KAPLAN, District Judge.
Life in this great city involves infinite conflicts between the desires of some to act and express themselves whenever, wherever, and however they wish and the desires of others for freedom from such behavior. The inescapable fact is that one person's freedom can be another person's burden or annoyance, often even where each is acting in entire good faith. The difficult task of municipal government is to strike appropriate balances that promote the general welfare and reconcile, so far as possible, the competing interests.
This case presents just such a conflict. Plaintiffs, advocates of large group bicycle rides through New York City (the "City"), claim that they should be free to ride in large groups wherever, whenever, and however they wish, free from municipal regulation. The City seeks to regulate these events by requiring permits that would enable the New York City Police Department (the "NYPD") to know where and when the groups will ride in order to facilitate the flow of traffic and protect the safety of all concerned. Plaintiffs contend that this infringes upon their constitutional rights to travel, expressive association, and free speech. They move here for a preliminary injunction prohibiting enforcement of the permitting scheme.
Having considered the evidence, the Court is not persuaded that plaintiffs — despite their good faith and earnestness — have met the high standard that must be satisfied before legitimate, content-neutral governmental actions that only incidentally affect the exercise of constitutional rights may be enjoined prior to trial.
I. Group Bicycle Rides
By some estimates, 120,000 individuals ride bicycles through the streets of New
A. Reasons for Riding in Groups
Cyclists organize and participate in group rides for a variety of reasons, such as meeting and conversing with other cyclists or taking advantage of the enhanced safety that riding in numbers provides
At least one group bicycle ride has a political message. So called "Critical Mass" rides take place in a number of cities across the country, including New York, on either the second or the last Friday of each month,
B. Potential Hazards
Although group ride participants argue that traveling in groups is safer for cyclists than traveling alone,
Moreover, some members of large groups of cyclists have been known to disregard traffic rules by running red lights, traveling along roadways where bicycles are prohibited, riding against the flow of traffic, and failing to use traffic signals, thus preventing pedestrians and vehicular traffic from predicting the cyclists' movements and crossing intersections safely.
Groups smaller than 50 present fewer problems. Their impact on traffic flow and safety is comparatively minor because of their relatively smaller sizes.
The Court accepts the evidence of both Lieutenants Caneco and Gannon that the problems associated with large group bicycle rides can be cured or greatly reduced by a permitting scheme that ensures that the police know a group's route in advance. Having advance knowledge of the timing and whereabouts of a group ride allows the police to reroute pedestrian and vehicular traffic if necessary, block off the group's route so that it may proceed unimpeded
II. The Parade Regulations
The City regulates parades, processions, and other mass gatherings that take place on public roadways through New York City Administrative Code § 10-110, and Title 38 of the Rules of the City of New York, Sections 19-01 through 19-04 (collectively, the "Parade Regulations"). This case concerns the latest amendment to the Parade Regulations to make them apply specifically to group bicycle rides of 50 or more participants.
A. Parade Permits and Applications
The Parade Regulations provide in relevant part as follows:
Parading without a permit is punishable by a fine of up to $25 and/or up to 10 days in jail.
Permit applications must include, among other things, (1) the date, time, and route of the parade, (2) the locations and approximate times for formation and dismissal, (3) the number of participants, (3) the width of the roadway to be occupied by the event, and (4) the identity of a "chief officer," along with his or her address and telephone number.
Subject to exceptions not relevant here, the Police Commissioner is required to grant a parade permit, "after due investigation,"
The Parade Regulations provide also that certain parade routes are off-limits. The Police Commissioner is required to deny applications that seek use of any public place between the hours of 9:00 a.m. and 6:30 p.m., except on Sundays and holidays, that ordinarily is "subject to great congestion or traffic and is chiefly of a business or mercantile character."
When a parade permit is granted, it must "designate specifically the route through which the procession, parade or race shall move, and it may also specify the width of the roadway to be used, and may include such rules and regulations as the police commissioner may deem necessary.
B. "Parade or Procession"
1. Prior Definition
Section 19-02 of the City Rules defines what constitutes a "parade or procession" requiring a permit.
In 2004, the NYPD for the first time attempted to enforce the Parade Regulations against group bicycle rides. Several group riders were arrested and charged with parading without a permit, which led to litigation in state court over the constitutionality of the Parade Regulations and their applicability to group bicycle rides.
In other cases, courts dismissed charges against cyclists of parading without a permit and denied an injunction sought by the City to prevent bicycle riding "en masse" without a permit on the ground that the Parade Regulations' definition of "parade or procession" did not apply to group bicycle rides.
2. Proposals to Amend
In response to these holdings, the NYPD in July 2006 proposed amending Section 19-02 to clarify the definition of "parade or procession." The first proposal was to include in that definition "any procession or race which consists of a group of 20 or more vehicles, bicycles, or other devices moved by human power, or ridden or herded animals proceeding together upon any public street or roadway."
When this proposal met with public opposition,
Finally, on January 26, 2007, the NYPD announced that it would adopt a definition of "parade or procession" that would include "any procession or race which consists of a recognizable group of 50 or more pedestrians, vehicles, bicycles, or other devices moved by human power, or ridden or herded animals proceeding together upon any public street or roadway."
Plaintiffs commenced this action on March 27, 2007. They seek a preliminary injunction barring the City from enforcing the Parade Regulations as amended against group bicycle rides.
I. Preliminary Injunction Standard
A party seeking a preliminary injunction ordinarily must show (1) irreparable harm in the absence of the injunction and (2) either (a) a likelihood of success on the merits or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in the movant's favor.
In this case, plaintiffs seek to enjoin the City from enforcing the Parade Regulations against group bicycle rides of 50 or more and "retaliating and selectively prosecuting the laws against [Blythe, Gosciak, Shura, Nelson, and Son] based on their participation in group bicycle rides, including . . . Critical Mass."
II. Irreparable Harm
"The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury."
Undue delay in seeking interim relief undercuts the sense of urgency that ordinarily accompanies preliminary injunction motions and suggests that irreparable harm is not occurring or imminent.
"Laches is an equitable doctrine applied to deny relief in the court's discretion when `it is clear that a plaintiff unreasonably delayed in initiating an action and a defendant was prejudiced by the delay.'"
Unlike cases in which a plaintiff delayed in moving for a preliminary injunction in connection with a single, isolated event,
III. Likelihood of Success on the Merits
A. Right to Travel
"[F]reedom to travel throughout the United States has long been recognized as a basic right under the Constitution."
When a statute or regulation has "[m]erely . . . an effect on travel," it does not "raise an issue of constitutional dimension."
"A government intrusion on the right to travel will be upheld if the intrusion is deemed `necessary to promote a compelling governmental interest.'"
1. Permit Requirement
Plaintiffs contend that the Parade Regulations violate the right to travel because they prohibit "travel on the public roadways in groups of 50 without advance approval of their route and destination by NYPD."
In Campbell v. Westchester County,
As in Campbell, the permit requirement here effectively mandates some planning of large group bicycle rides. But it does not make the act of bicycling in large groups more burdensome or difficult. The Parade Regulations therefore do not impede, deter, or punish travel throughout New York City. They simply require cyclists to notify the NYPD before they travel in groups of 50 or more.
2. Threatened Enforcement Tactics
Plaintiffs argue also that they are deterred from exercising their right to travel because counsel for the City stated in 2004, during oral argument in a case concerning the constitutionality of the City's previous regulatory scheme, that "if this group [Critical Mass] doesn't get a permit, [the City will] stop this group from riding in its present form. . . . [b]y putting up
If the police actually were to use netting or other means to keep cyclists confined to a particular area, the right to travel perhaps would be implicated. But a threeyear-old statement by a lawyer during oral argument about how the NYPD might have sought to enforce an obsolete statutory scheme does not show a likelihood that it actually will use that tactic in the future.
Moreover, to the extent plaintiffs seek to enjoin the use of netting in the future, they in all likelihood lack standing. There is no evidence that plaintiffs have had this enforcement tactic used on them in the past. Moreover, it is at best speculative that plaintiffs would (1) join a future group bicycle ride involving 50 or more participants, (2) violate the Parade Regulations by failing to obtain a permit, and (3) be prevented from traveling by the NYPD's use of netting. In other words, "it is no more than conjecture to suggest that in every instance of [an actual or attempted group bicycle ride], the police will act unconstitutionally. . . . And it is surely no more than speculation to assert . . . that [plaintiffs themselves] will . . . be involved in one of those unfortunate instances."
If the City were to use unlawful enforcement methods and plaintiffs were to suffer constitutional violations as a result, they could seek redress under 42 U.S.C. § 1983 or other relevant statutes. This motion, however, is not the appropriate vehicle for the Court to consider the constitutionality of a hypothetical enforcement tactic that years ago was threatened by counsel in prior litigation.
B. Freedom of Association
"While the freedom of association is not explicitly set out in the [First] Amendment, it has long been held to be implicit in the freedoms of speech, assembly, and petition."
As with the right to travel, the right of association is not absolute. First, not all burdens on the right are of constitutional dimension. "[T]he government may engage in some conduct that incidentally inhibits protected forms of association."
1. Group Bicycle Rides as Expressive Association
Plaintiffs argue that the Parade Regulations restrict their right to expressive rather than intimate association. Accordingly, the threshold issue is whether participation in group bicycle rides constitutes expressive association protected by the First Amendment — that is, whether group bicycle riding must be regulated by reference to First Amendment jurisprudence.
The City does not dispute that the group bicycle rides at issue here constitute expressive association. Indeed, Judge Pauley already has ruled on this issue with respect to Critical Mass. He held in Bray v. City of New Yorks
Furthermore, 5BBC's rides are intended to instill in participants "a greater understanding of the world and its people through out-of-doors, educational and recreational travel" as well as a sense of leadership, cooperation, and self reliance. Professor Jackson's educational rides are designed to teach students and others in the Columbia community about New York City culture and history. As the Supreme Court held in Boy Scouts of America v. Dale, participation in a group whose "general mission" is to educate and instill values in young people qualifies as expressive association.
2. Impact of the Parade Regulations
The next question is whether the Parade Regulations impose a direct and substantial or significant burden on plaintiffs' association rights so as to trigger the compelling interest test.
Plaintiffs claim that the Parade Regulations infringe their right to expressive association by "limiting the size of the group."
b. Fifth Avenue Restriction
Plaintiffs next argue that the Parade Regulations inhibit association by prohibiting the use of portions of Fifth Avenue by groups of 50 or more. This is unpersuasive. The prohibition does not impair the ability of Critical Mass participants to ride together and demonstrate their commitment to the environment and alternative methods of transportation. Nor does it prevent 5BBC from conducting group rides that promote world knowledge and leadership. Moreover, while Fifth Avenue may be home to many important historical sites that are central to Professor Jackson's educational program,
The most that can be said is that the Fifth Avenue restriction makes group rides of 50 or more cyclists less convenient by foreclosing passage through one of New York's thoroughfares. But imposing an inconvenience on expressive association is far from imposing a direct and substantial or significant burden.
c. Predetermined Routes
Finally, plaintiffs contend that the requirement that permit applications specify the route group rides will take stifles the spontaneity that characterizes Critical Mass and some 5BBC rides.
Plaintiffs point to no evidence indicating that spontaneity is a crucial element of 5BBC's message or a necessary means of
Plaintiffs do offer evidence that spontaneity is central to the message expressed by Critical Mass rides that bicycles are a viable alternative to cars and have an equal right to the road. According to one regular Critical Mass participant, "[i]f police were directing Critical Mass rides, the message would be completely different — perhaps, that bicyclists need the police to make their way, or that the police were there to protect the rest of the City from the bicyclists."
While the predetermined route requirement may dissuade some cyclists from participating in group rides of 50 or more,
C. Free Speech
Public roadways are traditional public fora for the exercise of First Amendment rights.
"[W]hen `speech' and `nonspeech' elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the non-speech element can justify incidental limitations on First Amendment freedoms."
1. Bicycle Riding as Speech
The threshold issue once again is whether group bicycle rides constitute expression such that they must be regulated by reference to First Amendment jurisprudence
2. Content Neutrality
"The principal inquiry in determining content neutrality . . . is whether the government has adopted a regulation of speech because of disagreement with the message it conveys."
Plaintiffs do not appear to contend that the Parade Regulations are anything other than content neutral. Their memorandum states in passing that the regulations are content-based, but points to no evidence and makes no arguments to support this contention.
3. Narrow Tailoring
Plaintiffs do not dispute that the City has a valid and substantial interest in securing the orderly use of public roadways to ensure the safety and convenience of travelers
A content-neutral time, place, or manner regulation "need not be the least restrictive or least intrusive means of" advancing a substantial government interest.
As the declarations of Lieutenants Caneco and Gannon show, groups of 50 or more bicycles can and often do disrupt the orderly flow of traffic and endanger other travelers. Large groups tend to ride aggressively, disobey traffic rules, and block
Plaintiffs nevertheless contend that the Parade Regulations are not narrowly tailored.
a. Fifty-Person Threshold
Plaintiffs concentrate their constitutional attack primarily on the Parade Regulations' 50-person threshold. They contend that this threshold is arbitrary and lower than necessary to achieve the City's substantial interests.
(1) Earlier Proposals
Plaintiffs point first to the fact that the NYPD initially proposed more restrictive 20- and 30-person thresholds, but settled on the less restrictive 50-person threshold after the earlier proposals met with public opposition. According to plaintiffs, this shows that the City's choice of a 50-person threshold was motivated by the desire to thwart group bicycle rides while producing the least public outcry and that the threshold it chose is not narrowly tailored to serve a substantial government interest.
This is unavailing. The City is not prohibited from taking public opinion into account when passing regulations. It is forbidden only to pass a law that does not further a substantial government interest that would not be well served in its absence. Furthermore, the fact that the City ultimately adopted less restrictive regulations than it proposed initially does not demonstrate that the Parade Regulations are not narrowly tailored. It shows at most that the City believed it could advance its interests by less restrictive means than it originally thought necessary. If the City initially had proposed less restrictive measures and then adopted a more restrictive regime, this perhaps would have shown that the City believed it could accomplish its goals through less restrictive means. But that is not what happened.
(2) Past Practice
Plaintiffs next argue that the 50-person threshold is overly restrictive because the NYPD in the past has allowed group rides of 50 or more to proceed without permits. The 50-person threshold, according to plaintiffs, therefore "has been empirically proven unnecessary."
This, too, is unpersuasive, at least for the present. Simply because large group rides took place in the past without police interference does not mean that those rides did not disrupt traffic or threaten the safety of other travelers, or that future rides will not impose the same dangers. Moreover, to the extent the police were able to manage prior group rides, this does not show that the NYPD would not be substantially better able to minimize the hazards associated with group rides or answer the vast demands it faces on scarce law enforcement resources by eliminating the need to guess the timing, whereabouts, and intended routes of large group bicycle rides.
Plaintiffs cite several cases for the proposition that a regulation is not narrowly tailored "when it has been shown that the government sanctioned activity beyond the numerical limits prescribed in the policy."
(3) Impact of Large Group Bicycle Rides
Plaintiffs contend nevertheless that the Parade Regulations are unnecessary because group bicycle rides of 50 or more "enhance safety and do not disrupt traffic."
According to Dr. Pucher, cyclists traveling in large groups are more visible both to pedestrians and motorists. Hence, group riding tends to decrease the number of collisions and increase safety both for cyclists and pedestrians.
Even accepting Dr. Pucher's assertions arguendo, the Court is not persuaded that the Parade Regulations are unnecessary to further a substantial government interest. Large groups of cyclists may be more visible than individual cyclists and may take up less space than large groups of vehicles, but their lack of predictability nevertheless may endanger other travelers "as well as disrupt orderly traffic flow, and their presence may add traffic volume that otherwise would be absent. A permit requirement allows the government to avoid these hazards by making the movement of group bicycle rides more orderly and predictable and rerouting other traffic such that collisions with bicycles are even less likely to occur than otherwise would be the case.
For the same reasons, plaintiffs' argument that the Parade Regulations are unnecessary because group bicycling can be managed by ordinary traffic rules is unavailing. If, as Lieutenants Caneco and Gannon state, individual group cyclists on occasion do not obey traffic rules precisely because they travel in groups — for example, by "corking" intersections or running red lights in order to stay together — then ordinary traffic rules plainly are not sufficient. The NYPD's permitting scheme
(4) Lieutenant Caneco's Statements
Finally, plaintiffs argue that Lieutenant Caneco's statement that groups of 50 or more cyclists present traffic and safety problems should not be credited. They point to the fact that Lieutenant Caneco stated in an affidavit prepared in connection with City of New York v. Times' Up, Inc. that the disruption of pedestrian arid vehicular traffic is minimal when groups smaller than 100 disobey traffic regulations.
Lieutenant Caneco explained this apparent inconsistency in a deposition conducted on April 5, 2007. He stated that he since has changed his belief based on more recent observations and that in 2005, groups of 100 were relatively small compared to other rides that took place at the time. He meant only that the disruptions caused by 100-person and smaller groups were "minimal" by comparison. Now that he has witnessed the behavior of even smaller groups, Lieutenant Caneco stated, he has formed the belief that groups as small as 25, perhaps smaller, have the potential to disrupt traffic.
The arguable inconsistency in Lieutenant Caneco's affidavits perhaps leaves room to doubt whether he believes a 50person threshold is more appropriate than, say, a 100-person threshold. But Lieutenant Caneco's statements are not completely irreconcilable. This especially is so in light of the fact that they were made approximately a year and a half apart and that Lieutenant Caneco had more of an opportunity to observe groups of cyclists smaller than 100 during that time.
Any inconsistency in Lieutenant Caneco's affidavits, however, in all likelihood does not matter. Lieutenant Gannon stated in his declaration that groups of bicycles smaller than 50 potentially pose traffic and safety problems, but that the 50-person threshold "was reached after balancing the City's safety concerns with the concerns voiced by the public regarding the need to apply for permits for each and every small procession taking place in the City"
b. 24-Hour Applicability
Plaintiffs next attack the Parade Regulations on the ground that they apply to all group bicycle rides of 50 or more regardless of when they take place. According to plaintiffs, "[b]lanket, round-the clock route restrictions on group bicycle rides are inappropriate because some rides, like Jackson's, are held late at night when there is little or no traffic."
Certainly a permitting scheme that took account of traffic patterns on every possible route at every possible time of day would be a less restrictive means of advancing the City's substantial interests. The Parade regulations, however, need not be drawn so narrowly. They need only advance a substantial interest that would be less well served in their absence. Plaintiffs offer no evidence to suggest that no area in New York City experiences vehicular or pedestrian traffic at night. The City's permit scheme therefore ensures that the NYPD can take appropriate precautions in the event that a proposed route were to include an area that was expected to experience late-night traffic.
c. Fifth Avenue Restriction
Plaintiffs argue also that the Fifth Avenue restriction is inappropriate because Fifth Avenue "is the safest and most desirable on-street southbound route for most group bicycle rides" and that "banning group bicyclists from [Fifth Avenue] only imposes added danger on them without serving any useful purpose."
First, when police know in advance what route a large group of cyclists will take, they are able to block off the route and redirect other traffic. This, if anything, would improve the safety of cyclists traveling along streets other than Fifth Avenue.
Second, while groups of cyclists might proceed safely down Fifth Avenue, this does not mean that they do not endanger pedestrians and motorists or otherwise disrupt traffic. Keeping large groups off Fifth Avenue protects other users of the avenue and thus does not fail to serve "any useful purpose."
d. Frequency of Group Bicycle Rides
Plaintiffs contend that the permitting scheme "burdens bicyclists far more heavily than organizers of annual parades or adhoc political demonstrations, for no apparent purpose," because group bicycle rides occur more frequently than traditional parades.
e. The "Chief Officer" Requirement
Finally, plaintiffs argue that the requirement that parade permit applicants designate a "chief officer" is overly burdensome. They claim that this requirement will deter potential organizers of large group rides from applying for permits because they will be fearful of taking legal responsibility for the actions of other riders.
At oral argument, the City explained that the "chief officer" designated in a permit application is not responsible legally for the actions of other cyclists but rather is intended to be a point person with whom the police can discuss in a meaningful way how the proposed event is going to be handled.
Even absent this representation by the City, plaintiffs' argument still would fail. Generally, "[i]mposing criminal liability for the acts of another offends substantive due process."
* * *
The Parade Regulations, like all prophylactic measures that draw numerical lines, inevitably are overinclusive.
In the last analysis, the Court is not persuaded that plaintiffs are likely to prove that the Parade Regulations are unnecessary to further a significant government interest, or that that interest would not be served less effectively in their absence. Indeed, as Judge Pauley noted in Bray v. City of New York, large groups of cyclists "cannot simply go `wherever their wheels take them' month after month without someone getting hurt." At some point, bicycle rides of a certain magnitude "require coordination with the police for everyone's safety."
4. Ample Alternative Channels
The final requirement, that the Parade Regulations leave open ample alternative channels of expression, is easily met. The regulations do not ban group bicycle riding on public roads. Nor do they have any "effect on the quantity or content of that expression."
D. Prior Restraint and Vagueness
Regulations that require permits for expressive activity in traditional public fora are prior restraints on speech and therefore are unconstitutional if they vest in a public official unbridled discretion to deny permits. The Supreme Court held in Forsyth County v. Nationalist Movement
1. "Events of Extraordinary Public Interest"
Plaintiffs challenge the "events of extraordinary public interest" exception to the Parade Regulations' Fifth Avenue restriction.
Plaintiffs do not challenge the extraordinary event exception on its face. Rather, they claim that the exception has been applied to allow events that do not fit within the language of Section 19-01(b) to take place on Fifth Avenue, thus rendering the exception meaningless and susceptible to arbitrary application.
The only evidence in the record concerning the City's issuance of special permits under the extraordinary event exception is the declaration of Lieutenant Centamore, the supervisor of the division of the NYPD that issues parade permits. According to Lieutenant Centamore, special permits for use of Fifth Avenue have been granted for a ticker tape parade to celebrate a World Series victory by the New York Yankees and the arrivals in New York of Nelson Mandela and the Pope. Lieutenant Centamore stated also that the mayor approved a special permit for use of Fifth Avenue on June 19, 2004 in connection with a relay in which the Olympic torch was carried through 34 cities across five continents, including New York.
Plaintiffs do not contend that the ticker tape parade or the events honoring the Pope and Nelson Mandela fall outside Section 19-01(b). They do claim, however, that "[t]he mayoral permission given to the [Olympic relay] cannot be squared with any reasonable interpretation of [Section 19-01(b)]."
Plaintiffs contend also that the City has granted special permits for a peace march and a demonstration in connection with the shooting of an individual named Sean Bell. But the record contains no evidence concerning these events. The Court therefore has no basis from which to conclude that these events occurred or, if they did, that they either were granted special permits or took place on Fifth Avenue without permits and without police interference. Accordingly, the Court disregards the claims about these events.
2. "Great Congestion or Traffic"
Plaintiffs next challenge Section 10-110(a)(2), which requires the Police Commissioner to deny a parade permit "for the use of any street . . . which is ordinarily subject to great congestion or traffic and is chiefly of a business or mercantile character," from 9:00 a.m. to 6:30 p.m., except on holidays and Sundays when "places of business along the route proposed are closed."
As a preliminary matter, the Parade Regulations, contrary to plaintiffs' assertions, do not permit the City effectively to banish group bicycle rides of 50 or more from the streets. The regulations make clear that when a permit application is disapproved because the proposed event will interfere with traffic in the area, the NYPD "shall employ reasonable efforts to offer the applicant a suitable alternative location, date and/or time for the parade."
In addition, Critical Mass rides in New York occur at 7:00 p.m.,
This ultimately may be beside the point, however, as the Court is not persuaded that the language of Section 10-110(a)(2) is unconstitutionally vague. It directs the Police Commissioner to consider "objective factors" such as the location of the proposed procession and the time it is occurring.
Furthermore, the language of Section 10-110(a)(2) does not "allow the [Police Commissioner] to consider the content or purpose of the parade."
3. "Recognizable Group"
Finally, plaintiffs challenge the "recognizable group" standard that triggers the Parade Regulations' permit requirement. Their argument, however is confusing. Citing Forsyth plaintiffs contend that the "recognizable group" standard requires police, in assessing whether or not to arrest or ticket cyclists traveling in a group, "to appraise facts (by engaging in an on-the-spot head count of group ride members), exercise judgment (by deciding which riders are actually part of the group ride), and form an opinion (as to which riders should be arrested and/or ticketed for parading without a permit)."
The Forsyth prior restraint analysis, however, is appropriate for assessing whether a licensing scheme grants an issuing official unbridled discretion to deny a license, not whether an enforcing officer is given inadequate guidance as to what constitutes an offense.
The gist of plaintiffs' argument is not that the Parade Regulations fail to provide ample notice to the citizenry about what conduct is prohibited. Rather, it is that the police are invited to apply the regulations in a discriminatory fashion. The Court is not persuaded, however, that the "recognizable group" standard is so vague as to invite arbitrary enforcement.
First, when Section 19-02(a) is considered in its entirety,
The Court is sympathetic to plaintiffs' concerns. It recognizes that tensions long have been high between Critical Mass participants and the NYPD
The foregoing constitute the Court's findings of fact and conclusions of law.
While the "substantial interest" test that applies here is called "intermediate scrutiny," e.g., Vincenty v. Bloomberg, 476 F.3d 74, 84 (2d Cir.2007), the Eighth Circuit's point nevertheless is apposite.