METROPOLITAN COUNCIL, INC. v. SAFIR
99 F.Supp.2d 438 (2000)
METROPOLITAN COUNCIL, INC., Plaintiff,
v.
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 & ORDERKIMBA 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. BackgroundThe 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
1. At the outset of this litigation, plaintiff believed that vigil participants would not be permitted to lie in the Park and sought preliminary injunctive relief that would have barred any interference with the Park phase of the vigil. The parties have subsequently reached an agreement as to the Park phase, and plaintiff has withdrawn its request for an injunction with respect to it. (See Tr. at 3.)
2. Counsel for defendants has raised the possibility, but is not currently contending, that the sidewalks in question could be subject to a licensing arrangement between the City and the adjoining apartment building that differs from what is ordinarily considered a public City sidewalk. (Tr. at 28-29.) In the absence of either evidence or a representation from defendants that such an arrangement is actually present here, the Court disregards this possibility. In any event, it is by no means clear that it is significant whether the sidewalk's public character rests on City title, license, or some other arrangement. See Denver Area Educ. Telecom. Consortium, Inc. v. Federal Commun. Comm'n,518 U.S. 727, 791-92, 116 S.Ct. 2374, 135 L.Ed.2d 888 (1996) (Kennedy, J., concurring in part and dissenting in part). 3. The City specifically notes that it makes no exception for expressive activity, and the sleeping ban has been invoked in the past to arrest persons attempting to sleep on City sidewalks as part of a political protest.
4. Plaintiff anticipates that few, if any, vigil participants will sleep past 6 a.m.
5. Defendants suggest that they were initially misled that the sidewalk phase of the vigil would occur on the east side of East End Avenue, which is within the Parks Department's jurisdiction and thus requires a permit for a demonstration of this size, not the west side of East End Avenue, which is a City sidewalk. Plaintiff's counsel disagrees. The Court notes that plaintiff's letter of June 2, 2000, clearly refers to use of "City sidewalks," distinguishes between the park phase (which it notes would be subject to Parks Department rules) and the sidewalk phase, and refers to "an appropriate sidewalk area" without suggesting any limitation to the avenue's east side.
6. When the party seeking a preliminary injunction has unreasonably delayed in initiating litigation, the Court may in its discretion elect to require a stronger showing on the merits rather than denying relief altogether. See Irish Lesbian and Gay Org. v. New York State Bd. of Ancient Order of Hibernians,788 F.Supp. 172, 175-76 (S.D.N.Y.1992) (Leval, J.). The Court declines to do so here for the reasons stated above in the discussion of laches. 7. In any event, the Court concludes that plaintiff is clearly likely to succeed on the merits, so the result does not turn on the mandatory/prohibitory distinction.
8. Moreover, the Bery court applied the full time, place, and manner test after noting that the district court had applied the O'Brien test without "address[ing] the question of whether alternative channels of expression remained open to appellants." 97 F.3d at 693.
9. The City justifies its ban on sleeping or lying on City sidewalks by reference to the dangers posed by sleeping individuals. The City extends the ban, however, to persons who are lying on the sidewalk but awake, because the City claims it would impose an undue burden on police officers to determine who is awake and who is asleep.
10. Similarly, "narrow tailoring" is not assured by the mere fact that the ban's application to some other conduct, or even a substantial amount of conduct, does further the City's general interests.
11. The Court also found it significant that "the Park Service neither attempts to ban sleeping generally nor to ban it everywhere in the parks." 468 U.S. at 295, 104 S.Ct. 3065.
12. Unlike the situation here, the "major value" of sleeping to the demonstration in Clark was that it facilitated a continuous presence in the parks and the attraction of homeless people to the tent city, 468 U.S. at 296, 104 S.Ct. 3065; here, sleeping plays a more significant expressive role relative to other aspects of the protest and is not primarily facilitative.
13. The Complaint requests that the Court "enjoin[] the defendants from taking any steps that would prevent the plaintiff from engaging in the symbolic expressive activity of lying or sleeping on the public sidewalk" (emphasis added) during the planned vigil.
14. At oral argument, defendants' counsel suggested that some arrests in the past were based on disobedience of police orders to move to another location and/or refrain from sleeping. See N.Y. Penal Law § 240.20[6]. For present purposes, however, there is no significant difference between an arrest directly based on sleeping on a City sidewalk and an arrest based on disobeying an order not to sleep there. See Wright v. State of Georgia,373 U.S. 284, 291-92, 83 S.Ct. 1240, 10 L.Ed.2d 349 (1963). 15. Defendants have suggested that their nosleeping policy has already been implicitly approved by the New York State courts, but their authorities address only the propriety of prosecutions for particular incidents in which speech became disorderly. These authorities do not consider a general prophylactic rule prohibiting conduct that has some tendency to become disorderly, nor do they suggest that application of the disorderly conduct statute to expressive conduct can never be unconstitutional. See People v. Tichenor,89 N.Y.2d 769, 658 N.Y.S.2d 233, 680 N.E.2d 606 (1997) (upholding prohibition on use of abusive or obscene language against facial challenge and upholding conviction for disorderly conduct arising from defendant's instigation of a confrontation with a police officer through the use of obscene language); People v. Turner,48 Misc.2d 611, 265 N.Y.S.2d 841 (1965) (upholding convictions for disorderly conduct arising from defendants' refusal to obey a police order to disperse when a "demonstration was interfering with pedestrian and vehicular traffic").