 11567

August 7, 2001, Decided August 10, 2001, Filed

DISPOSITION: [*1] Defendants' motion for summary judgment granted in part and
denied in part and plaintiffs' cross-motion for partial summary judgment granted.

COUNSEL: For ROBERT LEDERMAN, KNUT MASCO, JACK NESBITT, WEI

ZHANG, A.R.T.I.S.T., plaintiffs (98-CV-2024): Andrew T. Miltengerg, Nesenoff &
Miltenberg, LLP, New York, NY.

For RUDOLPH GIULIANI, CITY OF NEW YORK, NEW YORK CITY POLICE
DEPARTMENT, HOWARD NEW YORK CITY POLICE COMMISSIONER, THE
NEW YORK CITY DEPARTMENT OF PARKS AND RECREATION, HENRY J.
STERN, OFFICER E. RYAN, SERGEANT ROSADO, defendants (98-CV-2024): Robin
Binder, Michael D. Hess, Corporation Counsel, City of New York, New York, NY.

For OFFICER HAYNES, SERGEANT BROWN, defendants (98-CV-2024): Nancy L.

Eisenstein, Dennis C. Vacco, Attorney General of the State of N.Y., New York, NY.

For DEL-BOURREE BACH, MITCHELL BALMUTH, SUSAN BALMUTH, HENRY

BARNARD, CYNTHIA BROWN, KRISTEN GARVER, PEDRO PACHECO,
NIKOLAI PLAVSKI, TABORE RECTOR, PHILIP J. REILLY, JANET THOMAS, GI
WANG, HUAN WANG, ALEXANDER VERSTOV, GARY BERMAN, ROBERT
BERY, LYNNE A. CRADDOCK, PATRICK CHRISTIANO, JESSICA LEAMAN,
JOACHIM LOMBARD, MA KE LU, DAVID MCDERMOTT, JACKIE GARRICK-
WALDMAN, HOWARD WALDMAN, plaintiffs (98-CV-2400): [*2] Paul A. Shneyer,
Paul A. Shneyer, P.C., New York, NY.

For DEL-BOURREE BACH, MITCHELL BALMUTH, SUSAN BALMUTH, HENRY

BARNARD, CYNTHIA BROWN, KRISTEN GARVER, PEDRO PACHECO,
NIKOLAI PLAVSKI, TABORE RECTOR, PHILIP J. REILLY, JANET THOMAS, GI
WANG, HUAN WANG, ALEXANDER VERSTOV, plaintiffs (98-CV-2400): Carol
Novack, New York, NY.

For CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF PARKS AND
RECREATION, defendants (98-CV-2400): Robin Binder, Paul A. Crotty, Corporation
Counsel of the City of NY, New York, NY.

JUDGES: LAWRENCE M. McKENNA, U.S.D.J.

OPINIONBY: LAWRENCE M. McKENNA

OPINION: MEMORANDUM AND ORDER

MCKENNA, D.J.

Before the Court are defendants' motion for summary judgment and plaintiffs' cross-
motion for partial summary judgment. For the reasons set forth below, defendants'
motion is granted in part and denied in part and plaintiffs' cross-motion is granted.

I. Background

Plaintiffs are visual artists and an organization comprised of approximately 400 artists,
Artists' Response to Illegal State Tactics ("A.R.T.I.S.T."), who display and sell their
artwork on the streets of New York City, including the area in front of the Metropolitan
Museum of Art ("the Met"). Since March 1, 1998 art [*3] vendors selling their work
without permits in front of the Met have been ticketed and arrested by officers of the New
York City Police Department ("the NYPD") and the Parks Department and had their art
confiscated. Plaintiffs cross-move for partial summary judgment that Title 56 of the
Rules of the City of New York ("R.C.N.Y.") 1-05(b), promulgated by the New York
City Department of Parks and Recreation ("the Parks Department"), prohibiting vendors
to operate without a permit either within the parks or on territory which is under the
jurisdiction of the Parks Department, including the street and area abutting the Met, is
unconstitutional under the First and Fourteenth Amendments of the United States
Constitution, U.S. Const. amend. I, XIV, and Article I, sections Eight and Eleven of the
New York State Constitution. N.Y. Const. art. 1, 8, 11.

Defendants oppose plaintiffs' cross-motion for partial summary judgment and move for
summary judgment on plaintiffs' claim that statutes prohibiting the defacing or marking
of sidewalks and public property, specifically New York City Administrative Code
10-117 and 19-138, and 56 R.C.N.Y. 1-04(a) ("the defacement provisions"), are
unconstitutional [*4] under the First Amendment and Article 1, 8 of the New York
State Constitution as applied to the use of chalk and selectively enforced in violation of
the Fourteenth Amendment and Article 1, 11 of the New York State Constitution.
Plaintiffs, particularly Robert Lederman ("Lederman"), have repeatedly been arrested for
printing on the sidewalks with chalk as a method of protest.

Finally, the City of New York ("the City") seeks summary judgment dismissing
Lederman's 28 U.S.C. 1983 claim that he was improperly arrested for disorderly
conduct in front of The Cooper Union For the Advancement of Science and Art on May
27, 1998 ("the Cooper Union Arrest").

II. Legal Standard

Summary judgment should be granted only "if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law." Fed. R. Civ. P. 56(c). A dispute regarding a material fact is
genuine "if the evidence is such that a reasonable jury

could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). [*5] Once the moving party
establishes a prima facie case demonstrating the absence of a genuine issue of material
fact, the non-moving party has the burden of presenting "specific facts showing that there
is a genuine issue for trial." Fed. R. Civ. P. 56(e). The non-moving party must "do more
than simply show that there is some metaphysical doubt as to the material facts,"
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538,
106 S. Ct. 1348 (1986), and "may not rely on conclusory allegations or unsubstantiated
speculation." Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998).

III. Discussion

A. Parks Department Permit Requirement

Section 1-05(b) makes it illegal to vend within the jurisdiction of the Parks Department
without a permit. Plaintiffs seek a permanent injunction on First Amendment or Equal
Protection grounds preventing the City from enforcing 1-05(b) against vendors dealing
in artwork ("art vendors"). In addition to surviving constitutional scrutiny under the First
Amendment, 1-05(b) must also be consistent with the statues and legislation that New
York City has promulgated to govern the [*6] behavior and location of street vendors.
The latter argument was considered in People v. Balmuth, 178 Misc. 2d 958, 681
N.Y.S.2d 439 (Crim. Ct. 1998), aff'd July 31, 2001 N.Y.L.J. 21 (App. Term 2001), where
the court found 1-05(b) as applied to art vendors selling art in front of the Met to violate
the legislative intent of the relevant provision of the New York City Administrative Code.
Plaintiffs argue that this Court should give preclusive effect to Balmuth, which arose out
of the criminal prosecution of several of the same art vendors who are plaintiffs in the

present case for selling their art in front of the Met without a permit in violation of 1-
05(b). Although this Court is unable to give the Balmuth decision preclusive effect, the
Court finds Balmuth's analysis of the relevant vending statutes to be highly persuasive.

1. Balmuth Does Not Have Issue Preclusive Effect

Issue preclusion or collateral estoppel is intended to prevent re-litigation of the same

issue between parties who already have had an opportunity to try the issue in court.
Federal courts must give the same preclusive effect to state court decisions [*7] as the
courts of that same state would. 28 U.S.C. 1738. This Court, therefore, must analyze
what preclusive effect another New York State court would give to the Balmuth decision.
Under New York State law several requirements must be met before issue preclusion can
be applied. There must be "an identity of issue which has necessarily been decided in the
prior action and is decisive of the present action" and "a full and fair opportunity to
contest the decision now said to be controlling." Wilder v. Thomas, 854 F.2d 605, 620
(2d Cir. 1985) (quoting Schwartz v. Pub. Adm'r of Bronx, 24 N.Y.2d 65, 298 N.Y.S.2d
955, 960, 246 N.E.2d 725 (1969)).

The "full and fair opportunity" requirement demands that the judgment to be given
preclusive effect have been "decided against that party or those in privity." Ryan v. New
York Tel. Co., 62 N.Y.2d 494, 478 N.Y.S.2d 823, 826, 467 N.E.2d 487 (1984). The
parties in Balmuth and this case are not the same. In Balmuth, the prosecuting party is the
People of the State of New York. In the present case, plaintiffs have sued the City of New
York, the NYPD, the Parks Department, [*8] and several other City agencies, as well as
officials and police officers in their individual capacities. n1 Before plaintiffs can assert
issue preclusion successfully, they must show that the prosecutor in the Balmuth matter,
the People of the State of New York, as represented by the New York County District
Attorney's office, is in privity with the defendants in the present action. n2

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 In addition, not all plaintiffs in the present case were parties to Balmuth.

n2 In Balmuth, Judge Billings addressed whether this Court's order denying a preliminary
injunction in this matter had preclusive effect and found privity between the City
agencies in this case and the prosecution in Balmuth. 681 N.Y.S.2d at 442. However, the
Balmuth court's determination cannot be given preclusive effect. In order to have issue
preclusive effect, a decision must have been necessary to the court's judgment. Wilder,
854 F.2d at 620. The issue decided also must have been material to the first action and
essential to the decision. Jackson v. Ramundo, 1997 U.S. Dist. LEXIS 17035, No. 95
Civ. 5832, 1997 WL 678167, at *4 (S.D.N.Y. Oct. 30, 1997) (citing Fletcher v. Atex,
Inc., 68 F.3d 1451, 1457 (2d Cir. 1995)). New York law holds that denial of a
preliminary injunction is not an adjudication on the merits, and therefore the prior order
in this case could not be given preclusive effect by the Balmuth court. 681 N.Y.S.2d at
442. Because Balmuth's finding of privity was ultimately irrelevant, and therefore not
material, necessary, or essential to the decision, it cannot be given preclusive effect.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*9]

There are several factors to consider when determining whether parties are in privity. One
is whether "the connection between the parties is such that the interests of the nonparty
can be said to have been represented in the prior proceeding." Green v. Santa Fe Indus.,
Inc., 70 N.Y.2d 244, 519 N.Y.S.2d 793, 514 N.E.2d 105. However, a non-party may also
be bound by issues determined in a prior action if it "controls or substantially participates
in the control of the representation on behalf of a party." United States v. Davis, 906 F.2d
829, 833 (2d Cir. 1990). Although the pleadings suggest that the Parks Department had a
significant role in prosecuting Balmuth, (Pls.' Supp. Mem. at 5; Ex. 1), a number of cases
have held that substantial control is not enough to create privity between the District
Attorney and other municipal entities. In Brown v. City of New York, 60 N.Y.2d 897,
470 N.Y.S.2d 573, 458 N.E.2d 1250 (1983), the Court of Appeals held that "the city and
the District Attorney are separate entities and . . . do not stand in sufficient relationship to
apply the doctrine." 470 N.Y.S.2d at 574. The Brown Court did suggest [*10] that there
might be a situation where the two entities would stand in a sufficient relationship to
create privity. Id. However, no court applying Brown to facts similar to those in the
instant case has found privity. In Taveras v. City of New York, 222 A.D.2d 338, 635
N.Y.S.2d 608 (App. Div. 1995) and Saccoccio v. Lange, 194 A.D.2d 794, 599 N.Y.S.2d
306 (App. Div. 1993), the Appellate Division interpreted Brown to hold that the District
Attorney's office and the City of New York (and other municipal entities) do not stand in
sufficient relationship to each other to create privity and allow issue preclusion. Taveras,
635 N.Y.S.2d at 608-09; Saccoccio, 599 N.Y.S.2d at 306; see also Doe v. City of Mt.
Vernon, 156 A.D.2d 329, 548 N.Y.S.2d 282, 283 (App. Div. 1989); People v. Morgan,
111 A.D.2d 771, 490 N.Y.S.2d 30, 31 (App. Div. 1985); Nelson v. Dufficy, 104 A.D.2d
234, 482 N.Y.S.2d 511, 513 (App. Div. 1984); People v. Batista, 158 Misc. 2d 985, 602
N.Y.S.2d 774, 776-77 (Sup. Ct. 1993). Therefore, the Court holds that there is no privity
between [*11] defendants in the immediate case and the prosecution in Balmuth, and
thus, Balmuth cannot be given preclusive effect.

Thus, this Court must address whether the enforcement of the Parks Department
regulation 1-05(b) against art vendors conflicts first with New York City
Administrative Code, Title 20, subchapter 27, 20-452 through 20-474.3, and, second,
if necessary, with the right to free speech and equal protection found in the New York
State and United States Constitutions.

2. Standard of Review for Regulations Promulgated by Administrative Agencies

Administrative agencies, including the Parks Department, "can only promulgate rules to
further the implementation of the law as it exists; they have no authority to create a rule
out of harmony with the statute." Jones v. Berman, 37 N.Y.2d 42, 371 N.Y.S.2d 422,
429, 332 N.E.2d 303 (1975). On the other hand, "it is settled law that an agency's
interpretation of the statutes it administers must be upheld absent demonstrated
irrationality or unreasonableness." Seittelman v. Sabol, 91 N.Y.2d 618, 674 N.Y.S.2d
253, 256, 697 N.E.2d 154 (1998) (citation omitted). Where "the question [*12] is one of
pure statutory reading and analysis, dependent only on accurate apprehension of
legislative intent, there is little basis to rely on any special competence or expertise of the
administrative agency." Id. (quoting Kurcsics v. Merchants Mut. Ins. Co., 49 N.Y.2d 451,
426 N.Y.S.2d 454, 459, 403 N.E.2d 159 (1980)). "In such a case, courts are 'free to
ascertain the proper interpretation from the statutory language and legislative intent.'" Id.
(quoting In re Gruber, 89 N.Y.2d 225, 652 N.Y.S.2d 589, 593, 674 N.E.2d 1354 (1996)).

3. The Relevant Statutes Governing Vendors

All vendors are governed by New York City Administrative Code, Title 20, subchapter
27, 452 through 474.3. Although there are several provisions that exempt vendors
dealing in newspapers, periodicals, books, pamphlets and other similar written matter
("book vendors") from permit requirements, subchapter 27 does not similarly exempt art
vendors.

Administrative Code 453 requires all vendors in New York City to obtain a license, but
exempts book vendors pursuant to Local Law of the City of New York No. 33 (1982)
("Local Law 33"). Administrative Code [*13] 465(j) imposes an additional restriction
on all vendors operating in Parks Department territory:

No general vendor shall vend within the geographical areas under the jurisdiction of the
department of parks and recreation unless written authorization therefor has been
obtained from the commissioner of such department, but nothing therein contained shall
exempt any general vendor from obtaining a license in accordance with this subchapter.

However, this permit requirement is also subject to an exemption for vendors of written
material, set out in Administrative Code 473, which states that:

General vendors who exclusively vend written matter are exempt from . . . subdivision j
of section 20-465, except that nothing herein shall be construed to deprive the
commissioner of the department of parks and recreation of the authority to regulate the
vending of written matter in a manner consistent with the purpose of the parks and the
declared legislative intent of this subchapter.
Thus, vendors of written material are exempt from all licensing or permit requirements,
except that if they vend within the jurisdiction of

the Parks Department, they may be subject [*14] to regulations "consistent with the
purpose of the parks and the declared legislative intent" of subchapter 27.

In Bery v. City of New York, 97 F.3d 689 (2d Cir. 1996), cert. denied, 520 U.S. 1251,
138 L. Ed. 2d 174, 117 S. Ct. 2408 (1997), the Second Circuit addressed whether the City
could require art vendors to obtain a license to sell their goods under Administrative
Code 453. The Bery Court determined that "visual art is as wide-ranging in its
depiction of ideas and emotions as any book, treatise, pamphlet or other writing" and held
that artwork was entitled to the same First Amendment protection as written material. Id.
at 695. Sale of such protected material is also protected by the First Amendment, id. at
695-96 (citing Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 756 n.5, 768, 100 L.
Ed. 2d 771, 108 S. Ct. 2138 (1988)), and under the Equal Protection Clause of the
Fourteenth Amendment art vendors and book vendors must be treated the same. See 97
F.3d at 699. Following Bery, therefore, art vendors are subject to only those vending
restrictions which are applicable to book vendors. [*15] Thus, in order for any Parks
Department regulation affecting the ability of art vendors to vend to be valid, it must
meet both conditions set forth in Administrative Code 473, consistency with the
purpose of the parks and the legislative intent of subchapter 27.

4. On Its Face, 56 R.C.N.Y. 1-05(b) Is Valid Because It Does Not Necessarily Impose
Licensing Requirements on Art Vendors

Section 1-05(b) was enacted by the Parks Department pursuant to New York City Charter
533(a)(9) which grants the Commissioner of the Parks Department the authority "to
establish and enforce rules and regulations for the use, government and protection of
public parks and of all property under the charge or control of the department." N.Y. City
Charter 533(a)(9). New York City Charter 533(a)(5) places "all streets and avenues
lying within any park . . . or within a distance of three hundred fifty feet from the outer
boundaries thereof" within the jurisdiction of the Parks Department, which includes the
Met. N.Y. City Charter 533(a)(5).

Section 1-05(b) requires all vendors operating on Parks territory to obtain a permit:

No person in any park, or street adjacent to or [*16] abutting a park (including all public
sidewalks of such abutting streets) shall sell, offer for sale, hire, lease or let anything
whatsoever, except under and within the terms of a permit, or except as otherwise
provided by law.

By their terms, both Administrative Code 465(j) and 1-05(b) impose licensing
requirements on all vendors operating in Parks Department territory. n3 As applied to
vendors who do not deal in books or art, there is no conflict between subchapter 27 and
1-05(b). As a result, 1-05(b) is valid as enforced against most vendors. Further, because
1-05(b) does allow vending without a permit "as otherwise provided by law," the
regulation is not automatically in conflict with the statutory exemptions for book vendors
and, pursuant to Bery, art vendors contained in Administrative Code 453 and 473.
Any statutory provision excusing book and art vendors from the permit requirement
would fall under the "otherwise provided by law" clause. Therefore, as stated by the
Balmuth court, "the issue . . . is specifically whether the regulation is lawful as enforced
against [plaintiff art vendors], in requiring them to have a permit to sell or offer for [*17]
sale their artwork . . . on City parkland along Fifth Avenue." 681 N.Y.S.2d at 443. Thus,
the Court must examine whether the enforcement of a licensing requirement pursuant to
1-05(b) against art vendors is "consistent with the purpose of the parks and the declared
legislative intent" of subchapter 27 as necessary under Administrative Code 473.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n3 By "licensing," the Court includes any license, permit, or authorization requirement.

Although Local Law 33 uses the words "licensing requirements" and 1-05(b) uses the
word "permit," there does not appear to be any difference or distinction in the use of the
words, and they are effectively interchangeable.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

5. The Enforcement of 56 R.C.N.Y. 1-05(b) Against Art Vendors Violates

Administrative Code 473

Local Law 33 provides the legislative intent underlying Administrative Code 473
specifically and subchapter 27 generally, with respect to the regulation of book vendors
in New York City. The heading of Local Law 33 is:

To amend [*18] the administrative code of the city of New York, in relation to the
exemption from licensing of vendors of newspapers, periodicals, books, pamphlets and
other similar written matter, and the regulation of such vendors.

L.L. 33/1982. The New York City Council made the following legislative declaration, in
enacting Administrative Code 473:

It is consistent with the principles of free speech and freedom of the press to eliminate as
many restrictions on the vending of written matter as is consistent with the public health,
safety and welfare. The council further finds and declares that general vendors who
exclusively vend written matter should be free from licensing requirements. It is further
found and declared that general vendors who exclusively vend written matter with the aid
of small portable stands should be exempted from restrictions on the time, place and
manner of their vending activity insofar as such exemption does not constitute a threat to
the public health, safety or welfare.

Id. 1 (emphasis added). Thus, the legislative intent is that book vendors "should be free
from licensing requirements," id., without provision for exceptions. If any [*19]
uncertainty remained, conditions and exceptions regarding the regulation of book vendors
in other ways emphasize the unconditional nature of the prohibition on licensing
requirements. The first sentence of Local Law 33, 1 states that the public health, safety
and welfare are the relevant considerations when placing restrictions on book vendors. Id.
The next sentence, however, identifies "licensing requirements" as an impermissible form
of restriction, without exception for public health, safety and welfare concerns. Id. Thus,
although time, place and manner restrictions may be imposed to benefit public health,
safety and welfare, licensing requirements are never permissible on book vendors.

As explained above, this legislative intent and regulatory scheme must apply equally to
art vendors and book vendors. See Bery, 97 F.3d at 699. As a result, an exemption for
both book and art vendors must be read into the "otherwise provided by law" clause in
1-05(b). Section 1-05(b)'s permit requirement cannot be legally enforced against art
vendors, or indeed, against book vendors. Having determined that such enforcement is
not valid under existing New York City [*20] statutes, it is not necessary for this Court to
consider the validity of the licensing requirement under either the United States or New
York State Constitutions. Plaintiffs' cross-motion for partial summary judgment is
granted.

B. The Defacement Provisions

Plaintiffs make two claims with respect to the defacement provisions. n4 First, that they
violate the First Amendment and Article 1, 8 of the New York State Constitution
because they are "prior restraints on constitutionally protected speech" which are
"overbroad and vague," particularly as applied to the use of chalk. (Am. Compl. PP 179-
85, 190-91.) Second, that plaintiffs' arrests for the violation of the defacement provisions
evidence a policy of selective enforcement which has created "favored and unfavored
categories of speakers" (Am. Compl. PP 186-89, 192-197) in violation of the Fourteenth
Amendment and Article 1, 11 of the New York State Constitution. - - - - - - - - - - - - - -
- - - -Footnotes- - - - - - - - - - - - - - - - - -

n4 There are three provisions at issue. Administrative Code 10-117 provides, in

relevant part:

a. No person shall write, paint or draw any inscription, figure or mark of any type on any
public or private building or other structure or any other real or personal property owned,
operated or maintained by a public benefit corporation, the city of New York or any
agency or instrumentality thereof or by any person, firm, or corporation, or any personal
property maintained on a city street or other city-owned property pursuant to a franchise,
concession or revocable consent granted by the city, unless the express permission of the
owner or operator of the property has been obtained.

...

f. Any person who violates the provisions of this section shall be guilty of a class B
misdemeanor punishable by a fine of not more than five hundred dollars or imprisonment
of not more than three months, or both.
g. In addition to the criminal penalties imposed pursuant to subdivision f of this section, a
person who violates the provisions of subdivision a, b, c or d of this section shall be liable
for a civil penalty of not more than five hundred dollars for each violation which may be
recovered in a proceeding before the environmental control board. Such proceeding shall
be commenced by the service of a notice of violation returnable before such board.

Administrative Code 19-138 provides, in relevant part:

b. Defacing. Except as otherwise provided by law, it shall be unlawful for any person to
deface any street by painting, printing or writing thereon, or attaching thereto, in any
manner, any advertisement or other printed matter.

56 R.C.N.Y. 1-04(a) provides:

(a) Destruction or abuse of property and equipment. No person shall injure, deface, alter,
write upon, destroy, remove or tamper with in any way, any real or personal property or
equipment owned by or under the jurisdiction or control of the [Parks] Department.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*21]

Plaintiffs' response to defendants' summary judgment motion on the selective

enforcement claim is a request for a continuance of discovery. Plaintiffs allege that there
was an arrangement between the parties that discovery on issues other than the Parks
Department permit requirement would be postponed. (Fierman Decl. PP 4-43; Shneyer
Decl. PP 3-5.) Defendants do not deny that such an agreement was made. Because the
manner in which the provisions were enforced may create a genuine issue of material fact
following discovery, the Court denies defendants' motion for summary judgment on the
claim of selective enforcement of the defacement provisions and grants plaintiffs' request
for a continuance of discovery.

With respect to plaintiffs' claim that the defacement provisions violate the First
Amendment and Article 1, 8, defendants argue that the defacement provisions are valid,
content-neutral requirements that are narrowly tailored to serve a significant government
interest and allow ample alternative channels for communication. (Defs.' Mem. at 25.)
Defendants claim that the provisions "make no distinction based on the content of any
written expression" and are thus content-neutral [*22] on their faces. (Id.) They also
argue that the protection of public property from damage and visual blight is a significant
government interest, and that the manner of defacement is irrelevant. (Id.)

Plaintiffs do not respond to defendants' argument. Even if, read broadly, plaintiffs'
argument for a discovery continuance was intended to delay summary judgment on the
constitutionality of the defacement provisions, the argument would fail. As the facial
validity of the defacement provisions is a matter of law, not of fact, additional discovery
would have no bearing on this matter. Therefore, defendants' motion for summary
judgment is granted on plaintiffs' free speech claim with respect to the defacement
provisions.

C. The Cooper Union Arrest

For the reasons described above with respect to the defacement provision arrests, the
Court also grants a continuance of discovery in the matter of the Cooper Union arrest.
Lederman, having alleged that he was improperly arrested as a result of being "targeted"
by the Giuliani Administration (Am. Compl. P 198), should have an opportunity to seek
discovery on this matter.

IV. Conclusion

Defendants' motion for summary judgment [*23] is denied and plaintiffs' cross-motion
for summary judgment is granted with respect to

the enforcement of 56 R.C.N.Y. 1-05(b).

Defendants' motion for summary judgment is granted with respect to plaintiff's free
speech claim regarding the defacement provisions and denied with respect to plaintiffs'
equal protection claims arising from the Cooper Union arrest and the arrests pursuant to
the defacement provisions. Plaintiffs are granted an extension of discovery until October
31, 2001 regarding the arrests.

SO ORDERED.

DATED: August 7, 2001

LAWRENCE M. McKENNA

U.S.D.J.

Service: LEXSEE(r)

Citation: 2001 US Dist Lexis 11567

ROBERT LEDERMAN, et al., Plaintiffs-Appellees DEL-BOUREE BACH, et al.,

Consolidated-Plaintiffs-Appellees, v. SERGEANT ROSADO, in his individual and
official capacities, Defendant-Appellant, CITY OF NEW YORK, RUDOLPH
GIULIANI, Mayor of the City (2nd Cir. 2003)

Federal Circuits, 2nd Cir. (July 15, 2003)

Docket number: 01-9029

Permanent Link: http://vlex.com/vid/lederman-bouree-bach-rosado-giuliani-18535623

Id. vLex: VLEX-18535623

U.S. Court of Appeals for the 2nd Cir. - Robert Bery, James Albert Harris, Anne Reiss,
Ricardo Antonio Pascual, Artists for Creative Expression on the Sidewalks of New York
City, Robert Lederman, Jodi Bogus, Knut Masco, Alexis Portilla and Arthur Robins,
Plaintiffs-Appellants, v. City of New York; Rudolph Giuliani, Mayor, City of New York;
William Bratton, Chief, New York City Police Department; Robert Morgenthau, District
Attorney-New York County; Richard A. Brown, District Attorney-Queens County;
William L. Murphy, District Attorney-Richmond County; Charles H. Hynes, District
Attorney-Kings County; Robert F. Johnson, District Attorney-Bronx County; Alfred C.
Cerullo, Iii, Commissioner of New York City Department of Consumer Affairs; New
York City Department of Consumer Affairs; Henry J. Stern, Commissioner, New York
City Department of Parks & Recreation; Marilyn Gelber, Commissioner of the New York
City Department of Environmental Protection of the City of New York; Environmental
Control Board of the City of New York and Anne J. ..., 97 F.3d 689 (2nd Cir. 1996)
James Albert Harris, Anne Reiss, Ricardo Antonio Pascual, Artists for Creative
Expression on the Sidewalks of New York City, Robert Lederman, Jodi Bogus, Knut
Masco, Alexis Portilla and Arthur Robins, Plaintiffs-Appellants, v. City of New York;
Rudolph Giuliani, Mayor, City of New York; William Bratton, Chief, New York City
Police Department; Robert Morgenthau, District Attorney-New York County; Richard A.
Brown, District Attorney-Queens County; William L. Murphy, District Attorney-
Richmond County; Charles H. Hynes, District Attorney-Kings County; Robert F.
Johnson, District Attorney-Bronx County; Alfred C. Cerullo, Iii, Commissioner of New
York City Department of Consumer Affairs; New York City Department of Consumer
Affairs; Henry J. Stern, Commissioner, New York City Department of Parks &
Recreation; Marilyn Gelber, Commissioner of the New York City Department of
Environmental Protection of the City of New York; Environmental Control Board of the
City of New York and Anne J. ...

* See other documents that cite the same legislation

Text:

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY

ORDER THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL
REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO
THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF
THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A
RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL
ESTOPPEL OR RES JUDICATA.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, Foley Square, in the City of New York, on
the 15th day of July, two thousand and three.

Present: HONORABLE RALPH K. WINTER, HONORABLE JOSEPH M.

McLAUGHLIN, HONORABLE JOS A. CABRANES, Circuit Judges.

ROBERT LEDERMAN, et al., Plaintiffs-Appellees DEL-BOUREE BACH, et al.,

Consolidated-Plaintiffs-Appellees, - v. - No. 01-9029

SERGEANT ROSADO, in his individual and official capacities, Defendant-Appellant,

CITY OF NEW YORK, RUDOLPH GIULIANI, Mayor of the City of New York in his
individual and official capacities, NEW YORK CITY POLICE DEPARTMENT,
HOWARD SAFIR, Commissioner of the New York City Police Department, in his
individual and official capacities, NEW Docket No. 99-6054

Page 2 of 4

YORK CITY DEPARTMENT OF PARKS AND RECREATION, HENRY J. STERN,

Commissioner of the Department of Parks and Recreation, in his individual and official
capacities, ALEXANDER R. BRASH, in his individual and official capacities, and
JOHN DOES NOS. 1-10, Consolidated-Defendants-Appellants, OFFICER HAYNES,
OFFICER E. RYAN and SERGEANT BROWN, Defendants.

Appearing for Appellant: Elizabeth I. Freedman, Assistant Corporation Counsel of the

City of New York (Michael A. Cardozo, Leonard Koerner, Robin Binder, of counsel),
New York, New York.

Appearing for Appellees: Robert Fierman, Nesenoff & Miltenberg, LLP, New York, New
York, Paul A.

Shneyer, Paul A. Shneyer, P.C., and Carol Novak(Robert T. Perry, Center for
Constitutional Rights, on the brief), New York, New York.

Appeal from the United States District Court for the Southern District of New York
(McKenna, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND

DECREED that the judgment of the District Court is hereby AFFIRMED.

The City of New York and various City officials and law enforcement officers appeal
from a permanent injunction issued by Judge McKenna. We affirm for substantially the
reasons stated by the district court in its memorandum and order. See Lederman v.

Giuliani, 2001 WL 902591 (S.D.N.Y. Aug. 7, 2001).

Although the district court opinion, and therefore our order, disposes of this appeal on
state law grounds -- in Docket No. 99-6054

Page 3 of 4
particular whether enforcement of Section 1-05(b) of Title 56 of the Rules of the City of
New York against art vendors violates Section 20-473 of the Administrative Code of the
City of New York -- we have decided not to certify these issues to the New York Court of
Appeals because the interpretation of Section 20-473

will be driven by a prior decision of our court based on federal constitutional grounds.
See Bery v. City of New York, 97 F.3d 689, 695-96, 699 (2d Cir. 1996) (extending
exemption under 20-473

to visual art and art vendors on First Amendment and Equal Protection grounds). For
example, Bery was relied upon by the New York Criminal Court as the basis for its
dismissing criminal charges against art vendors for violations of Section 1-05(b), see
People v. Balmuth, 681 N.Y.S.2d 439, 443-44 (Crim. Ct. 1998), aff'd, 731 N.Y.S.2d 314
(App. Term 2001) (per curiam), leave to appeal denied, 97 N.Y.2d 678 (2001), People v.
Patrick, 738

N.Y.S.2d 295 (2001). Bery was also relied upon by the district court in its memorandum
and order which became the basis for the issuance of the permanent injunction. See
Lederman, 2001 WL 902591, at *4-*6. Because resolution of the state law issues is
driven by our prior interpretation of federal constitutional law, the central question on
appeal is whether the district court properly applied Bery. We find that it did and
therefore affirm.

Docket No. 99-6054

Page 4 of 4

FOR THE COURT:

ROSEANN B. MACKECHNIE, Clerk By: Date