METROPOLITAN COUNCIL, INC. v. SAFIR
99 F.Supp.2d 438 (2000)
METROPOLITAN COUNCIL, INC., Plaintiff,
Howard SAFIR, Commissioner of the New York City Police Department; Henry Stern, Commissioner of the New York City Parks Department; and the City of New York, Defendants.
No. 00 Civ. 4254(KMW).
United States District Court, S.D. New York.
June 12, 2000.
Christopher T. Dunn, Norman Siegel, Arthur Eisenberg, New York Civil Liberties Union Foundation, New York, NY, for Metro. Council, Inc.
OPINION & ORDER
KIMBA M. WOOD, District Judge.
Plaintiff Metropolitan Council, Inc. is a tenants' advocacy organization that opposes rent increases proposed by the Rent Guidelines Board (the "Board"), the New York City (the "City") agency that sets the maximum annual rent increases for New York's rent-regulated apartments. Plaintiff plans to protest the proposal, and to pressure the City's Mayor to take steps to stop it, by conducting a series of events on Tuesday and Wednesday, June 13-14, 2000, shortly before the proposal is examined at a hearing scheduled for Thursday, June 15. Part of the planned protest involves a vigil near the Mayor's residence, Gracie Mansion, in which participants will lie and sleep on a City sidewalk in order to convey symbolically the homelessness plaintiff contends will be caused if the proposed rent increases are adopted. On June 8, 2000, plaintiff moved for preliminary injunctive relief enjoining the City from preventing vigil participants from lying or sleeping on the City sidewalk, interference plaintiff anticipates because of the City's policy of preventing any person from sleeping on City sidewalks under any circumstances, as well as its past application of this policy to persons lying and sleeping on City sidewalks as part of a political protest.
The City has taken the position that a total ban on sleeping on City sidewalks is justified by its interests in safeguarding sleeping persons from the dangers of public places and in keeping the sidewalks clear of obstructions. The City argues that this ban should apply to the instant vigil, notwithstanding its concession that these sleeping vigil participants will neither be endangered nor obstruct the sidewalk. For the reasons stated more fully below, the Court concludes that under these circumstances, the First Amendment of the United States Constitution does not allow the City to prevent an orderly political protest from using public sleeping as a means of symbolic expression. Although the City maintains that such a conclusion implies that it cannot ever regulate disorderly public sleeping, the Court disagrees in light of the obvious and dramatic differences between the forms of conduct in question. In granting plaintiff's motion for a preliminary injunction, the Court expresses no opinion on and erects no bar to the City's prosecution for disorderly conduct of persons who are vulnerable and/or risk creating obstructions when they sleep prone on a City sidewalk.I. Background
The facts relevant to this dispute are simple and undisputed. They have been established by affidavits submitted by the parties, all of which were received in evidence at a hearing held on Friday, June 9, 2000; there were no objections, and no party sought to cross-examine the affiants, who were available in the courtroom. The parties also stipulated to a number of facts on the record. (See generally Transcript of June 9, 2000 Hearing Before Hon. Kimba M. Wood in Metropolitan Council, Inc. v. Safir, 00 Civ. 4254(KMW) ("Tr.")).
Plaintiff seeks to hold a three-part protest in the evening of June 13 and the morning of June 14. First, the event will begin with a press conference between 6 p.m. and 8 p.m. in Carl Schurz Park (the "Park"), which abuts Gracie Mansion. Second, at 8 p.m. participants will begin a five-hour vigil in the Park (the "Park phase"), which will involve persons lying on the ground in order to convey symbolically
the additional homelessness that plaintiff alleges will result from the rent increases proposed by the Board. There is no dispute as to these two parts of the protest (the press conference and the Park phase of the vigil), both of which will be allowed pursuant to permits issued by the Parks Department.1