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This program has been approved by the Board of Continuing Legal Education of the Supreme Court of New Jersey for 8hours of total CLE credit. Of these, 3 qualify as hours of credit for Ethics/Professionalism, and 0 qualify as hours of credittoward certification in civil trial law, criminal trial law, workers compensation law and/or matrimonial law.
Protest Lawyering: theory and Practice
Prepared in connection with a Continuing Legal Education course presented at New York County Lawyers’ Association, 14 Vesey Street, New York, NY
presented on Friday, February 22, 2013.
P r o g r A m C o - s P o N s o r
NYCLA’s Civil Rights & Liberties Committee
P r o g r A m C o - C h A I r s :
Louis Crespo, Special Referee, Sup. Ct., NY CountySamuel B. Cohen, Stecklow Cohen & Thompson
8 TRANSITIONAL & NON-TRANSITIONAL MCLE CREDITS: This course has been approved in accordance with the requirements of the New York State Continuing Legal Education Board for a maximum of 8 Transitional & Non-Transitional credit hours: 3 Ethics; 2 Skills; 3 PP
Information Regarding CLE Credits and Certification Protest Lawyering: Theory and Practice
Friday, February 22, 2013; 9:00 AM to 5:00 PM
The New York State CLE Board Regulations require all accredited CLE providers to provide documentation that CLE course attendees are, in fact, present during the course. Please review the following NYCLA rules for MCLE credit allocation and certificate distribution.
i. You must sign-in and note the time of arrival to receive your
course materials and receive MCLE credit. The time will be verified by the Program Assistant.
ii. You will receive your MCLE certificate as you exit the room at
the end of the course. The certificates will bear your name and will be arranged in alphabetical order on the tables directly outside the auditorium.
iii. If you arrive after the course has begun, you must sign-in and note the time of your arrival. The time will be verified by the Program Assistant. If it has been determined that you will still receive educational value by attending a portion of the program, you will receive a pro-rated CLE certificate.
iv. Please note: We can only certify MCLE credit for the actual time
you are in attendance. If you leave before the end of the course, you must sign-out and enter the time you are leaving. The time will be verified by the Program Assistant. Again, if it has been determined that you received educational value from attending a portion of the program, your CLE credits will be pro-rated and the certificate will be mailed to you within one week.
v. If you leave early and do not sign out, we will assume that you left at the midpoint of the course. If it has been determined that you received educational value from the portion of the program you attended, we will pro-rate the credits accordingly, unless you can provide verification of course completion. Your certificate will be mailed to you within one week.
Thank you for choosing NYCLA as your CLE provider!
New York County Lawyers’ Association
Continuing Legal Education Institute 14 Vesey Street, New York, N.Y. 10007 • (212) 267-6646
Protest Lawyering: Theory and Practice
Friday, February 22, 2013 9:00AM – 5:00 PM
Program Co-sponsor: NYCLA’s Civil Rights & Liberties Committee
Program Co-Chairs: Louis Crespo, Special Referee, Sup. Ct., NY County and Samuel B. Cohen, Stecklow Cohen & Thompson
Faculty: Samuel Cohen, Stecklow Cohen & Thompson; Alan Levine, LatinoJustice PRLDEF; Meghan Maurus, New York Law Collective; David Rankin, Rankin & Taylor; Paula Segal, 596Acres.org; Norman Siegel, Siegel Teitelbaum & Evans LLP; Michael L. Spiegel, Esq.; Wylie Stecklow, Stecklow Cohen & Thompson;
AGENDA 8:30AM – 9:00AM Registration 9:00AM – 11:05AM Morning Session 1: Right to Engage in Peaceful Protest
Activity Right to Distribute Material/Public Press
Conference/Amplification Right Protest & Reasonable Limitation
11:05 AM – 11:15 AM BREAK 11:15 AM – 12:40 PM Morning Session 2: Applicable Federal, State, and Municipal
Statutes, Codes and Regulations Federal and State Case Interpretation
Ethics: Attorney/Client and Non-Permit Protest/Confidentiality vs Disclosure
12:40PM – 1:15PM Lunch (On Your Own) 1:15PM – 3:20PM Afternoon Session 1: Common Protest Related Criminal
Charges Utilizing Common Evidentiary Resources 3:20PM – 3:30PM BREAK 3:30PM – 4:45 PM Afternoon Session 2: Ethics: Rights, Duties and Accountability Legal Observer and Protest Lawyer Models 4:45 PM – 5:30 PM Networking Reception
New York County Lawyers’ Association
Continuing Legal Education Institute 14 Vesey Street, New York, N.Y. 10007 • (212) 267-6646
Protest Lawyering: Theory and Practice
Friday, February 22, 2013 9:00AM – 5:00 PM
Program Co-sponsor: NYCLA’s Civil Rights & Liberties Committee
Program Co-Chairs: Louis Crespo, Special Referee, Sup. Ct., NY County and Samuel B. Cohen, Stecklow Cohen & Thompson
Faculty: Samuel Cohen, Stecklow Cohen & Thompson; Alan Levine, LatinoJustice PRLDEF; Meghan Maurus, New York Law Collective; David Rankin, Rankin & Taylor; Paula Segal, 596Acres.org; Norman Siegel, Siegel Teitelbaum & Evans LLP; Michael L. Spiegel, Esq.; Wylie Stecklow, Stecklow Cohen & Thompson;
Table of Contents
Morning Sessions -- Right to Protest and Knowing Your Rights
Sound Device Permit Application NYC Zoning Resolution NYC Charter, Code, Amendments & Rules, Title 10, Chapter 1, Public Safety People v. Nixson Dinler v. City of New York Shuttlesworth v. City of Birmingham, Ala Application for Parade Permit Evans v. Newton New York v. Beck New York City, N.Y., Code § 10-110 N.Y. Comp. Codes R. & Regs. tit. 9, § 300-1.2, Title 9. Metropolitan Council, Inc. v. Safir NYPD Legal Guidelines for Republican National Convention 2004 Federal Special Permit – National Park Service, NY Sample
Afternoon Sessions: Common Protest Related Criminal Charges; Common
Evidentiary Resources; Legal Observer and Protest Lawyer Models
New York v. Nunez New York v. Nunez, Amicus Brief in Support of Motion to DismissMEMORANDUM OF LAW New York v. Nunez, Exhibits to Amicus Brief Citywide Privately Owned Public Space, Current Public Plaza Standards
Ethics Materials
Within Each Lawyer’s Conscious a Touchstone: Law, Morality, and Attorney Civil Disobedience, by Robert M. Palumbos, 153 University of Pennsylvania Law Review 1053 Lawyering for Social Change, Karen L. Loewy, 27 Fordham Urban Law Journal 1869
PROTEST LAWYERING: Theory and Practice
FEBRUARY 22, 2013
COURSE OUTLINE
Morning Session 1:
Primer: Intro., Right to Protest / Knowing Your Rights I. Right to engage in peaceful protest activity (demonstration/rallies/march)
A. Public Areas 1. sidewalks, parks, and streets
a) regulations, or lack thereof, of sidewalks and streets: do you need a permit to demonstrate?
b) Parade Permit c) Parks Assembly/Event Permit.
B. POPs 1. What is a POPS space?
a) Privately Owned Public Space b) POPS Designations c) Lack of clear 1st amendment positioning
II. Right distribute material/public press conference/amplification
A. handbills/leaflets 1. relevant guidelines and rules
B. press conferences 1. on streets 2. in parks 3. amplified sound
C. public mic., 1. Amplified sound permit 2. People’s Microphone
III. Right Protest & Reasonable Limitation
A. content / speech B. time and place C. permit/license
Morning Session 2: Permitting
IV. Applicable Fed., State and Municipal Statutes, Codes, Regulations
A. Federal Property / Law, Regs., and Rules B. State Property / Laws, Regs., and Rules C. Municipal Property / Regs, and Rules
V. Federal & States Cases Interp., Applicable Fed., State and Municipal Statutes,
Codes, Regulations
VI. Ethics: Attorney/Client & Non-Permit Protest / Confidentiality v Disclosure Afternoon Session 1 VII. Common protest related criminal charges
A. Elements of common protest charges B. Practice tips for defending protesters- bail to jail
1. Tracking arrestees through the system 2. Arraignment 3. Mass defense coordination 4. Liaising with prosecutors 5. Motion practice 6. Dispositions and counseling re: dispositions
VIII. Utilizing common evidentiary resources
A. Brief recap on introducing media evidence, i.e., videos, photos and recordings B. Best practices for witness statements C. Best practices for collecting recordings
1. Demand for preservation of ambient recordings (security videos, etc.) 2. TARU video 3. Internet resources 4. Livestream video
Afternoon Session 2Ethics: –Rights, Duties, Obligations and Accountability A. When intervention on behalf of protesters is permissible B. When intervention with protesters is required C. Disclosure of interest/affiliation under various models D. Disclosure of interest-Civil litigation E. Lawyering in the context of civil disobedience
X. Legal Observer and Protest Lawyer Models
A. NLG legal observer model (fact finding) B. Retained counsel for organization model C. Counsel at large model
Morning Sessions -- Right to Protest and Knowing Your Rights
Sound Device Permit Application NYC Zoning Resolution NYC Charter, Code, Amendments & Rules, Title 10, Chapter 1, Public Safety People v. Nixson Dinler v. City of New York Shuttlesworth v. City of Birmingham, Ala Application for Parade Permit Evans v. Newton New York v. Beck New York City, N.Y., Code § 10-110 N.Y. Comp. Codes R. & Regs. tit. 9, § 300-1.2, Title 9. Metropolitan Council, Inc. v. Safir NYPD Legal Guidelines for Republican National Convention 2004 Federal Special Permit – National Park Service, NY Sample
NOT A PERMIT
From To
SOUND DEVICE APPLICATIONPD 656-041A (Rev. 09-07)
Precinct __________________________________
Approval Date __________________________________
INSTRUCTIONS1. This is an application, NOT a sound device permit.2. All answers must be either typewritten or printed in ink.3. File application in the precinct where the device is to be used.4. File application at least five days before the day of the event. Exceptions to this requirement are listed below.5. A fee of $45 for the first day’s use of the permit will be required upon approval of the application and receipt
of the sound device permit.6. Make Bank Teller’s Check, Certified Check or Money Order payable to the Police Department, City of New York.7. If approved, the permit is to be picked up on the day of the event or as directed by the precinct staff.
Name of Applicant Phone
Are Funds to be Solicited? Yes No Has Permit from Dept. of Social Services been obtained? Yes No
Dept. of Social Services Permit No. _________________ If No, explain:
Signature of Applicant or Agent
Investigated By: Precinct: Approved Disapproved If Disapproved, Reason:
Who Notified: Approved Disapproved If Disapproved, Reason:
Does Event Affect Adjoining Precinct? Yes No If Yes, Who Notified:Comments:
Event Location Date Time
Event Location Date Time From To
Is location within 500 feet of any School, YesChurch, Hospital or Similar Institution? No
Approximately how many feet from the device is speaker’svoice proposed to be heard?
______________
Approximately how many people will be at event?
______________
Is Applicant a Corporation, Organization, or Association? Yes No If Yes, Indicate:Name Phone
PERMIT TO OPERATE SOUND DEVICESSection 10-108 of the Administrative Code, in Relation to Use of Sound Devices, provides as follows:1. SPECIAL RESTRICTIONS. The police commissioner shall not issue any permit for the use of a sound device or apparatus: In any location within five hundred feetof a school, courthouse or church, during the hours of school, court or worship, respectively, or within five hundred feet of any hospital or similar institution; in anylocation where the commissioner, upon investigation, shall determine that the conditions of vehicular or pedestrian traffic or both are such that the use of such adevice or apparatus will constitute a threat to the safety of pedestrians or vehicular operators; in any location where the commissioner, upon investigation, shalldetermine that conditions of overcrowding or of street repair or other physical conditions are such that the use of a sound device or apparatus will deprive the public ofthe right to the safe, comfortable, convenient and peaceful enjoyment of any public street, park or place for street, park or other public purposes, or will constitute athreat to the safety of pedestrians or vehicle operators; in or on any vehicle or other device while it is in transit; between the hours of 10 p.m. and 9 a.m.; or betweenthe hours of 8 p.m. or sunset, whichever is later, and 9 a.m. on weekdays and between the hours of 8 p.m. or sunset, whichever is later, and 10 a.m. on weekendsand public holidays, in any location within fifty feet of any building that is lawfully occupied for residential use. The distance of fifty feet shall be measured in astraight line from the point on the exterior wall of such building nearest to any point in the location for which the permit is sought.2. POWER OF POLICE COMMISSIONER. Any permit issued pursuant to this section may be revoked by the police commissioner for cause.3. FEES. The fee for each sound device permit in connection with matters of public interest or in political campaigns shall be $45.00 per day. No fees to be chargedfor permits issued for use of sound devices used by any bureau, commission, board or department for the United States government, the State of New York, and theCity of New York.4. VIOLATIONS. Any person who shall violate any provision of this section, upon conviction thereof, shall be punished by a fine of not more than one hundred dollarsor imprisonment for thirty days, or both. Any person who shall violate any provision of this section, any rule promulgated pursuant thereto or the terms of a permitissued pursuant to this section, shall be liable for a civil penalty recoverable in a civil action brought in the name of the police commissioner or the commissioner ofenvironmental protection or in a proceeding before the environmental control board in an amount of two hundred fifty dollars for the first violation, five hundred dollarsfor the second violation and seven hundred fifty dollars for the third and each subsequent violation. However, any person who commits a fourth and any subsequentviolation within a period of six months shall be classified as a persistent violator and shall be liable for a civil penalty of one thousand dollars for each such violation.
Address
Address
Signature of Commanding Officer
Penalty for Falsification of any statement made herein is an offensepunishable by a fine or imprisonment or both.
Yes No
Area Office Notified
New York City, N.Y., Code § 10-108
NEW YORK CITY CHARTER, CODE, AMENDMENTS & RULESNEW YORK CITY ADMINISTRATIVE CODE
TITLE 10. PUBLIC SAFETYCHAPTER 1. PUBLIC SAFETY.
Currency up to Local Law 40 of 2012 and Chapters 1 - 447 of the Laws of the State of NewYork for 2012
Currency up to Local Law 40 of 2012 and Chapters 1 - 447 of the Laws of the State of NewYork for 2012
§ 10-108. Regulation of sound devices or apparatus.
a. Legislative declaration. It is hereby declared that the use or operation of any radio device or apparatus or any
device or apparatus for the amplification of sounds from any radio, phonograph or other sound-making or
sound-producing device, or any device or apparatus for the reproduction or amplification of the human voice or
other sounds, in front of or outside of any building, place or premises, or in or through any window, doorway or
opening of such building, place or premises, abutting or adjacent to a public street, park or place, or in or upon any
vehicle operated, standing or being in or upon any public street, park or place, where the sounds therefrom may
be heard upon any public street, park or place, or from any stand, platform or other structure, or from any airplane
or other device used for flying, flying over the city, or on a boat or on the waters within the jurisdiction of the city,
or anywhere on or in the public streets, parks or places, is detrimental to the health, welfare and safety of the
inhabitants of the city, in that such use or operation diverts the attention of pedestrians and vehicle operators in the
public streets, parks and places, thus increasing traffic hazards and causing injury to life and limb. It is hereby
further declared that such use or operation disturbs the public peace and comfort and the peaceful enjoyment by
the people of their rights to use the public streets, parks and places for street, park and other public purposes and
disturbs the peace, quiet and comfort of the neighboring inhabitants. Therefore, it is hereby declared as a matter
of legislative determination that the prohibition of such use or operation for commercial or business advertising
purposes and the proper regulation of such use and operation for all other purposes is essential to protect the health,
welfare and safety of the inhabitants of the city, to secure the health, safety, comfort, convenience, and peaceful
enjoyment by the people of their rights to use the public streets, parks and places for street, park and other public
purposes and to secure the peace, quiet and comfort of the city's inhabitants. It is hereby further declared as a matter
of legislative determination that the expense of supervising and regulating the use and operation of such sound
1
devices and apparatus for purposes other than commercial and business advertising purposes should be borne by
the persons using or operating such devices and apparatus and that the requirement of a nominal fee for the issuance
of a permit for such use and operation as hereinafter prescribed is intended to defray the expenses of regulating
such use or operation for the health, welfare and safety of all the people.
b. Definitions. As used in this section: 1. The term “public holidays” shall mean those days expressly set forth insection twenty-four of the general construction law.
2. The term “sound device or apparatus” shall mean any radio device or apparatus, or any device or apparatus forthe amplification of any sounds from any radio, phonograph, or other sound-making or sound-producing device,or any device or apparatus for the reproduction or amplification of the human voice or other sounds;
3. The phrase “to use or operate any sound device or apparatus in, on, near or adjacent to any public street, parkor place,” shall mean to use or operate or cause to be used or operated any sound device or apparatus in front oroutside of any building, place or premises, or in or through any window, doorway or opening of such building,place or premises, abutting on or adjacent to a public street, park or place, or in or upon any vehicle operated,standing or being in or on any public street, park or place, where the sounds therefrom may be heard upon anypublic street, park or place, or from any stand, platform or other structure, or from any other airplane or otherdevice used for flying, flying over the city, or on a boat or on the waters within the jurisdiction of the city, oranywhere on the public streets, parks or places.
c. Use and operation of the sound devices and apparatus for commercial and business advertising purposes. It shallbe unlawful for any person to use or operate any sound device or apparatus in, on, near or adjacent to any publicstreet, park or place, for commercial and business advertising purpose.
d. Use and operation of sound devices and apparatus for other than commercial and business advertising purposes;permit required. It shall be unlawful for any person to use or operate any sound device or apparatus, in, on, nearor adjacent to any public street, park or place, unless such person shall have first obtained a permit to be issued bythe police commissioner in the manner hereinafter prescribed and unless the police commissioner shall comply withthe provisions of this section and the terms and conditions prescribed in such permit.
e. Applications. Each applicant for a permit to use or operate a sound device or apparatus in, on, near or adjacentto any public street, park or place shall file a written application with the police commissioner, at the policeprecinct covering the area in which such sound device or apparatus is to be used or operated, at least five days priorto the date upon which such sound device or apparatus is to be used or operated. Such application shall describethe specific location in which such sound device or apparatus is proposed to be used or operated, the day and thehour or hours during which it is proposed to be used or operated, the volume of sound which is proposed to be usedmeasured by decibels or by any other efficient method of measuring sound, and such other pertinent informationas the police commissioner may deem necessary to enable the police commissioner to carry out the provisions ofthis section.
f. Issuance of permit; terms. The police commissioner shall not deny a permit for any specific time, location or use,to any applicant who complies with the provisions of this section, except for one or more of the reasons specifiedin subdivision g hereof or for non-payment of the fee prescribed in subdivision h hereof, or to prevent overlappingin the granting of permits, provided, however, that a permit issued for multiple days shall be issued only formultiple days within a period of five consecutive calendar days and only at the same location. Each permit issued
2
pursuant to this section shall describe the specific location in which such sound device or apparatus may be usedor operated thereunder, the exact period of time for which such apparatus or device may be operated in suchlocation, the maximum volume of sound which may be employed in such use or operation and such other termsand conditions as may be necessary, for the purpose of securing the health, safety, comfort, convenience andpeaceful enjoyment by the people of their right to use the public streets, parks or places for street, park or otherpublic purposes, protecting the health, welfare and safety of the inhabitants of the city, and securing the peace, quietand comfort of the neighboring inhabitants.
g. Special restrictions. The police commissioner shall not issue any permit for the use of a sound device orapparatus:
1. In any location within five hundred feet of a school, courthouse or church, during the hours of school, court orworship, respectively, or within five hundred feet of any hospital or similar institution;
2. In any location where the commissioner, upon investigation, shall determine that the conditions of vehicular orpedestrian traffic or both are such that the use of such a device or apparatus will constitute a threat to the safety ofpedestrians or vehicular operators;
3. In any location where the commissioner, upon investigation, shall determine that conditions of overcrowdingor of street repair or other physical conditions are such that the use of a sound device or apparatus will deprive thepublic of the right to the safe, comfortable, convenient and peaceful enjoyment of any public street, park or placefor street, park or other public purposes, or will constitute a threat to the safety of pedestrians or vehicle operators;4. In or on any vehicle or other device while it is in transit;
5. Between the hours of ten p.m. and nine a.m.; or
6. Between the hours of eight p.m. or sunset, whichever is later, and nine a.m. on weekdays and between the hoursof eight p.m. or sunset, whichever is later, and ten a.m. on weekends and public holidays, in any location withinfifty feet of any building that is lawfully occupied for residential use. The distance of fifty feet shall be measuredin a straight line from the point on the exterior wall of such building nearest to any point in the location for whichthe permit is sought.
g. Special restrictions. The police commissioner shall not issue any permit for the use of a sound device orapparatus:
This subd. g expires Oct. 10, 2010.
1. In any location within five hundred feet of a school, courthouse or church, during the hours of school, court orworship, respectively, or within five hundred feet of any hospital or similar institution, provided, however, thatapplicants seeking permits in relation to a sound device or apparatus located in a fixed open air structure such asa band shell, amphitheater, stadium or similar permanent structure used for performances or events, shall not besubject to the special restrictions of this subparagraph 1 when such applicant certifies that the sound attributableto such sound device or apparatus shall not exceed a level of 10 dB(A) or more above the ambient sound level asmeasured at a distance of 15 feet from the point on the perimeter of the property upon which the structure is locatedthat is closest to the sound device or apparatus;\2. In any location where the commissioner, upon investigation, shall determine that the conditions of vehicular orpedestrian traffic or both are such that the use of such a device or apparatus will constitute a threat to the safety of
3
pedestrians or vehicular operators;3. In any location where the commissioner, upon investigation, shall determine that conditions of overcrowdingor of street repair or other physical conditions are such that the use of a sound device or apparatus will deprive thepublic of the right to the safe, comfortable, convenient and peaceful enjoyment of any public street, park or placefor street, park or other public purposes, or will constitute a threat to the safety of pedestrians or vehicle operators;4. In or on any vehicle or other device while it is in transit;5. Between the hours of ten p.m. and nine a.m.; or
6. Between the hours of eight p.m. or sunset, whichever is later, and nine a.m. on weekdays and between the hoursof eight p.m. or sunset, whichever is later, and ten a.m. on weekends and public holidays, in any location withinfifty feet of any building that is lawfully occupied for residential use. The distance of fifty feet shall be measuredin a straight line from the point on the exterior wall of such building nearest to any point in the location for whichthe permit is sought.
h. Fees. Each applicant for a single-day permit issued under the provisions of this section shall pay a fee offorty-five dollars for the use of each such sound device or apparatus and each applicant for a multiple-day permitissued under the provisions of this section shall pay a fee of forty-five dollars for the use of each such sound deviceor apparatus for the first day and a fee of five dollars for the use of each such sound device or apparatus for eachadditional day up to a maximum of four additional days, provided, however, that permits for the use of such sounddevices or apparatus shall be issued to any bureau, commission, board or department of the United Statesgovernment, the state of New York, and the city of New York, without fee.
i. Exceptions. The provisions of this section shall not apply to the use or operation of any sound device or apparatusby any church or synagogue on or within its own premises, in connection with the religious rites or ceremonies ofsuch church or synagogue.
j. Violations. 1. Any person who shall violate any provision of this section, upon conviction thereof, shall bepunished by a fine of not more than one hundred dollars or imprisonment for thirty days, or both.
2. Any person who shall violate any provision of this section, any rule promulgated pursuant thereto or the termsof a permit issued pursuant to subdivision f of this section, shall be liable for a civil penalty recoverable in a civilaction brought in the name of the police commissioner or the commissioner of environmental protection or in aproceeding before the environmental control board in an amount of two hundred fifty dollars for the first violation,five hundred dollars for the second violation and seven hundred fifty dollars for the third and each subsequentviolation. However, any person who commits a fourth and any subsequent violation within a period of six monthsshall be classified as a persistent violator and shall be liable for a civil penalty of one thousand dollars for each suchviolation.
k. Rules. The police commissioner shall have the power to make such rules as may be necessary to carry out theprovisions of this section.
l. The police department and the department of environmental protection shall have the authority to enforce theprovisions of this section.
Section 1. Declaration of legislative findings and intent. It is hereby declared that the use and operation of soundamplification devices and apparatus in proximity to residential buildings disturb the peace, quiet and comfort ofthe inhabitants of those buildings. Further regulation of sound amplification devices and apparatus used and
4
operated in proximity to residential buildings is necessary to ensure that residents may enjoy the normal activitiesassociated with the morning and evening hours affected by this legislation, such as the quiet enjoyment of one'shome. It is the intention of the Council to protect the health, well-being, privacy and comfort of the inhabitants ofresidential buildings by limiting the unwelcome noise caused by the use and operation of sound amplificationdevices and apparatus when their use and operation occurs within fifty feet of such buildings. Nevertheless, thepolice commissioner would be authorized to issue permits for the use and operation of sound amplification devicesand apparatus within fifty feet of residential buildings for at least eleven hours per day on weekdays and at leastten hours per day on weekends and public holidays.
CASE NOTES FROM FORMER SECTION
¶ 1. Complaint, in action for declaratory judgment of unconstitutionality of Admin. Code § 435-6.0, whichproposes to regulate the use of mechanically amplified sound upon and adjacent to public streets, parks and places,held insufficient with respect to plaintiffs who were merely alleged to manufacture and sell sound equipment, asthe law did not restrict the manufacture and sale of such equipment but merely the use and operation thereof. Suchplaintiffs failed to allege facts indicating that their rights were curtailed or directly affected by the statute, eventhough they did allege that the market for their equipment had been drastically curtailed. However, as to plaintiffswho actually operated devices and apparatus apparently interdicted by the statute, the complaint was sufficient asa matter of pleading.--Gold Sound, Inc. v. City of N.Y., 195 Misc. 291, 89 N.Y.S. 2d 860 [1949].
¶ 2. On motion to dismiss complaint in action for a declaratory judgment as to unconstitutionality of Admin. Code§ 435-6.0, regulating use of mechanically amplified sound upon and adjacent to public streets, parks and places,Court would not be justified in taking judicial notice of concrete situations likely to arise under the statute. Apronouncement of the merits of the legislation would have to await the joinder of issue.--Id.
¶ 3. Motion of defendant to dismiss complaint for violation of this section in that he was operating a soundamplification device without a permit on the ground that this section constitutes an illegal infringement of the rightto free speech because it requires that an application for a permit be made five days prior to its use was denied whenpolice department rules and procedures provide for waiver of the five day provision under certain circumstancesand hence the question of constitutionality requires a trial as to factual matters.--People v. Hinman, 86 Misc. 2d685 [1976].
CASE NOTES
¶ 1. Plaintiff, a street musician, played a musical instrument that required a sound amplification device. Hechallenged the permit fees on constitutional grounds, complaining, among other things, of the fact that musiciansperforming under certain City-sponsored programs were exempted from paying the fee. The court held that theexemption of City-sponsored musicians from paying the fee did not constitute a violation of the First Amendment,so long as the City did not choose the sponsored musicians on the basis of their speech. Turley v. City of NewYork, 167 F.3d 757 (2d Cir. 1999). Turley subsequently brought a suit relating to the city's restrictions on thedecibel level of street musicians' music. The court held that under the City's sound regulations, the City couldlawfully impose an 85 decibel level at 10 feet, and was not required to increase the decibel level to 95 decibels,which had been the amount sought by Turley. The court held that it was lawful for the City to regulate amplifiedmusic to prevent excessive noise, limit congestion and insure public safety. However, the court said, the regulationshad to be justified without reference to the content of speech, had to be narrowly tailored to achieve a legitimate
5
governmental interest and had to leave open some adequate alternative channels for communication of information.Turley complained that corporate sponsored events were being allowed higher decibel levels than were permittedduring his performances. The court held that this was not unlawful--there was a rational basis for the distinction,in that corporate events involved more players and larger audiences and frequently involved the closing off ofstreets. However, the court did uphold one aspect of Turley's challenge. It agreed that in measuring the decibel levelof his performances, the city improperly excluded extraneous noises which were not caused by him (in other words,the City should have been measuring only how much noise was added by his performance). The court agreed thatthis practice gave City officials unfettered discretion, and potentially could lead to content-based discrimination.Thus, the court issued an injunction against the city's practice. Turley v. Giuliani, 86 F.Supp.2d 291 (S.D.N.Y.2000).
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248 N.Y. 182, 161 N.E. 463
View New York Official Reports versionCourt of Appeals of New York.
PEOPLEv.
NIXSON et al. FN*State Report Title: People v. Nixon
May 1, 1928.
Mary Nixson and others were convicted by a city magistrate of acting and using language with intent toprovoke a breach of the peace. From a judgment of the Court of Special Sessions, Appellate Part,confirming such conviction by the city magistrate, defendants appeal.
Judgments reversed, and defendants discharged.
Breach of the peace, for which a definition has been essayed in Penal Law (Consol.Laws, c. 40) § 722, waspunishable at common law.
An act complained of must be at least one that tends to provoke breach of the peace within Penal Law(Consol.Laws, c. 40) § 722, before a magistrate can, within his discretion under Consolidation Act (Laws1882, c. 410) §§ 1458, 1459, find that the act was disorderly conduct which tended to breach of the peace.
Police officers are guardians of the public order and as it is their duty not merely to arrest offenders but toprotect persons from threatened wrong and to prevent disorder, they may give reasonable directions; andevidence that before certain defendants accused of disorderly conduct with intent to provoke a breach of thepeace were arrested they were warned by police officers that they must not persist in marching up and downthe street in large groups, and that they refused to heed the warning so given, requires the affirmance oftheir conviction.
In prosecution for commission of acts tending toward breach of the peace, defined in Penal Law(Consol.Laws, c. 40) § 722, by defendants' picketing an employer's place of business, although themagistrate may draw a distinction between innocent and wrongful conduct, yet a finding of guilt must,under Consolidation Act (Laws 1882, c. 410) §§ 1458, 1459, be based upon logical inference from thecircumstances of the case.
Evidence held insufficient to sustain conviction of threatening behavior with intent to provoke breach ofpeace, defined by Penal Law (Consol.Laws, c. 40) § 722, in picketing place of business, where thedefendants walked four abreast on the sidewalk, creating no special excitement or disturbance, and were notwarned by the police before they were arrested for disorderly conduct.
When the Court of Appeals is convinced that an artificial rule of practice created by it by prior decision iserroneous and hampers the administration of justice, it is court's duty to refuse to perpetuate the previouserror.
The rule that ordinarily a question of law is raised only by exception is not entirely without its limitations,but it must be interpreted in the light of reason.
On appeal from conviction of disorderly conduct tending toward breach of peace, the jurisdiction of theCourt of Appeals was limited to a review of questions of law, and such jurisdiction could not be extendedby consent.
Where trial is before court and jury, even in inferior court, failure to move for dismissal of complaint orcharge and acquiescence in submission of questions of fact to jury is tantamount to a concession that issuesof fact to be determined by the jury were created by the evidence, and in such case the submission of issuesof fact to the jury is itself a ruling made in course of trial that such issues exist, and objection in appropriateform should be offered, and an exception should be taken at time ruling is made if a party is dissatisfiedtherewith.
Even if there is no motion to dismiss, the Court of Appeals may review the sufficiency of the evidence tosustain a judgment of a court of inferior jurisdiction where the case was submitted to the judge to pass uponall questions both of law and fact.
The rule that ordinarily a question of law is raised only by exception applies in criminal as well as in civilcases and in inferior courts as well as in courts of general jurisdiction, but rule is not entirely withoutlimitations.
Where a formal decision must be made by a court, Civil Practice Act, § 445, provides for the taking of anexception to the ruling upon a question of law, and, in the absence of such an exception, there can be noreview by the Court of Appeals.
Dissatisfaction with the conduct of the trial must be shown by timely exception, and without such exceptionthe Court of Appeals may ordinarily not review conduct of a trial.
The exception to the denial of a motion for a dismissal of the charge of disorderly conduct tending to abreach of the peace permits the court of appeals to review the question of law.
On appeal from conviction of defendants for using threatening, abusive, and insulting behavior with intentto provoke a breach of the peace, defined by Penal Law (Consol.Laws, c. 40) § 722, it being alleged thatdefendants were picketing a place of employment and marching up and down the sidewalk obstructing theway, reviewing court could not, in the absence of evidence, infer that defendants' conduct was intended as athreat or could be so construed or was an incentive to violence by others.
Whether the evidence sustains a decision or judgment is a question of law, and may be reviewed by theCourt of Appeals, unless an appellant, by failure to make appropriate motions or to take appropriateexception, has waived his right to urge it.
**464 *182 Appeal from Court of Special Sessions.*183 Aiken A. Pope and Jacob M. Mandelbaum, both of New York City, for appellants.
Joab H. Banton, Dist. Atty., of New York City (Felix C. Benvenga and John C. McDermott, both of NewYork City, of counsel), for respondent.
LEHMAN, J.
Twenty persons, named as defendants in this case, were arrested in the early morning of May 27, 1927, whilewalking on the sidewalk on *184 the southerly side of West Twenty-Ninth street. The police officer, whoarrested them, charged in the sworn complaint that they were in ‘West Twenty-Ninth street using threatening,abusive, and insulting behavior, with intent to provoke a breach of the peace, and whereby a breach of the peacemight be occasioned, that said defendants at the hour of 7:30 a. m. did then and there, while picketing with anumber of others, parade up and down in mass formation, thereby obstructing the sidewalk and causingpedestrians to use the roadway.’ Nineteen of the defendants have been convicted upon this charge, after a trialbefore a magistrate, and have been sentenced to terms of imprisonment in the workhouse.
This appeal is one of six appeals from judgments of conviction of about one hundred and twenty people, ofwhom about fifty are women. All the appeals were argued together. The complaints in all the cases are similar.The alleged offenses all occurred at the same place and within the space of a few days. They were all triedbefore the same magistrate, and it is evident that the magistrate assumed that the defendants, found guilty inall these cases, were walking on this street as part of some tactics adopted to further the interests of a party toa strike or labor dispute in the fur industry. In some cases there is vague evidence which perhaps supports thisassumption.
Though the evidence in the six cases is not identical, and the differences may produce varying consequences,yet the determination of the questions involved in the instant case, which the parties chose as the basis of theoral argument in this court, will dictate the answer to most of the questions presented in the remaining caseson appeal. In this case the police officer who made the arrest testified**465 that he had the defendants underobservation for ten minutes. They were walking on the south side of Twenty-Ninth street between Sixth andSeventh avenues. They were ‘parading’ four abreast. The *185 sidewalk was about twelve feet wide. Thedefendants in walking four abreast occupied about six feet of the sidewalk. ‘The regular amount of traffic wasjust barely getting through,’ Some persons were ‘caused’ to enter the roadway. The officer stated:
‘I fell in line with them and walked up to the southwest corner of Twenty-Ninth street and Sixth avenue. Whenthey got to the corner, they turned around, and they marched back again on the same side, and a few personswere caused to enter the roadway again. I then placed them under arrest.’
Another officer assisted in the arrest. Neither officer warned the defendants before the arrest. The defendantsapparently submitted to arrest without protest.
We have set forth the entire testimony almost verbatim. There is no suggestion in the record that the defendants'march up and down the street was not quiet and orderly. There is no suggestion that the defendants' demeanorwas threatening, abusive, or insulting, or that any person on the street or elsewhere believed that he was beingthreatened, insulted, or abused. Nineteen or twenty persons walked up and down a busy street four abreast.They were guilty, we may well concede, of atrociously bad manners, and they discommoded some other personslawfully using the street, to the extent that a few pedestrians were caused to enter the roadway. There is noevidence that the persons discommoded showed any particular annoyance. Perhaps bad manners are too usual
to evoke unusual irritation or annoyance. As yet bad manners have not been made punishable by imprisonment.The question presented here is whether the defendants' conduct went beyond mere bad manners and tendedtowards a breach of the peace.
[1] It is difficult to define exactly and comprehensively the kind of conduct which ‘tends to a breach of thepeace,’ though a ‘breach of the peace’ was punishable at common law. A definition has been essayed by theLegislature in section 722 of the Penal Law (Consol. Laws, c. 40):
‘In cities of *186 five hundred thousand inhabitants or over any person who with intent to provoke a breachof the peace, or whereby a breach of the peace may be occasioned, * * * (2) acts in such a manner as to annoy,disturb, interfere with, obstruct, or be offensive to others; (3) congregates with others on a public street andrefuses to move on when ordered by the police.’
[2] We do not now decide whether under sections 1458 and 1459 of the Consolidation Act (Laws 1882, c. 410)a magistrate has discretion to find that conduct which does not fall strictly within the offense defined by theLegislature may nevertheless constitute disorderly conduct which tends to a breach of the peace. At least thediscretion confided to a magistrate cannot be without limits. The act complained of must at least be one whichreasonably does tend to a breach of the peace, and it is not without significance that the Legislature has made‘congregating on the street’ a criminal offense only when the offender refuses to move on when ordered by thepolice.
[3] Though the charge recites that the offense charged was committed while the defendants were picketing, noevidence was produced to sustain this allegation. Doubtless both the magistrate and the defendants assumed,even without proof, that a labor dispute existed in the fur trade at that time, and that the defendants werewalking in the street in pursuance of some tactics intended to advance the interest of a party or parties to thatdispute. Even if we also should assume the existence of such facts without proof, the question before us wouldremain unaffected by such facts. It has been said at times that picketing in large numbers near a place ofbusiness where a strike is in progress is in itself a threat of violence, and invites counter violence.Circumstances may in particular cases justify a finding to that effect. Here we are not informed of the natureor extent of the labor dispute, if such there was. If there was a strike on the block where the defendants werewalking, it may, for aught that appears, have *187 been in connection with a business conducted on the topfloor of one of the loft buildings along the street. There is nothing to show that any other person could haveregarded the defendants' conduct as a threat or as calculated to coerce or impede any one. In the absence ofevidence, we may not infer that the conduct of the defendants was intended as a threat, or could be so construed,or was an incentive to violence by others. Even if the defendants were parties to a labor dispute, nocircumstances are shown which, it is even claimed, might possibly be considered as an excuse for or palliationof conduct constituting an invasion of the rights of the public. On the other hand, no circumstances have beenshown which would give the color of disorder and violence to conduct which is otherwise colorless. Upon thisrecord no question is presented of the rights of parties to a labor dispute to the use of the streets for their ownpurposes—or of any abuse by them of such **466 rights. The sole question is whether a number of pedestrianswalking, quietly, four abreast, on the sidewalk, creating no excitement, or disturbance, may without warningby the police be arrested for disorderly conduct and sentenced to a term of imprisonment.
[4][5] To us it seems that there should be no doubt of the answer to that question. Men and women constantlycongregate or walk upon the streets in groups, quite oblivious of the fact that in some degree they are therebycausing inconvenience to others using the street. A public meeting may have aroused such interest that groupsof men and women continue the discussion while walking up and down the street. Groups linger in quiet socialconverse after the religious edifice where services have been held is emptied. School children and collegeyouths, laborers, athletic ‘fans,’ and church members, perhaps even judges, do at times congregate or walk uponthe streets in numbers sufficient to cause other pedestrians to stand aside or step into the roadway. Surely *188such conduct is not always ‘disorderly,’ and does not always tend to a breach of the peace. The magistrate maydraw distinction between innocent and wrongful conduct, but finding of guilt must be based upon logicalinference from the circumstances of the case. Of course, no one urges that distinction may be based merely upon
difference of social or economic position. Here the fact, if it be a fact, that the defendants are participants orsympathizers in a labor dispute, is immaterial, since there is no evidence from which any inference may bedrawn that their quiet presence in numbers at this particular place was in some way calculated to make the labordispute disorderly. In the absence of evidence that the defendants caused substantial annoyance to others, orpersisted in their conduct after protest from others or warning from a police officer, we find the evidenceinsufficient to sustain the conviction of the defendants in this case.
In the case of People v. Friedman, 248 N. Y. ——, 162 N. E. ——, the evidence produced to sustain the chargeis in all material respects similar to the evidence produced in the instant cases. We find that it does not sustainthe judgment of conviction. In the other four cases the circumstances are different. There the evidence, thoughmeager and unsatisfactory, yet seems to us sufficient to support a finding that the defendants acted recklesslyof the rights and convenience of others, and that their conduct tended to a breach of the peace.
In all these four cases there is evidence that before the defendants were arrested they were warned by policeofficers that they must not persist in marching up and down the street in large groups. Police officers areguardians of the public order. Their duty is not merely to arrest offenders, but to protect persons from threatenedwrong and to prevent disorder. In the performance of their duties they may give reasonable directions. Presentat the point where the defendants were congregating *189 they might early sense the possibility of disorder.Even a protest from pedestrians who were annoyed by the defendants' conduct might be a significant elementin determining whether persistence in such conduct was wrongful. Enough has been shown in these cases tojustify the officers in warning the defendants. Refusal to heed the warning so given, persistence in parading thestreet in groups thereafter, is, perhaps, so significant of a contumacious disregard of the rights of others that itsupports the finding of guilt of the defendants. In these cases the judgments must be affirmed.
[6] We have considered the question of whether there is any evidence to sustain the finding of guilt in theinstant case. The district attorney has not urged that upon this record we have no jurisdiction to review thatquestion. Our jurisdiction is, of course, limited in these cases to a review of questions of law, and thatjurisdiction may not be extended by consent. We are therefore compelled to determine whether we may reviewthe questions argued, though no objection to such review has been interposed by the people.
[7] Ordinarily a question of law is raised only by exception. That rule applies in criminal as well as civil cases,and in inferior courts as well as in courts of general jurisdiction. City of Buffalo v. New York, L. E. & W. R.Co., 152 N. Y. 276, 46 N. E. 496. The rule is not entirely without its limitations. It ‘must be interpreted in thelight of reason and subject to certain inherent limitations. Ordinarily the question which is presented arises onthe trial where full opportunity is presented to take an exception and where, generally, justice and fairnessrequire that one should be taken at the time if the party is dissatisfied with the conduct of the trial, and it isconcerning such a situation as this that the rule is constantly reiterated and enforced that an exception must betaken for the purposes of appeal to this court. * * * But a case may arise where there is no opportunity to takean exception, and such is the *190 present one.’ Pangburn v. Buick Motor Co., 211 N. Y. 228, at page 235, 105N. E. 423, 425.
[8][9][10] Here the defendants pleaded not guilty. After hearing the evidence adduced against them, themagistrate decided that the charge against them was sustained. Dissatisfaction**467 with the conduct of thetrial must be shown by timely exception. Without such exception we may ordinarily not review the conduct ofa trial. Magistrates and other judges of inferior courts pass upon questions of fact and of law. Whether theevidence sustains a decision or judgment is a question of law, and may be reviewed by this court unless anappellant by failure to make appropriate motions or to take appropriate exception has waived his right to urgeit. Where a formal decision must be made by a court, the Civil Practice Act, § 445, provides for the taking ofan exception to a ruling upon a question of law. In the absence of such an exception, there can be no reviewby this court. No provision is made by statute or customary practice for an exception to the decision orjudgment of a magistrate or other judge of an inferior court who passes upon questions of fact and of law,without the entry of a formal decision. In the case of People v. Friedman, 248 N. Y. ——, 162 N. E. ——,decided herewith, the defendants moved for a dismissal of the charge, and the exception to the denial of the
motion unquestionably permits us to review the question of law. In the instant case of People v. Nixson, no suchmotion was made, and the question arises whether by failure to make such motion the defendants conceded ‘thatissues of fact, to be determined by the trial court, were created by the evidence and precluded themselves fromasserting and asking the appellate courts to determine that the judgment of the trial court was wholly withoutsupport in the evidence.’ Seeman v. Levine, 205 N. Y. 514, 99 N. E. 158.
[11] Doubtless where the trial is before a court and jury, even in an inferior court, failure to move for thedismissal *191 of the complaint or charge and acquiescence in the submission of questions of fact to the juryis tantamount to a concession that issues of fact to be determined by the jury were created by the evidence. Insuch case the submission of issues of fact to the jury is itself a ruling made in the course of the trial that suchissues exist, and objection in appropriate form should be offered and an exception may and should be taken atthe time the ruling is made, if a party is dissatisfied with the ruling. In the case of Seeman v. Levine, supra, thiscourt held that, even where there is no jury, the failure to move to dismiss before decision by the judge has thesame effect. That case was a civil case, but it has been followed by this court in criminal cases. People v.Bresler, 218 N. Y. 567, 113 N. E. 536; People v. Robinson, 237 N. Y. 567, 143 N. E. 745.
These cases cannot be distinguished from the case at bar. We must refuse to review the question of whetherthere is evidence to sustain the judgment, or overrule the earlier decisions of this court. Further consideration,with the advantage of new experience, has convinced us that our earlier decisions were wrong. Where questionsof fact and law are both decided by the judge, a submission to him of all questions after the evidence is takenis not, in truth, a concession that issues of fact are raised by the evidence. Litigants present to the judge theevidence to sustain their respective contentions. He must decide the effect of the evidence. We know now that,especially in courts where judicial proceedings are often informal, a requirement that a party must at his perilseparate questions of law from questions of fact and move for a decision on questions of law before finalsubmission of the case, does not facilitate the administration of the courts and does at times result in injustice.
[12][13] The instant case shows the artificiality of the rule which we have heretofore followed, and that it isout of harmony with the actual proceedings in the courts. The *192 defendants have pleaded not guilty. Theyhave not controverted the evidence produced against them. Their attitude has consistently been that the evidencedid not justify conviction. In order to avail themselves of the protection of the law which they invoke, theyshould not be compelled to go through the form of a motion to dismiss. Even the people do not contend thatthe defendants conceded the sufficiency of the evidence against them or that the judge was not required to passupon that question when he rendered judgment. It is right that this court should hesitate to overrule a previousdecision, but, when convinced that an artificial rule of practice, created by it, is erroneous and hampers theadministration of justice, it is its duty to refuse to perpetuate previous error. We therefore hold that, even wherethere is no motion to dismiss, this court may review the sufficiency of the evidence to sustain a judgment of acourt of inferior jurisdiction where the case has been submitted to the judge to pass upon all questions, both oflaw and fact.
The judgment of the Court of Special Sessions and that of the City Magistrate's Court should be reversed anddefendants discharged.
CARDOZO, C. J., and POUND, CRANE, ANDREWS, KELLOGG, and O'BRIEN, JJ., concur.
Judgments reversed, etc.
N.Y. 1928PEOPLE v. NIXSON248 N.Y. 182, 161 N.E. 463
248 N.Y. 182, 161 N.E. 463When the Court of Appeals is convinced that an artificial rule of practice created by it by prior decision isto evoke unusual irritation or annoyance. As yet bad manners have not been made punishable by imprisonment.difference of social or economic position. Here the fact, if it be a fact, that the defendants are participants ormotion unquestionably permits us to review the question of law. In the instant case of People v. Nixson, no such
United States District Court,S.D. New York.
Hacer DINLER, et al., Plaintiffs,v.
The CITY OF NEW YORK, et al., Defendants.
No. 04 Civ. 7921(RJS)(JCF).Sept. 30, 2012.
Opinion and Order
RICHARD J. SULLIVAN, District Judge.
*1 Beginning in 2004, Plaintiffs filed these actions against the City of New York (the “City”) and several individualspursuant to 42 U.S.C. § 1983 and various provisions of state law, alleging violations of their state and federalconstitutional rights in connection with mass arrests at demonstrations relating to the 2004 Republican NationalConvention (the “RNC” or “Convention”). Before the Court are the parties' cross-motions for summary judgment onPlaintiffs' false arrest claims relating to their arrests at Fulton Street and East 16th Street, and on Defendants' policies withrespect to fingerprinting and arrests on minor violations during the RNC. Additionally, Plaintiffs have moved to striketestimony by New York Police Department (“NYPD”) Deputy Commissioner David Cohen, which they allege is improperexpert evidence. For the reasons set forth below: (1) Plaintiffs' motion for summary judgment with respect to the FultonStreet arrests is granted, and Defendants' motion is denied; (2) the parties' cross-motions for summary judgment withrespect to the East 16th Street arrests are denied; (3) Plaintiffs' motion for summary judgment with respect to their statelaw fingerprinting claims is granted, and Defendants' motion is denied; (4) Defendants' motion for summary judgmentregarding the constitutionality of the City's policies concerning fingerprinting and arrests during the RNC is granted; and(5) Plaintiffs' motion to strike certain testimony of Deputy Commissioner Cohen is denied.
I. BackgroundFN1
FN1. The following facts are drawn from the parties' Rule 56.1 Statements, and the exhibits and declarations attachedthereto. The facts are undisputed unless otherwise noted. Where one party's 56.1 Statement is cited, the other party doesnot dispute the fact asserted, has offered no admissible evidence to refute that fact, or merely objects to inferences drawnfrom that fact. The Court has also considered the parties' briefs in connection with their motions. The various submissionsand briefs will be referred to as follows: [party name] [subject of motion] [type of document]. For example, the Rule 56.1Statement submitted by Defendants in connection with their motion for summary judgment on Plaintiffs' false arrest claimsarising out of the August 31, 2004 arrests at Fulton Street is called “Defs.' Fulton 56.1”; the Schiller Plaintiffs' briefopposing Defendants' motion for summary judgment dismissing Plaintiffs' claims relating to the No–Summons andFingerprinting Policies is called “Schiller Policies Opp'n Br.”
During the 2004 Republican National Convention, which was held at Madison Square Garden in Manhattan, thousandsof individuals representing a wide range of political and social views came to New York City to participate indemonstrations relating to the RNC. Those demonstrations led to mass arrests and detention of protestors. Following thosemass arrests, hundreds of plaintiffs filed the instant lawsuits against the City and various individual NYPD officers andother individuals associated with the City (collectively, “Defendants”).FN2 Plaintiffs in the various cases includeprotesters, journalists, and bystanders.FN3
FN2. Although the Plaintiffs in the various cases did not sue identical groups of Defendants-indeed, not all Plaintiffs
1
even named the City as a Defendant-the Court nevertheless refers to the City and various individual Defendantscollectively as “Defendants” unless otherwise noted.
FN3. This Opinion and Order refers to several sets of Plaintiffs. The Dinler and Adams Plaintiffs were arrested inconnection with the East 16th Street demonstration. The Schiller and Abdell Plaintiffs were arrested in connection withthe Fulton Street march. The MacNamara Plaintiffs were arrested at various sites throughout the City and, for purposesof this Opinion and Order, join the other Plaintiffs in challenging the arrests at the Fulton and East 16th Streetdemonstrations and the constitutionality of several law enforcement policies adopted by the City to address securityconcerns during the RNC.
The first Plaintiffs filed these actions in late 2004, shortly after the arrests in question, followed by hundreds morePlaintiffs filing individually, jointly, and, in some cases, seeking to certify a class. The complaints in these actions raiseclaims of, inter alia, false arrest, unreasonable and unhealthy terms of confinement, and unlawful fingerprinting anddetention policies. The cases were referred to Judge Francis for discovery and assigned to my docket on October 2, 2007.By Opinion and Order dated May 19, 2011, the Court granted in part and denied in part Plaintiffs' motion for classcertification in MacNamara v. City of New York, 275 F.R.D. 125 (S.D.N.Y.2011). Discovery concluded on September16, 2011.
The parties filed cross-motions for summary judgment on October 3, 2011; the motions were fully submitted as ofNovember 23, 2011. On December 1, 2011, Plaintiffs in Schiller and Dinler submitted a letter seeking leave to file amotion to strike Cohen's testimony.FN4 Defendants submitted a letter opposing this request on December 6, 2011. ByOrder dated December 14, 2011, the Court deemed Plaintiffs' motion to strike made and determined that it would addressthe motion when it ruled on the parties' cross-motions for summary judgment, based on the parties' letters and argumentsalready contained in the summary judgment briefing. On May 31, 2012, the Court heard oral argument regarding theparties' motions.
FN4. Several Plaintiffs submitted letters to the Court joining in the Schiller and Dinler Plaintiffs' motion to strike.
*2 Although these cases cover a wide range of complaints about conduct by the City, and particularly the NYPD, theparties agreed to limit their motions at this time to four issues: (1) whether the police had probable cause to arrestprotesters and bystanders at a demonstration on Fulton Street on August 31, 2004; (2) whether the police had probablecause to arrest protesters and bystanders at a demonstration on East 16th Street on August 31, 2004; (3) whether the City'ssuspension of its summons policy for minor offenses, when those offenses related to the RNC, was constitutionallypermissible; and (4) whether the City's blanket fingerprinting policy with respect to RNC-related arrests was lawful andconstitutionally permissible.
In all, the parties have filed more than fifty motions, together with hundreds of pages of briefing and thousands more pagesof declarations, exhibits, and Local Rule 56.1 statements, as well as several hours of video of the events surrounding theFulton Street and East 16th Street arrests.
II. Legal StandardPursuant to Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment should be rendered “if the movantshows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). The moving party bears the burden ofproving that there is no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Once
2
the moving party has met its burden, the nonmoving party “must come forward with specific facts showing that there isa genuine issue for trial.” Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir.2002) (citations and internal quotation marksomitted).
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 isinstead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw allreasonable inferences in favor of that party, and to eschew credibility assessments.” Weyant v. Okst, 101 F.3d 845, 852(2d Cir.1996). However, “[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by therecord, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of rulingon a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007). Specifically, where, as here, the eventsin question are captured on videos that are not alleged to have been doctored or altered, the court should “view[ ] the factsin the light depicted by the videotape.” Id. at 381.
As a result, summary judgment will not issue where “the evidence is such that a reasonable jury could return a verdict forthe nonmoving party.” Anderson, 477 U.S. at 248. “Inferences and burdens of proof on cross-motions for summaryjudgment are the same as those for a unilateral summary judgment motion.” Ferrigno v. U.S. Dep't of Homeland Sec., No.09 Civ. 5878(RJS), 2011 WL 1345168, at *3 (S.D.N.Y. Mar. 29, 2011).
III. False Arrest Claims*3 Plaintiffs' false arrest claims arise from mass arrests at two sites made without any warrants. Although the parties donot dispute that warrantless arrests must be supported by probable cause in order to satisfy the Fourth Amendment'srequirement that seizures be reasonable, U.S. Const. amend. IV, they disagree over how probable cause determinationsmust be made when the police suspect large groups of people of unlawful activity. It is to that threshold question that theCourt first turns.
A. Probable CauseWhere an arrest is made without a warrant, “the defendant [in a false arrest case] ... bears the burden of proving probablecause as an affirmative defense.” Dickerson v. Napolitano, 604 F.3d 732, 751 (2d Cir.2010) (citing Broughton v. State,37 N.Y.2d 451, 458 (1975)). Probable cause is a complete defense to a claim of false arrest. Id. (citing Jaegly v. Couch,439 F.3d 149, 152 (2d Cir.2006)). Probable cause with respect to any charge is sufficient; the police need not have hadprobable cause with respect to each individual charge. Marcavage v. City of New York, 689 F.3d 98, 109–10 (2dCir.2012).
“ ‘An officer has probable cause to arrest when he or she has knowledge or reasonably trustworthy information of factsand circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrestedhas committed or is committing a crime.’ “ Dickerson, 604 F.3d at 751 (quoting Jaegly, 439 F.3d at 152). Importantly,probable cause must be particular to the individual being arrested. The Supreme Court has held that “a person's merepropinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause tosearch that person” because “a search or seizure of a person must be supported by probable cause particularized withrespect to that person.” Ybarra v. Illinois, 444 U.S. 85, 91 (1979). In Ybarra, the police had a warrant to search a tavernbased on information that a bartender possessed drugs, but searched everyone present, including the petitioner. Id. at 88.The Court concluded that the authorities lacked probable cause to believe that anyone other than the bartender wasviolating the law, and that such probable cause remained absent with respect to the petitioner when the police executedthe warrant. Id. at 90–91. The requirement of individualized probable cause, the Court ruled, “cannot be undercut oravoided by simply pointing to the fact that coincidentally there exists probable cause to search or seize another or to searchthe premises where the person may happen to be.” Id. at 91. The Supreme Court recently reaffirmed that, notwithstandingthe difficulty of defining probable cause precisely, “[t]he substance of all the definitions of probable cause is a reasonable
3
ground for belief of guilt, and that belief of guilt must be particularized with respect to the person to be searched orseized.” Maryland v. Pringle, 540 U.S. 366, 371 (2003) (citing Ybarra, 444 U.S. at 91) (internal quotation marks andfurther citations omitted).
*4 Defendants, at least for purposes of these motions, do not contend that the arresting officers had individualizedknowledge of the actions of any of the Plaintiffs.FN5 Instead, Defendants rest entirely on a concept that the Court willrefer to as “group probable cause,” which they assert permits the police to arrest an entire group of individuals “where itreasonably appears to the police that a large group is engaging in unlawful conduct.” (Defs.' Fulton Mem. 9.)
FN5. On June 20, 2006, Judge Francis issued an order deeming Defendants to have conceded that they “have nopersonal knowledge of [the Schiller and Dirtier ] plaintiffs' actions.” (No. 04 Civ. 7922(RJS)(JCF), Doc. No. 67, at 3.)Similarly, by Order dated November 28, 2006, Judge Francis ruled that “the defendants are deemed to have admitted that,with respect to each plaintiff in the MacNamara, Abdell, and Adams case[s] (with the exception of plaintiff Chris Thomas[who was observed by an NYPD officer at the New York Public Library] ), they cannot identify any member of the NYPDwho has personal knowledge of individual conduct of that plaintiff which served as the basis for that plaintiff's arrest. Thisdoes not preclude the defendants from presenting evidence that a plaintiff was within a group of individuals allegedlyengaged in unlawful activity or from arguing that such evidence is sufficient to demonstrate probable cause.” (No. 04 Civ.7922(PJS)(JCF), Doc. No. 112.)
The concept of group probable cause, however, is by no means as firmly established as Defendants suggest. The SecondCircuit, in fact, rejected a comparable argument in Jones v. Parmley, 465 F.3d 46 (2d Cir.2006). In that case, brought byprotestors arrested on private property, the Second Circuit affirmed the district court's finding that the police were notentitled to qualified immunity because their conduct was unreasonable insofar as it was not based on individualizedprobable cause. Parmley, 465 F.3d at 60. The arrests were predicated on the conduct of a subset of protestors who,allegedly in violation of a state statute prohibiting obstruction of traffic, stepped into the nearby interstate to distributeliterature about their cause before rejoining the larger group. Id. at 52–53. Although the Second Circuit assumed arguendothat some protestors had indeed violated the state statute, it found the police officers' conduct to be unreasonable because,at the time of the arrests, none of the officers could identify the specific protestors responsible for the violations. The courtstated that, “[w]ithout the ability to identify those individuals who had entered the ... roadway, defendants cannot rely on[the state statute prohibiting obstruction of traffic] to justify their actions.” Id. at 60. Thus, even though some arrestees mayindeed have violated the law, the court found that the “indiscriminate mass arrests” were “without probable cause.” Id.
In arguing for the group probable cause theory, Defendants rely primarily on two cases from outside the Second Circuit:Carr v. District of Columbia, 587 F.3d 401 (D.C.Cir.2009) and Bernini v. City of St. Paul, 665 F.3d 997 (8th Cir.2012).In Carr, the Court of Appeals for the District of Columbia reversed the district court's grant of summary judgment in favorof protesters who were arrested on charges of rioting. 587 F.3d at 402. In light of evidence that the group moving throughthe city seemed to be collectively carrying torches and celebrating destruction of property by protesters, the court ruledthat there were disputed issues of fact as to whether the police had probable cause to arrest the roughly sixty-five toseventy-five protesters who either voluntarily entered or were “herded” by police into an alley. Id. at 404–06. Specifically,the court concluded that “[a] requirement that the officers verify that each and every member of a crowd engaged in aspecific riotous act would be practically impossible in any situation involving a large riot, particularly when it is on themove-at night.” Id. at 408. Instead, the court held that, in the context of rioting, the police “must only be able to form areasonable belief that the entire crowd is acting as a unit and therefore all members of the crowd violated the law.” Id.(emphasis added). The court conceded the possibility that an innocent person could be mistaken for a rioter and arrested,but it noted that “[p]robable cause only requires a reasonable belief of guilt, not a certitude.” Id. Importantly, the courtdistinguished a prior case, Barham v. Ramsey, in which the D.C. Circuit ruled that the police lacked probable cause toarrest hundreds of people in a park merely because a subset of those present were protesters who had been participating
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in traffic offenses and vandalism. 587 F.3d 401 (D.C.Cir.2006). The Carr court noted that “in Barham the record showedthat many people who could not be tied to illegal activity streamed in and out of the park before the mass arrest,” whereasin Carr, there was “no affirmative evidence ... of individuals not associated with the protest being present in the alley.”Carr, 587 F.3d at 408.
*5 Defendants also rely on Bernini v. City of St. Paul, which arose out of the 2008 RNC, where safety concerns relatingto protests prompted the police to close access to the downtown area of St. Paul, Minnesota. See 665 F.3d at 1001. Despitethe closures, a group of protesters nonetheless proceeded toward the restricted area, down the very road that was intendedto be the route for the First Lady's motorcade. Id. The police formed a barricade at an intersection and told the protesters(who started on the street and moved to the sidewalk) to retreat, before using rubber pellets to compel their dispersal. Id.The police reported that protesters threw rocks and bags containing feces, though the plaintiffs disputed this assertion. Id.Finally, the police funneled the protesters into a nearby park, instructed the group to sit, and “sort[ed]” people, ultimatelyletting about 200 go and arresting another 160. Id. at 1002. The police contended that those involved appeared to be sittingtogether. Id . Citing the D.C. Circuit's rulings in Carr and Barham, the Eighth Circuit noted that “[w]hat is reasonable inthe context of a potential large-scale urban riot may be different from what is reasonable in the relative calm of a tavernwith a dozen patrons.” Id. at 1003. The court thus concluded that the officers could have determined that the group thatappeared ready to clash with the police “had committed a crime and that the group was acting as a unit.” Id. at 1003–04.As a result, the court ruled that the police were entitled to qualified immunity with respect to those individuals who werearrested at the park, even though the decision by the police to funnel protesters to the park may have “caused the groupto expand and enveloped people who were not present at the intersection.” Id. at 1004–05. Nevertheless, key to the court'sruling was the fact that the arrests were not indiscriminate; rather, the police “attempted to discern who had been part ofthe unit at the intersection and released approximately 200 people, including seven of the plaintiffs, at the park.” Id. at1005. Although the plaintiffs contended that the group at the intersection was at most thirty to forty people, the court notedthat the video showed at least fifty people clustered together, and another fifty nearby. Thus, the Court reasoned thatarresting 160 at the park “was within the range of objectively reasonable police conduct” given the difficulty from theofficers' vantage point of determining exactly how many people were present. Id.
Carr and Bernini provide insight into how the state can preserve public order and enforce the law in mass protest or riotsituations, but they do not, and could not, alter the constitutional requirement of individualized probable cause as aprerequisite for lawful arrest. Rather, they stand for the unremarkable proposition that, where a group of individuals isacting in concert such that a reasonable police officer could conclude that every member of the group violated the law,that officer would be justified in arresting every member of the group.
*6 As such, Carr and Bernini do not endorse a theory of collective or group liability, nor do they reflect a departure fromthe rule of individualized probable cause. They merely offer a method of reaching individualized probable cause in a large,and potentially chaotic, group setting. Individualized probable cause remains the lodestar in these cases. An individual'sparticipation in a lawbreaking group may, in appropriate circumstances, be strong circumstantial evidence of thatindividual's own illegal conduct, but, no matter the circumstances, an arresting officer must believe that every individualarrested personally violated the law. Nothing short of such a finding can justify arrest. The Fourth Amendment does notrecognize guilt by association. See Ybarra, 444 U.S. at 91 (“[A] person's mere propinquity to others independentlysuspected of criminal activity does not ... give rise to probable cause....”); United States v. Coreas, 419 F.3d 151, 157 (2dCir.2005) (“Where an organization is not so ‘wholly illegitimate’ that membership itself necessarily implies criminalconduct, membership alone cannot provide probable cause.”).
Dispersal orders play an important, though not essential, role in making such individualized determinations of probablecause. Although the Court declines to find that a dispersal order is an absolute prerequisite under the Fourth Amendmentto finding that all arrestees in a mass arrest were violating the law,FN6 it nevertheless recognizes that police efforts to sortlawbreakers from bystanders, and to advise the latter that they should leave, are highly probative of whether it would be
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reasonable to conclude that every person arrested violated the law. Carr and Bernini are consistent with this conclusion;in both cases, police officers moved protestors off of the main street before making arrests. See Bernini, 665 F.3d at1001–02; Carr, 587 F.3d at 404. Of course, efforts to disperse or sort the crowd both tend to ensure that innocentbystanders will not be included in the arrest and run the risk that some offenders will elude arrest. Nonetheless, that costof the rule of individualized probable cause is clearly contemplated by the Fourth Amendment, as exemplified in caseslike Ybarra.
FN6. The Court notes, without deciding, that a dispersal order may be required by the First Amendment in certaincircumstances. Because of the limited nature of the motions and issues before the Court, such an issue has not beensquarely presented at this time.
With that clarification of the legal requirements, the Court now turns to the two arrest locations that are the subjects ofthe instant motions.
B. Fulton Street Arrests1. FactsOn August 31, 2004, members of the War Resisters League planned a march at the World Trade Center to protest the warsin Iraq and Afghanistan. (Defs.' Fulton 56.1 ¶ 9.) The march was to proceed uptown, ending in a “die-in” either at MadisonSquare Garden, where the main RNC events were taking place, or wherever the march was stopped. ( Id. ¶¶ 9–14.) Many,though not all, of the protesters intended to participate in the die-in. (Schiller Opp'n 56 .1 ¶ 16.) The protesters did notobtain a permit for any portion of their planned demonstration. ( Id. ¶ 17.) There is no allegation that there were particularthreats of violence during this march, although the City was concerned about the possibility of violence and disorderduring RNC demonstrations. (Defs.' Fulton 56.1 ¶¶ 6–8.)
*7 At the outset of the march, while protesters were waiting on Church Street, NYPD Inspector Thomas Galati spoke withEd Hedemann, one of the organizers of the planned demonstration. ( Id. ¶¶ 31–32.) Galati asked Hedemann to change theroute of the march, and Hedemann declined. ( Id. ¶¶ 35–38.) Galati then advised Hedemann that protesters could walkonly one or two abreast so as to not block the sidewalk; if they blocked the sidewalk or violated traffic laws, they wouldbe subject to arrest. (Decl. of Fred M. Weiler, dated Oct. 3, 2011, No. 04 Civ. 7922(RJS)(JCF), Doc. No. 567 (“WeilerDeck”), Ex. A (“Defs.' Fulton Video”), ch. 1 at 0:30.) Galati appeared to be particularly concerned about a banner thatthe protesters wanted to carry and concluded that it should be carried sideways, parallel to the sidewalk facing FultonStreet, rather than facing forward, so that those carrying it would not be walking several abreast and blocking the sidewalk.( Id. at 0:25–0:35.) Galati announced that instruction via bullhorn and concluded by telling the protesters to have a “safemarch.” ( Id . at 2:23–3:00.) The video does not show exactly how large the crowd was, so it is difficult to tell whetherall marchers could have been expected to hear the announcement. ( Id.) However, during Galati's announcement, protesterscan be heard saying, “We can't hear you!” ( Id. at 2:58; see Deck of Michael L. Spiegel, dated Oct. 3, 2011, No. 05 Civ.8453(RJS)(JCF), Doc. No. 260 (“Spiegel Deck”), Ex. B (“Abdell Video”), Cook at 12:25–12:40.FN7) Police also walkedthrough the crowd making similar announcements. (Defs.' Fulton 56.1 ¶¶ 77–78.) Although it is undisputed that Galatibelieved that everyone congregated at the World Trade Center could hear the police warnings before the march, severalindividual Plaintiffs contend that they did not hear all of the warnings. ( E.g., Schiller Fulton Opp'n 56.1 ¶ 81; SchillerFulton Add'l Facts in Opp'n to Defs.' 56.1 ¶ 5.)
FN7. This exhibit-Exhibit B of Michael L. Spiegel's declaration dated October 3, 2011 in Case No. 05 Civ.8453(RJS)(JCF)-consists of a DVD compiling various individual and organizations' videos of the events at issue. Theexhibit will hereinafter be cited as “Abdell Video.” The pincites will follow the format: “(Abdell Video, [chapter name]at [time] ).” For example, the fifteen-second period between minutes 12:30 and 12:45 of the chapter labeled “Cook” willbe cited as “(Abdell Video, Cook at 12:30–12:45).”
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The march began several moments after Galati's announcement, with marchers crossing Church Street onto the north sideof Fulton Street and walking toward Broadway. (Defs.' Fulton 56.1 ¶ 94.) Police stood in the intersection of Church andFulton, seemingly guiding the protesters and making announcements via bullhorn that there was no permit for the marchand that marchers must comply with city and state laws or be subject to arrest. (Abdell Video, Cook at 13:00.) When someprotesters appeared to cross against the light, voices seemingly belonging to protestors can be heard on the video advisingmarchers to get out of the street. ( Id. at 13:40; id., Hernandez at 27:30–27:40, 36:06–35:16.) Shortly thereafter, trafficcan be seen moving freely up Church Street, as the first set of marchers continued east on Fulton, and the remainderpaused at the intersection waiting for the light to change. ( Id., Cook at 13:57.)
The video indicates that the marchers, particularly those toward the front of the group, attempted to comply with Galati'sinstructions by walking two by two, although the columns were not perfectly aligned. ( E.g., id. at 13:10; id., Hernandezat 23:20–23:30.) Individuals not participating in the march moved freely around the sidewalk, including journalists withcameras-indeed, the journalists and their equipment appear to be taking up more space than the marchers themselves. (Id., Hernandez at 23:30, 36:25; Defs.' Fulton Video, ch. 2, at 1:30–1:40.) In any event, it does not appear that particularindividuals who crossed Church Street against the light or who were walking more than two abreast were warned orarrested individually. ( See, e.g., Defs.' Fulton Video, ch. 5.)
*8 Shortly after the march began, Deputy Chief Terrence Monahan appeared to conclude that the protesters who werecarrying a banner were blocking the sidewalk. He stopped the front of the march and, unaided by a bullhorn, announcedthat if the protestors continued to block the street, they would be placed under arrest. (Defs.' Fulton Video, ch. 7 at0:05–0:30.) Monahan's announcement is framed as a warning, telling protesters to comply or be subject to arrest. ( Id. at0:24–0:36.) Defendants contend that marchers were given an opportunity to disperse. (Defs.' Fulton 56.1 ¶ 128.) However,the video shows that the protesters were not given any additional opportunity to comply and continue the march, wereblocked by a line of officers on bicycles, and were ultimately arrested. (Defs.' Fulton Video, ch. 7 at 0:25–0:45; id, ch.2 at 1:40–2:40.) For example, shortly after Monahan's announcement, a woman approached the line and told them thatshe wanted to leave; however, the video shows that she was given no response and was not allowed to leave the group,which was pinned against the wall of St. Paul's Cemetery on the north side of Fulton Street. ( Id., ch. 2 at 2:25.) Someindividuals, who appear to be wearing press credentials, were permitted to leave ( id. at 4:28), but seconds later an officer,possibly Monahan, can be heard saying that “everyone here will be placed under arrest right now.” ( Id. at 4:33).
The video shows that there was little communication among the officers on Fulton Street, and it is not clear when thedecision to make arrests was made. Monahan, who instructed the police to form a line, appears to have concluded thaturgent action was necessary and that the marchers should be placed under arrest ( see Schiller Fulton 56.1 ¶ 129). At thesame time, Galati directed passersby on Fulton Street to get back into the march formation or be subject to arrest,apparently thinking that the march would be permitted to continue once the marchers made a narrower formation. (AbdellVideo, Hernandez at 24:33). Consistent with this confusion, after Monahan's announcement, most of the marchers waitedagainst the fence on Fulton Street in a manner that suggests that they believed they would resume marching. (Defs.' FultonVideo, ch. 2 at 3:30–4:30.) Meanwhile, officers at the back of the march closer to Church Street appeared not to be givingmarchers any instructions at all. (Abdell Video, Hernandez at 32:05). As a large number of police flowed onto FultonStreet and toward Church Street, many stopped, apparently attempting to find out what was happening. ( Id. at 37:00.)
Within minutes of Galati's initial announcement and the commencement of the march, protesters on the north side ofFulton Street were arrested, and were subsequently charged with (1) obstructing the sidewalk, in violation of N.Y. PenalLaw § 240.20(5); (2) parading without a permit, in violation of N.Y.C. Admin. Code § 10–110; and (3) disobeying alawful police order, in violation of N.Y. Penal Law § 240.20(6). Additionally, Defendants now argue that there wasprobable cause to arrest the marchers on Fulton Street for obstruction of governmental administration, in violation of PenalLaw § 195.05. Defendants further contend that they released credentialed journalists (Defs.' Fulton 56.1 ¶ 151); however,
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it appears that not all individuals present for journalistic purposes were released. For example, Plaintiff Michael Schiller,who was present to film a documentary about the RNC protests, was among those arrested. (Schiller Fulton 56.1 ¶¶ 12,14.)
*9 The Court now turns to determining whether the NYPD had probable cause to arrest the protestors with respect to eachcharge.
2. Discussiona. Obstructing TrafficPursuant to § 240.20(5) of the New York Penal Law, a person is guilty of disorderly conduct when “[h]e obstructsvehicular or pedestrian traffic.” As the Second Circuit has noted, “New York courts have interpreted this statute to permitpunishment only where the conduct at issue does more than merely inconvenience pedestrian or vehicular traffic.”Parmley, 465 F.3d at 59.
In the first place, it is questionable whether any of the Fulton Street protesters actually obstructed traffic within themeaning of § 240.20(5), as any blocking was temporary and pedestrians and cars were able to move with only a minimalamount of difficulty. (Abdell Video, Cook at 13:57.) Furthermore, as noted above, any blocking of the sidewalk thatoccurred was largely attributable to photographers and journalists covering the march, and not to the marchers themselves.
Even if some number of the marchers did obstruct vehicular or pedestrian traffic, it cannot be said that they all did so, andcertainly not that they acted with a collective intent to violate the law. To the contrary, the video shows marchers makingconcerted efforts to march two by two so as to leave room for pedestrians, stay out of the street, and comply with policydirections. Thus, even accepting that the police reasonably believed that they arrested only marchers and not innocentbystanders, the police could not have reasonably believed that all of the marchers on Fulton Street were acting as a unitto obstruct traffic. Instead, Defendants' argument seems to be one of group liability: essentially, because the marcherscollectively intended to march, their overall efforts to comply with police instructions were rendered irrelevant by theunlawful acts of a few members of the group. Such a conclusion, though, is wholly inconsistent with the rule ofindividualized probable cause. ( See supra Section III.A .) Put simply, no reasonable factfinder could observe the videoand conclude that all of the marchers were blocking traffic. The Court therefore finds that the police lacked probable causeto arrest the Fulton Street protesters for obstructing traffic.
b. Parading Without a PermitThe New York City Administrative Code provides that a “procession, parade, or race shall be permitted upon any streetor in any public place only after a written permit therefor has been obtained from the police commissioner.” N.Y.C.Admin. Code § 10–110(a). Defendants argue that the statute covers sidewalks, or at least that Defendants would be entitledto qualified immunity on this question. (Defs.' Fulton Br. at 23–24.) Their sole case supporting this proposition is Allenv. City of New York, in which Judge Gorenstein declined to rule definitively as to whether the statute covers sidewalksbut held that, in light of the ambiguity in the statute, a reasonable officer could conclude that it does. No. 03 Civ.2829(KMW)(GWG), 2007 WL 24796, at *7 (S.D.N.Y. Jan. 3, 2007).
*10 But even assuming that the statute covers activity on the sidewalks, the undisputed facts here indicate that the policegranted permission to the protesters on Fulton Street to conduct their march on the sidewalk, only to have that permissionabruptly revoked by Monahan minutes later. ( See Defs.' Fulton Video, ch. 2 at 2:30–2:40; id, ch. 7 at 0:24–0:36.) In thisregard, the facts are remarkably similar to those of a recent Seventh Circuit case in which the plaintiffs were arrested enmasse for a street protest in Chicago. In that case, the Seventh Circuit ruled that, although a permit would have generallybeen required for such a demonstration, the police had given verbal permission and thus were required to “give notice ofrevocation of permission to demonstrate before they can begin arresting demonstrators.” Vodak v. City of Chicago, 639F.3d 738, 746 (7th Cir.2011). The court affirmed that “the Fourth Amendment does not permit the police to say to a persongo ahead and march and then, five minutes later, having revoked the permission for the march without notice to anyone,
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arrest the person for having marched without police permission.” Id. at 746–47. The Seventh Circuit's logic applies withequal force here. The undisputed facts, particularly the video, confirm that the marchers on Fulton Street were attemptingto comply with police instructions and that the revocation of consent for the march came suddenly and without any realisticopportunity to disperse or correct the problems with the march. Accordingly, the Court finds that the police lackedprobably cause to arrest all marchers on Fulton Street for parading without a permit.
c. Defying a Police Order“A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, orrecklessly creating a risk thereof[,][h]e congregates with other persons in a public place and refuses to comply with alawful order of the police to disperse.” N.Y. Penal Law § 240.20(6). Thus, whether the police had probable cause to arrestthe marchers for defying a police order turns on two factors. The first is whether, and to what extent, the policecommunicated their orders to the entire crowd. See People v. Carcel, 3 N.Y.2d 327, 333 (1957) (“[T]he gravamen of theoffense ... is the refusal to desist from ... conduct after being ordered to by the police.”); see also Vodak, 639 F.3d at 745(“[B]efore the police could start arresting peaceable demonstrators for defying their orders they had to communicate theorders to the demonstrators.”). The second is whether the demonstrators were given an opportunity to comply with thoseorders-that is, whether they indeed refused to do so.
Based on the video and other evidence of record, Monahan's single dispersal order was not amplified and could not havebeen reasonably expected to be heard by all of the marchers. ( See, e.g., Defs.' Fulton video, ch. 7 at 0:05–0:36.) Themarchers at the back of the line were clearly oblivious to what was going on ahead of them and continued to cross ChurchStreet, swelling the ranks of marchers on the sidewalk. There is simply no evidence that the marchers who were more thana few feet from Monahan defied his order.
*11 Moreover, even if Monahan's dispersal order had been sufficiently loud to be heard by all, the marchers had noopportunity to comply with it. Monahan abruptly stopped the march within minutes of its beginning and ordered themarchers to move to the north side of Fulton Street against the St. Paul Cemetery fence. At that point, the police beganto form a line that effectively corralled the marchers on the sidewalk, leaving them nowhere to go even if they wanted toleave. Indeed, several marchers (and perhaps bystanders) who attempted to leave were ordered back to the sidewalk,making it clear that they were not free to leave and were effectively arrested. ( Id., ch. 2 at 2:20–2:32.) Because themarchers had no opportunity to comply with Monahan's so-called dispersal order, the Court finds that there was noprobable cause to arrest even protesters at the front of the march who might have been able to hear the order.
d. Obstruction of Governmental AdministrationThe Penal Law provides that “[a] person is guilty of obstructing governmental administration when he intentionallyobstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to preventa public servant from performing an official function, by means of intimidation, physical force or interference, or by meansof any independently unlawful act.” N.Y. Penal Law § 195.05. Defendants argue that Plaintiffs violated the statute byrefusing to comply with police orders to walk two abreast, obey traffic lights, not block pedestrian traffic, and disperse.(Defs.' Fulton Br. 26.) For the reasons stated above, the police could not have reasonably concluded that all of themarchers on Fulton Street were acting as a unit to commit any such violations. Thus, there was no probable cause to arrestprotestors for violating this statute.
3. Qualified ImmunityDefendants alternatively contend that the individual Defendants are entitled to qualified immunity. A police officer isentitled to qualified immunity for a false arrest claim if there was “arguable probable cause” for the arrest. Goldberg v.Town of Glastonbury, 453 F. App'x 40, 42 (2d Cir.2011) (quoting Amore v. Novarro, 624 F.3d 522, 536 (2d Cir.2010)).Arguable probable cause exists if ‘ “(a) it was objectively reasonable for the officer to believe that probable cause existed,or (b) officers of reasonable competence could disagree on whether the probable cause test was met .’ “ Id. (quoting
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Amore, 624 F.3d at 536).
Based on the undisputed facts, and particularly the video of the Fulton Street march and arrests, the Court finds that therewas not even arguable probable cause to make those arrests. At most, reasonable officers could disagree as to whethersome of the marchers were obstructing traffic; however, no reasonably competent officer could have believed that all ofthe marchers on Fulton Street had violated the law and were properly subject to arrest. As noted above, it was clearlyestablished by 2004 that an officer must have individualized probable cause to arrest an individual and that mere proximityto illegal conduct does not establish probable cause with respect to an individual. See, e.g., Ybarra, 444 U.S. at 91; Rogersv. City of Amsterdam, 303 F.3d 155, 160 (2d Cir.2002) (reversing district court's grant of qualified immunity on falsearrest claim where “[t]he information available to [the officer] indicated that [the plaintiff] was nothing more than aninterested bystander,” even though the officer arguably had probable cause to arrest others).
* * **12 For the foregoing reasons, the Court grants Plaintiffs' motions for summary judgment with respect to their false arrestclaims at Fulton Street on August 31, 2004, and denies Defendants' motion.
C. East 16th Street Arrests1. FactsOn August 31, 2004, shortly before 7:00 p.m., a large number of individuals, including two marching bands, gathered inUnion Square Park in Manhattan to protest the RNC. (Defs.' East 16 56.1 ¶¶ 16–17.) Shortly thereafter, a group, includingone of the marching bands, left the park and began marching north up Union Square East on both the street and thesidewalk, blocking traffic and chanting “our street.” (Decl. of Gerald S. Smith, dated Oct. 3, 2011, No. 04 Civ. 7921, Doc.No. 266 (“Smith Decl.”), Ex. D (“Defs.' East 16 Video”), ch. 2 at 3:15–3:45.FN8) The marchers did not have a permitto parade (Defs.' East 16 56.1 ¶ 19), nor is there any suggestion that the police expressly consented at any time to theprotesters marching either on the street or on the sidewalk. As the group proceeded north on Union Square East, the policeformed a line to prevent the marchers from proceeding further up the block, prompting the marchers to turn right onto East16th Street. (Defs.' East 16 56.1 ¶ 32; Defs.' East 16 Video, ch. 2 at 5:50–6:00.)
FN8. Many of these videos do not nave time stamps, and the times provided herein reflect the time in the videocompilation as a whole rather than that reflected in a time stamp in the video itself.
As the group, which now numbered in the hundreds, entered East 16th Street, NYPD Deputy Inspector James Essig gaveunamplified orders for the marchers to stop but “knew his order was likely inaudible.” (Dinler East 16 Add'l Facts in Opp'nto Defs.' 56.1 (“Dinler Add'l Facts”) ¶ 72.) The police formed lines on both the east and west ends of the stretch of East16th Street between Union Square East and Irving Place. (Decl. of Jonathan C. Moore, dated Oct. 3, 2011, No. 04 Civ.9216, Doc. No. 451 (“Moore Decl.”), Ex. A (“MacNamara TARU Video”), ch. 3 at 0:36–0:50; Defs .' East 16 56.1 ¶ 45.)Inspector Gerald Dieckmann gave an unamplified order directing people to return to the park, but did not know whetheranyone heard him. (Defs.' East 16 56.1 ¶ 64.)
On East 16th Street, most of the marchers remained in the middle of the street, blocking the roadway entirely, and spillingover into the sidewalk as well. ( E.g., Defs.' East 16 Video, ch. 3 at 2:00, ch. 4 at 0:01–1:20, ch. 5 at 0:01–2:30.) The groupwas playing music, chanting, and dancing, and some people also sat in the street. ( Id., ch. 5 at 0:01–2:30.) Several people,many of whom are Plaintiffs, were also present on the sidewalk of East 16th Street between Union Square East and IrvingPlace. Some were part of the protest, but many assert that they were present on the sidewalk for other purposes-as legalobservers, as curious bystanders, or for wholly unrelated reasons, such as walking to or from work. ( E.g., Dinler East 1656.1 ¶¶ 2–5, 37–38; MacNamara East 16 56.1 ¶¶ 2–6.)
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By the time the crowd reached the eastern end of the block at Irving Place, there was a line of police motorcycles blockingthe way. (Defs.' East 16 Video, ch. 4 at 1:30.) For some period of time, the line of police across East 16th Street at IrvingPlace extended only curb to curb, leaving the sidewalks open for people to leave. ( Id., ch. 5 at 5:50–6:00.) However, theDinler Plainitffs allege that at some point, as the march proceeded down the street, the line was extended building tobuilding. (Dinler East 16 56.1 ¶ 21; Dinler Opp'n 56.1 ¶ 42)
*13 By about 7:02 p.m., the NYPD also formed a line at the western end of East 16th Street at Union Square East,stretching across the sidewalk and preventing new people from entering the street. Several dozen people, however, appearto have been allowed to leave the street. (Defs.' East 16 56.1 ¶¶ 44–45; Defs.' East 16 Video, ch. 6 at 2:00–5:40.) Essigtestified that he saw “less than [forty]” people leave East 16th Street; Dieckmann believed that several people had left butdid not observe them leaving, and was only sure that three or four people had left. (Defs.' East 16 56.1 ¶ 48.)
Around 7:05 p.m., some members of the crowd who had been heading east on East 16th Street turned back and begantraveling west toward Union Square East. (Defs.' East 16 Video, ch. 5 at 1:10–1:20.) The crowd was met midway downthe block by a line of police in the street and was largely moved off of the street and directed onto the sidewalk, thoughpeople still remained in the street for several more minutes. ( Id., ch. 5 at 3:00, 12:00–14:00, 15:55; MacNamara TARUVideo, ch. 1 at 4:55–5:30.)
Although the video clearly shows that people were permitted to leave for some period of time, Plaintiffs Dinler, Maurer,and Waters allege that they looked for opportunities to leave at both ends of East 16th Street to no avail. (Dinler East 1656.1 ¶¶ 5–8, 21–23, 39–41.) Dinler further alleges that she expressly asked officers both at Union Square East and IrvingPlace for permission to leave but was not permitted to do so. ( Id. ¶¶ 6, 8.) Consistent with these allegations, LieutenantMark Keegan stated that when the crowd began to turn toward Union Square East, he told his officers not to let anyoneleave. (Dinler East 16 Opp'n 56.1 ¶ 46.)
After deciding that the protesters on East 16th Street should be arrested-the parties dispute precisely when this decisionwas made ( compare Defs.' East 16 56.1 ¶¶ 54–55, with MacNamara East 16 Opp'n 56.1 ¶¶ 54–55)–Essig sent two officersthrough the crowd to make unamplified announcements advising innocent bystanders to leave the area, but he did notprovide the officers with any instructions as to what to say or how to identify individuals who were not part of the protest.(Dinler Add'l Facts ¶¶ 78–81.) For example, one officer can be seen on video telling the cameraman that he would not bestopped if he “break [s] off and go[es] back”; however, the cameraman responds that he had just been pepper-sprayed onthe sidewalk. (Defs.' East 16 Video, ch. 6, at 6:00–6:15.) The cameraman ultimately exited at Irving Place several minuteslater. ( Id. at 8:15.) The officers spent no more than five minutes giving these instructions, and Essig did not follow upwith the officers before ordering that the people between the police lines be arrested. (Dinler Add'l Facts ¶¶ 81–82.)
The police began making arrests of individuals still in the street at about 7:12 p.m. At this point, chanting and musicalinstruments can be heard on the block, and onlookers remained on the sidewalk. (MacNamara TARU Video, ch. 1 at5:55–12:00.) By about 7:28 p.m., police began handcuffing people on the sidewalk as well. ( Id. at 17:20.)
*14 Several other Plaintiffs allege that they never heard a dispersal order or instructions regarding how to leave East 16thStreet, and it appears to be undisputed that there was no amplified dispersal order, although some officers gaveunamplified dispersal orders to the noisy crowd. (Dinler Add'l Facts ¶ 72; MacNamara East 16 Reply 56.1 ¶ 351.)Eventually, the police moved everyone out of the street and onto the north sidewalk of East 16th Street. (Defs.' East 1656.1 ¶ 52.) Ultimately, Essig and Dieckmann decided to place under arrest everyone remaining on the blocked-off stretchof East 16th Street. ( Id. ¶ 54.) However, it is not clear how the timing of this decision fits in with when police wereallowing people to leave. Indeed, the parties dispute the length of time that the police let anyone leave East 16th Streetafter the march first entered the street: Defendants contend that about ten to fifteen minutes passed, while Plaintiffs arguethat by the time they reached the line of officers, the block was already sealed.
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Defendants now argue that there was probable cause to arrest the Plaintiffs for (1) obstructing the sidewalk, in violationof N.Y. Penal Law § 240.20(5); and (2) parading without a permit, in violation of N.Y.C. Admin. Code § 10–110. TheCourt now proceeds to address each argument in turn.
2. DiscussionIn sharp contrast to the Fulton Street march, it is clear that, from the time the marchers left Union Square Park, a largenumber of individuals were openly and consciously violating the law. Dozens, possibly even hundreds of people wereblocking traffic by marching in the middle of Union Square East without a permit. When the group turned onto East 16thStreet, it rendered that street entirely impassable.
Some Plaintiffs contend that the NYPD played a part in funneling protestors onto East 16th Street. (Adams East 16 Opp'n56.1 ¶ 21.) The undisputed facts and video support the inference that the police did intend to divert the crowd onto East16th Street. ( E.g ., MacNamara TARU Video, ch. 3 at 0:22–0:31.) Still, setting aside for a moment those bystanders whowere confused as to the nature of the march, no serious argument can be made that the participants reasonably believedthat the march was permitted or consented to merely because the police attempted to divert a large and raucous crowdaway from the street that becomes Park Avenue and onto a less heavily trafficked road. Thus, the Court has little troubleconcluding that some people-in fact, a large number of people—present on the street at the time of the East 16th Streetarrests were actively engaged in obstructing the sidewalk in violation of N.Y. Penal Law § 240.20(5) and in paradingwithout a permit in violation of N.Y.C. Admin. Code § 10–110. At a minimum, the police could reasonably haveconcluded that this was the case.
However, at the time the protesters were still in the street, it is clear from the undisputed facts-particularly the video—thatbystanders were standing on the sidewalk and observing, but not participating in, the unlawful march on the street. ( E.g.,Defs .' East 16 Video, ch. 4 at 2:20.) It cannot be seriously contended that merely watching the march or covering themarch as a journalist either constitutes blocking traffic within the meaning of § 240.20(5) or makes the observer part ofa “unit” that is parading unlawfully. Cf. City of Chicago v. Morales, 527 U.S. 41, 53 (1999) (“[T]he freedom to loiter forinnocent purposes is part of the ‘liberty’ protected by the Due Process Clause of the Fourteenth Amendment. We haveexpressly identified this ‘right to remove from one place to another according to inclination’ as ‘an attribute of personalliberty’ protected by the Constitution.”). And it is clear from the undisputed facts that some individuals ultimately arrestedon East 16th Street were not involved in the parade and did not block vehicular traffic.
*15 The essential question for this location, then, is whether, at the time of the arrests, the police reasonably believed thateveryone arrested was participating in the unlawful conduct. Put another way, the question is whether, at the time thearrests were made, police reasonably believed that bystanders had had sufficient notice and opportunity to leave the areaand that only lawbreakers remained. ( See supra Section III.A (rejecting group probable cause theory in favor of the ruleof individualized probable cause).) It is clear that the police allowed some people to exit at both ends of the street, but thereremain significant disputes of fact as to the nature of the officers' efforts to cull the lawbreakers from the larger group andas to how much time elapsed before the police prevented people from leaving the street. Of course, the mere fact thatDinler was told that she could not leave does not alone prove that the police lacked probable cause to arrest the peopleon East 16th Street. However, Dinler's allegations, along with those of other Plaintiffs, raise serious questions regardingwhether the officers' efforts to (1) inform people that they must leave and then (2) allow people enough time to complywith the dispersal order were sufficient to make the subsequent arrests reasonable. When a mass arrest occurs in a settingwhere shortly before there was a clear mix of lawbreakers and bystanders, separating the bystanders requires more thanmerely allowing people to leave should it occur to them that they might be arrested if they remain. Instead, thereasonableness of the East 16th Street arrests turns on whether the police either sufficiently sorted the arrestees oraffirmatively conveyed to all bystanders that they should, and could, leave in order to avoid arrest. Cf. Parmley, 465 F.3dat 60 (holding that police could not arrest protestors for violating a state traffic statute unless they could “identify thoseindividuals who had entered the ... roadway”); Barham, 434 F.3d at 576 (holding that, in confronting a volatile
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demonstration, the police chief could not “deal with the crowd as a unit unless he first issued an order to disperse and thenprovided a reasonable period of time to comply with that order” (internal quotation marks omitted)). Neither the statementsof undisputed facts submitted by the parties nor the videos provide a sufficient answer to that question.
Accordingly, the Court finds that there remain questions of fact as to whether police made sufficient efforts to clearinnocent bystanders from the street before placing those that remained on East 16th Street under arrest. Therefore, theCourt cannot conclude whether the police had probable cause to arrest all the Plaintiffs.
3. Qualified ImmunityAs stated above with respect to the Fulton Street arrests, the law of individualized probable cause was clearly establishedwell before August 31, 2004. Accordingly, the arresting officers would be entitled to qualified immunity only if theyreasonably could have believed that each of the individuals arrested on East 16th Street was involved in unlawful conduct.As noted above, this inquiry turns on the officers' efforts to release innocent bystanders and to make sure that they arrestedonly those who participated in the unlawful march. Because there are questions of fact concerning whether the police madesufficient efforts to clear innocent bystanders from East 16th Street before arresting those who remained, the Court mustdeny Defendants' motion for summary judgment on the basis of qualified immunity.
* * **16 For the foregoing reasons, the Court denies the parties' cross-motions for summary judgment on Plaintiffs' false arrestsclaims for the arrests at East 16th Street on August 31, 2004.
IV. The Fingerprinting and No–Summons PoliciesA. FactsThe City expected up to half-a-million visitors during the RNC and believed that demonstrations might prove “highlycharged.” (Defs.' Policies 56.1 ¶ 10.) To prepare for this influx, the NYPD Intelligence Division gathered publiclyavailable information regarding potential threats to the City during the RNC and concluded that the City faced a “tripartitethreat” of international terrorism, anarchist violence, and widespread civil disobedience.FN9 ( Id. ¶¶ 46–49.) The City alsoobtained intelligence through publicly available sources that certain groups and individuals were planning activities to“shut down” the RNC and the City. ( Id. ¶ 98.) According to the NYPD, the intelligence “suggested that many individualswho were intent on committing unlawful conduct at RNC-related events and demonstrations were being directed not tobring any identification or to present false identification to law enforcement.” ( Id. ¶¶ 124–135.) In response to theperceived threats of mass disorder, the City adopted the “No–Summons Policy,” which suspended the City's ordinarypolicy of issuing summonses for violations,FN10 and the “Fingerprinting Policy,” which required fingerprinting of allpersons arrested for RNC-related criminal activity (collectively, the “Policies”). Both represented a departure fromordinary practices, under which an officer who had probable cause to believe that an individual had committed a violationwould merely issue a summons if the individual presented valid identification and had no outstanding warrants. (SchillerPolicies Opp'n 56.1 Add'l Facts in Opp'n to Defs.' 56.1 (“Schiller Policies Add'l Facts”) 111.)
FN9. The City also gathered information from confidential sources; however, Defendants do not rely on any confidentialinformation in these cases. (Defs.' Policies 56.1 ¶ 24 & n. 4.)
FN10. The term “violation” is used here to denote a category of offenses distinct from misdemeanors and felonies andfor which “a term of imprisonment in excess of fifteen days cannot be imposed.” N.Y. Penal Law § 10.00(3).
The Policies applied to anyone who was “engaged in criminal conduct that was related to the RNC.” ( Id. ¶ 151.) Activitywas deemed related to the RNC if it “revolved around the RNC or was connected to the RNC.” ( Id. ¶ 167.) Defendants
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assert that whether unlawful conduct was deemed “RNC-related” turned on whether it was the type of conduct that theintelligence suggested was a threat to the City or the RNC. ( Id. ¶ 170.) Counsel further clarified at oral argument that thePolicies “didn't apply to things that would have been going on anyway, absent the RNC”; for example, participants in anunauthorized road race that blocked traffic would not be subject to the policies. (Transcript of May 31, 2012 OralArgument, No. 04 Civ. 7921, Doc. No. 310 (“Tr.”), at 79:7–21.) Additionally, it is undisputed that the Policies were notaimed solely at large groups, as at least two individuals who were protesting alone were arrested subject to the Policies:(1) Georgianna Page was arrested in front of a Hummer dealership at 55th Street and 11th Avenue, where she wasprotesting the vehicles and their connection with the war in Iraq (Dinler Policies Opp'n 56.1 at 5); and (2) NikolasSikelianos was arrested while riding his bicycle on 27th Street between Madison and Park Avenues dressed as Uncle Sam(Decl. of Jeffrey Rothman, dated Nov. 3, 2011, No. 05 Civ. 767, Doc. No. 196 (“Rothman Decl.”), Ex. 15 at435:23–441:23). The same officer arrested both individuals and stated that he believed that they were “present at the RNCin order to make some sort of statement.” (Rothman Decl., Ex. 15 at 435:23–441:23.)
*17 The City asserts that it concluded that fingerprinting would allow law enforcement to ascertain whether a detainedindividual posed a particular threat. (Defs.' Policies 56.1 ¶¶ 201–209.) Moreover, in light of intelligence suggestingwidespread protests aimed at interfering with RNC activities as well as City traffic, the City concluded that custodial arrestwas necessary to prevent “escalating disorder.” ( Id. ¶ 187.) More generally, Deputy Commissioner Cohen, after analyzingother large-scale political protests, such as the 1999 World Trade Organization (“WTO”) protests in Seattle, concludedthat “it only takes a small number of extremist elements to trigger spiraling disorder, massive property damage, andviolence at large-scale demonstrations.” ( Id. ¶ 38.) At the same time, it is undisputed that the City granted permits forseveral large demonstrations, allowed other unpermitted marches, and established a demonstration area near MadisonSquare Garden. (Defs.' Policies 56.1 ¶¶ 251, et seq.)
The Parties offer sharply differing accounts of the decisionmaking process that resulted in the adoption of theNo–Summons and Fingerprinting Policies. Plaintiffs allege that the decision to implement the policy was made in April2004 and was unrelated to any research into particular RNC-related threats. (Schiller Policies Add'l Facts ¶ 23.)Specifically, based on the timeline provided by Defendants, Plaintiffs note that Cohen was not even involved in thedecision. ( Id. ¶ 25.) Plaintiffs further note that they were not allowed to depose Commissioner Raymond Kelly, seeSchiller v. City of New York, No. 04 Civ. 7922(KMK)(JCF), 2006 WL 2708464 (S.D.N.Y. Sept. 20, 2006), and that theperson whom they did depose, Department Chief Joseph Esposito, had little memory of the meeting in which the decisionwas made to adopt the Policies. (Schiller Policies Opp'n 56.1 ¶¶ 30–41.) By contrast, Defendants argue that the processwas “evolving” based on intelligence but that the final decision was not made until August 2004, and that in any eventthere was “ample support for the Policies” as of April 2004. (Defs.' Policies 56.1 ¶¶ 155–160.)
B. Discussion1. Motion to StrikeDefendants' motion for summary judgment on the No–Summons and Fingerprinting Policies relies heavily on Cohen'stestimony regarding the reasons underlying those policies. Cohen discussed both his personal knowledge of possibleterrorist threats to the City during the RNC and his research into similar incidents elsewhere, such as the 1999 WTOprotest in Seattle. Cohen asserts that both informed his conclusions about how seemingly peaceful protests can explodeinto chaos and violence. ( id. ¶¶ 32–38 .) Seeking to prevent consideration of Cohen's testimony, Plaintiffs argue thatCohen was improperly used as an expert witness even though Defendants disclosed Cohen only as a lay witness.
The line between expert and lay testimony is sometimes subtle. In Bank of China v. NBM LLC, the Second Circuit ruledthat the district court properly admitted testimony by a bank employee about his investigation of the defendant's activities“so long as the testimony was based on the investigation and reflected his investigatory findings and conclusions, and wasnot rooted exclusively in his expertise in international banking.” 359 F.3d 171, 181 (2d Cir.2004); see also United Statesv. Rigas, 490 F.3d 208, 224 (2d Cir.2007) (“A witness's specialized knowledge ... does not render his testimony ‘expert’
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as long as it was based on his investigation and reflected his investigatory findings and conclusions, and was not rootedexclusively in his expertise.” (internal quotation marks omitted)). However, the court ruled that his explanations of typicalinternational banking transactions and definitions of banking terms were expert testimony and thus the proponent of thistestimony was obligated to satisfy the requirements of Rule 702 of the Federal Rules of Evidence. Id. at 182.
*18 Having carefully considered the record and case law, the Court finds that Cohen's testimony about his investigationinto particular threats against the City during the RNC is properly considered as lay testimony, as it covers only hisfindings and conclusions relating to his own investigation. Although Cohen's general conclusions and assertions about therisks of chaos and disorder resulting from widespread civil disobedience look somewhat more like expert testimony, itis undisputed that he researched, analyzed, and considered these events in connection with his particular task-namely,determining potential terrorist and other threats to the City during the RNC. In contrast to the testimony in Bank of China,Cohen's testimony is not based only on general experience in the area. See id. at 181. Moreover, even Plaintiffs do notcontend that they were unaware of Cohen's role in analyzing a variety of sources of information to determine potentialthreats to the City during the RNC.
Accordingly, the Court finds that Cohen was properly disclosed as a fact witness, and his testimony can be considered assuch. The Court therefore denies Plaintiffs' motion to strike.
2. State Law Relating to the Fingerprinting Policya. Authority to Fingerprint Under N.Y. Criminal Procedure Law § 160.10(1)Plaintiffs' motion for summary judgment on the Fingerprinting Policy focuses on the state-law aspect of the claim. NewYork criminal procedure law provides that arrestees for felonies or misdemeanors must be fingerprinted. See N.Y.Crim.Proc. Law § 160.10(1). The statute further provides in relevant part that a police officer may take fingerprints in othercases if the officer “(a) [i]s unable to ascertain such person's identity; or (b) [r]easonably suspects that the identificationgiven by such person is not accurate.” Id. § 160.10(2). Plaintiffs argue that their fingerprinting was unlawful because theywere arrested on violations, not misdemeanors or felonies, and had valid identification that the police had no reason tobelieve was inaccurate. (Schiller Policies Br. at 20–21.)
Defendants appear to concede that the statute does not permit fingerprinting for violations as a general matter. ( See Defs.'Policies Br. at 53.) See People v. White, 56 N.Y.2d 110, 112 n. 1 (1982) (explaining that downgrading a charge to aviolation means that “one charged under this section is not to be fingerprinted”). Moreover, it is undisputed that themajority of Plaintiffs in fact possessed valid identification. ( See, e.g., Dinler Policies Response 56.1 ¶¶ 16, 37, 39, 57.)Thus, the only question is whether Defendants had reasonable grounds to suspect that Plaintiffs' means of identificationwere inaccurate. The record reflects that they did not.
Although Defendants maintain that the intelligence they gathered justified suspicion of the authenticity of protestors' meansof identification (Defs.' Policies 56.1 ¶¶ 124–135), the intelligence actually indicates only that certain groups of extremistsor anarchists were instructed to carry no identification (Schiller Policies Opp'n 56.1 ¶ 134; Defs.' Policies Reply 56.1 ¶124). Contrary to Defendants' assertions that protestors were directed to bring false identification, there does not seem tobe any suggestion in the intelligence provided by Defendants that RNC protesters were particularly likely, or wereinstructed, to carry false identification. Rather, the intelligence cited by Defendants in their original Rule 56.1 statementmerely establishes that individuals may have been creating false credentials to gain access to RNC-related events. (Defs.'Policies Reply 56.1 ¶ 124; Schiller Policies Opp'n 56.1 ¶ 134.)
*19 Defendants also cite to additional materials that appear to support only the conclusion that some protestors plannedto bring no identification and to supply false names to hospitals if they needed medical care. (Defs.' Policies Reply 56.1¶ 134; Affidavit of Daniel Mullkoff, dated Dec. 21, 2011, No. 04 Civ. 7922, Doc. No. 622–5, Ex. X at 6.) And while therewas a question as to the validity of one Plaintiffs identification, there is no assertion that any Plaintiff carried false
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identification as a tactic to confuse the police or evade responsibility. Finally, as for Defendants' argument that counterfeitidentifications can be easily obtained (Defs.' Policies 56.1 ¶¶ 136–145), that proposition logically would apply to anylawbreaker. Taken to its logical conclusion, such an argument would render the statutory requirement of reasonablesuspicion a nullity, with the result that any arrestee could be fingerprinted for any reason, or no reason, notwithstandingthe clear language of the statute.
Because Defendants have not presented any grounds for reasonable suspicion that the protestors' identification documentswere or would be inaccurate, the Court has little difficulty concluding that the Fingerprinting Policy violated Section160.10(1). That provision's plain language does not permit the state to suspend ordinary enforcement of fingerprinting lawsat whatever time, or with regard to whatever group, the state sees fit. To the contrary, Section 160.10(1), on its face,provides for an individualized determination as to the likelihood that the identification given was inaccurate. Defendantsconcede that they did not engage in such an individualized process. Accordingly, the Court finds that the FingerprintingPolicy adopted during the RNC violated Section 160.10.
b. Private Right of ActionDefendants argue that, even if the police were not authorized to fingerprint the RNC arrestees, there is no private rightof action for wrongful fingerprinting.FN11 Under New York law, where the statute neither expressly creates nor forbidsa private right of action, one may be implied based on the following factors: “(1) whether the plaintiff is one of the classfor whose particular benefit the statute was enacted; (2) whether recognition of a private right of action would promotethe legislative purpose; and (3) whether creation of such a right would be consistent with the legislative scheme.” Uhr v.E. Greenbush Cent. Sch. Dist., 94 N.Y.2d 32, 38 (1999) (internal quotation marks omitted).
FN11. To the extent that Plaintiffs raise a claim pursuant to 42 U.S .C. § 1983 based on violation of Section 160.10,that claim should fail, as § 1983 does not provide any remedy for violations of state law. Young v. Cnty. of Fulton, 160F.3d 899, 902 (2d Cir.1998).
Whether there is a private right of action for wrongful fingerprinting under Section 160.10 appears to be a matter of firstimpression. The only New York case involving wrongful fingerprinting arose under an older, since-repealed statute,NY.Crim. Proc. L. § 940. That statute gave police discretion to fingerprint persons arrested for certain, specified crimes.In Fidler v. Murphy, a New York Supreme Court affirmed a jury verdict and award of damages for wrongful fingerprintingwhere the plaintiffs had been arrested for a crime that was not among those the statute enumerated. See 203 Misc. 51,52–53 (N.Y.Sup.Ct.1952). Fidler's holding gives some support to the proposition that the general public, including peoplelike Plaintiffs, is the intended beneficiary of fingerprinting statutes.
*20 A comparison of Section 160.10 with prior fingerprinting statutes, such as N.Y.Crim. Proc. L. § 940, reinforces thatview. Section 160.10 reduced police discretion over fingerprinting by making the procedure mandatory in all misdemeanorand felony arrests; police retained discretion only over violations, and even then, the statute provided criteria to guideofficers' choices. A private right of action would promote the Legislature's apparent purpose in revising the statute byincentivizing police to fingerprint only where expressly authorized to do so.
A private right of action also is consistent with the apparent legislative scheme governing when fingerprinting is permittedfor violations. In permitting fingerprinting only when there are reasonable grounds to doubt the accuracy of an arrestee'sidentification, Section 160.10(2) appears designed both to verify that those arrested for violations are not wanted for moreserious crimes and to ensure that those arrested for violations receive greater consideration for their privacy than thosearrested for more serious crimes. A private right of action promotes Section 160.10's balance between safety and privacy.Furthermore, a private right of action does not interfere with any existing alternative civil remedy for wrongfulfingerprinting. See Sheehy v. Big Flats Cmty. Day, Inc., 73 N.Y.2d 629, 636 (1979).
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Accordingly, the Court finds that there is a private right of action for wrongful fingerprinting under N.Y.Crim. Proc. L.§ 160.10(1), and thus grants Plaintiffs' motions, and denies Defendants' motions, for summary judgment on the state lawfingerprinting claims.
3. Fourth AmendmentDefendants move for summary judgment on Plaintiffs' Fourth Amendment claims relating to the Policies on the groundsthat there is no constitutional right to a summons and that it is not unconstitutional to fingerprint individuals incident toarrest. (Defs.' Policies Br. 5–9.) By contrast, the MacNamara Plaintiffs contend that the Policies were objectivelyunreasonable under the Fourth Amendment because, inter alia, they were not necessary to address the City's goals relatingto maintaining order. (MacNamara Policies Opp'n 9–10.) FN12
FN12. Plaintiffs also argue that the Policies were unreasonable because they targeted expressive conduct. ( Id. at 11.)This argument coalesces with their First Amendment claims, which are addressed infra Section IV.B.4.
The Supreme Court has made clear that an individual may be placed under custodial arrest for “even a very minor criminaloffense.” Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001); see also Bryant v. City of New York, 404 F.3d 128,138–39 (2d Cir.2005) (holding that the City's decision to keep arrested protestors in custody until they could be arraigned,rather than issue them desk appearance tickets, was not objectively unreasonable). Plaintiffs' attempt to distinguish thesecases on the grounds that they addressed discretionary decisions by officers, whereas here there was a citywide policy,is thoroughly unconvincing. Indeed, the Supreme Court in Atwater specifically rejected the petitioner's invitation toexamine her arrest in light of its specific circumstances, observing that “a responsible Fourth Amendment balance is notwell served by standards requiring sensitive, case-by-case determinations of government need, lest every discretionaryjudgment in the field be converted into an occasion for constitutional review.” Atwater, 532 U.S. at 347. Thus, inupholding the constitutionality of the arrest in Atwater, the Supreme Court did not narrowly approve an officer'sdiscretionary actions in response to specific circumstances. Rather, it upheld the general principle that arrests even forminor criminal offenses are constitutional. The implications of Atwater are fatal to Plaintiffs' Fourth Amendmentarguments, for if the arrests are constitutionally valid, it follows that fingerprinting the arrestees is too. See United Statesv. Kelly, 55 F.2d 67, 70 (1932) (holding that fingerprinting incident to arrest for either a felony or a misdemeanor infringesno constitutional right); see also Cnty. of Riverside v. McLaughlin, 500 U.S. 44, 58 (1991) (recognizing fingerprintingas one of the “administrative steps incident to arrest”); Gerstein v. Pugh, 420 U.S. 103, 113–17 (1975) (holding that “apoliceman's on-the-scene assessment of probable cause provides legal justification for arresting a person suspected ofcrime, and for a brief period of detention to take the administrative steps incident to arrest”); United States v. Amerson,483 F.3d 73, 86 n. 14 (2d Cir.2007) (citing Kelly approvingly and applying its reasoning to DNA identification).
*21 Accordingly, the Court grants Defendants' motion for summary judgment with respect to Plaintiffs' claim that thePolicies violated the Fourth Amendment.FN13
FN13. Plaintiffs also contend that both Policies subjected them to unreasonably long detention, particularly becausethey were detained at a place where no fingerprinting equipment was available. The Court declines to rule on this claimat this time. To the extent that Plaintiffs argue that the Policies were designed or carried out to make Plaintiffs' conditionsof confinement lengthier and more onerous, the Court finds that that issue has not been fully presented and briefed andis more properly considered with respect to Plaintiffs' claims relating to the conditions of their confinement, which arenot before the Court at this time.
4. First AmendmentDefendants also seek summary judgment that the Policies did not violate Plaintiffs' First Amendment rights. Defendants
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contend that the Policies in no way burdened those rights because they aimed solely at unlawful conduct (Defs.' PoliciesBr. at 10–11); in the alternative, Defendants argue that even if the Policies burdened First Amendment rights, they werecontent neutral and thus warrant intermediate scrutiny, ( id. at 13.) Under intermediate scrutiny, restrictions on protectedspeech or conduct will be constitutional if they are “justified without reference to the content of the regulated speech, ...are narrowly tailored to serve a significant governmental interest, and ... leave open ample alternative channels forcommunication of the information.” Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). Defendants argue that thePolicies were adequately tailored to serve the important government interests of maintaining order and preventing violenceand terrorism, and that they did not restrict more speech than necessary.
a. No–Summons PolicyNeither of Defendants' theories is persuasive with respect to the No–Summons Policy. The No–Summons Policy did notmerely target unlawful conduct, as Defendants contend. Rather, it aimed at unlawful conduct connected to the RNC.(Defs.' Policies 56.1 ¶ 151 .) Thus, if one individual jaywalked as part of an antiwar march, and another individualjaywalked simply to save time, the former faced arrest while the latter risked only a summons, and the only factoraccounting for that difference was the former's association with expressive activity directed at the RNC. Not even allprotestors were equal under the No–Summons Policy. Only viewpoints within the RNC umbrella exposed protestors toarrest; those protesting issues unrelated to the RNC did not share that risk. (Tr. at 79:22–80:2.)
Thus, it is inaccurate to say that the NoSummons Policy targeted only unlawful conduct. Mere unlawful conduct, after all,did not trigger the Policy. What triggered the Policy was unlawful conduct plus an intent to express some view regardingthe RNC. That combination of triggers belies Defendants' claim that the No–Summons Policy did not burden FirstAmendment rights and was content-neutral. The NoSummons Policy did not simply burden expression incidentally, asis permitted under the First Amendment. See Sorrell v. IMS Health Inc., 131 S.Ct. 2653, 2664 (2011). Rather, it burdenedFirst Amendment rights directly by requiring harsher treatment for conduct associated with certain political expression.See id. (“Lawmakers may no more silence unwanted speech by burdening its utterance than by censoring its content.”).
Defendants cannot avoid application of First Amendment protections by claiming that this burden is acceptable simplybecause people could avoid arrest by not committing violations. (Defs.' Policies Br. 11.) Minor violations, such asjaywalking, are commonplace, particularly during large-scale First Amendment-protected expressive activity, even if theparticipants are striving to comply with the law. Significantly harsher treatment for people involved in certain kinds ofexpressive conduct, therefore, logically could “reasonably deter others from” engaging in that conduct. Tabbaa v. Chertoff,509 F.3d 89, 102 (2d Cir.2007).
*22 Furthermore, courts have long recognized that even forms of expression associated with unlawful conduct are notnecessarily without any First Amendment protections. See N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S. 886, 908(1982) (“The right to associate does not lose all constitutional protection merely because some members of the group mayhave participated in conduct or advocated doctrine that itself is not protected.”); see also R.A.V. v. City of St. Paul, Minn.,505 U.S. 377, 383–84 (1992) (invalidating a statute prohibiting cross-burning and noting that even constitutionallyprescribable speech is not “entirely invisible to the Constitution”). So even if it were the case that that the Policies targetedonly people who had violated the law,FN14 that fact alone does not necessarily strip the conduct of the First Amendmentprotections it would otherwise enjoy.
FN14. The MacNamara Plaintiffs argue that “the policy is plainly unconstitutional as to those plaintiffs whose chargeswere dismissed.” (MacNamara Policies Opp'n Br. 7–8.) This argument misses the mark for a variety of reasons. First,criminal charges may be dismissed on a number of grounds. Consequently, dismissal is not conclusive evidence ofinnocence and certainly is not evidence of lack of probable cause. See, e.g., Singer v. Fulton Cnty. Sheriff, 63 F.3d 110,119 (2d Cir.1995) (holding that arrest was supported by probable cause even when the charge was dismissed in theinterests of justice); Ryan v. N.Y. Tel. Co., 62 N.Y.2d 494, 504–05 (1984) (“A dismissal ‘in the interest of justice’ is
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neither an acquittal of the charges nor any determination of the merits. Rather, it leaves the question of guilt or innocenceunanswered.”). Second, the concern that the Policies were applied to people who should not have been arrested in the firstplace is more properly addressed, as it has been supra Section IV.B.3, in a discussion of the Fourth Amendment false arrestclaim. Any treatment to which such Plaintiffs were wrongly subjected, including detention and fingerprinting, is moreproperly considered in determining their damages for those claims.
Once the No–Summons Policy is cast in the proper light, it is also not tenable to maintain, as Defendants do, that thePolicy was content-neutral and thus entitled to intermediate scrutiny. (Defs.' Policies Br. 13.) Even though the“RNC-related” demonstrations to which the No–Summons Policy applied covered a wide range of political viewpoints,ranging from criticisms of overseas wars to pro-life denunciations of the Republican Party's abortion platform, seeMarcavage, 689 F.3d at 102, those viewpoints all focused on protesting the RNC. The No–Summons Policy would nothave applied, for example, to individuals protesting the labor policies of a City store, even if the demonstrations took placeat the same time and at the same location. (Tr. at 79:20–79:23.) Although the City may have enforced the Policy withoutregard to the particular political viewpoint that the protesters espoused, it cannot be said that the Policy was strictlycontent-neutral, because “the First Amendment's hostility to content-based regulation extends not only to a restriction ona particular viewpoint, but also to a prohibition of public discussion of an entire topic.” See Burson v. Freeman, 504 U.S.191, 197 (1992) (plurality) (concluding that law prohibiting any campaign-related speech near polling place was notcontent-neutral); accord Consol. Edison Co. v. Pub. Serv. Comm'n, 447 U.S. 530, 536–37 (1980) (holding that a regulationprohibiting public utilities from including inserts discussing “controversial issues of public policy,” but not othernon-political matters, with customers' monthly bills is a content-based restriction on speech).
Content-based restrictions on First Amendment-protected expression receive strict, rather than intermediate, scrutiny. SeeTurner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 642 (1994) (“Our precedents ... apply the most exacting scrutiny toregulations that suppress, disadvantage, or impose differential burdens upon speech because of its content.”);Mastrovincenzo v. City of New York, 435 F.3d 78, 98 (2d Cir.2006). Strict scrutiny is particularly appropriate where, ashere, the restrictions burden political speech. See McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 347 (1995) (“Whena law burdens core political speech, we apply ‘exacting scrutiny,’ and we uphold the restriction only if it is narrowlytailored to serve an overriding state interest.”). Under strict scrutiny, content-based restrictions are “presumptively invalid”unless the Government can show that the restriction is “narrowly tailored to promote a compelling Government interest.”United States v. Playboy Entm't Grp. Inc., 529 U.S. 803, 813 (2000).
*23 With respect to the interest promoted by the No–Summons Policy, Defendants assert that information available to theNYPD prior to the Policy's adoption suggested that large numbers of people were planning to come to the City toparticipate in unlawful and potentially violent activity and that those individuals, many of whom were from out of state,would likely engage in repeated unlawful conduct if they were merely given summonses. (Defs.' Policies 56.1 ¶¶ 175–189,215–217.)
It does not seem that Plaintiffs genuinely dispute-nor could they-that the City faced threats of terrorism and that the RNCcreated a particularly large threat of violence and disorder. ( Id . ¶¶ 64–66, 98–100; Schiller Policies Opp'n 56.1 ¶¶ 64–66,98–100.) Nor do Plaintiffs appear to dispute that preventing terrorist and anarchist attacks and massive disorder constitutesa compelling government interest. See, e.g., Marcavage, 689 F.3d at 105 (applying intermediate scrutiny but noting thatthe challenges surrounding the RNC “bespeak a significant-indeed, compelling-government interest in security”); Tabbaav. Chertoff, 509 F.3d 89, 103 (2d Cir.2007) (“It is undisputed that the government's interest in protecting the nation fromterrorism constitutes a compelling state interest....”).
Instead, Plaintiffs argue that the Policies were not actually motivated by the particular concerns cited by Defendants, andthat Deputy Commissioner Cohen was not involved in the creation of the No–Summons Policy, which was adopted in
19
April 2004 “without any deliberation.” (Schiller Policies Opp'n Br. 2.) Moreover, Plaintiffs dispute that the threats ofviolence, false identification, and repeated unlawful conduct were specifically connected with RNC protests. ( Id. at 3.)
The record does not definitively establish when the decision to adopt the No–Summons Policy was made. A memo fromMay 4, 2004 regarding an April 27, 2004 meeting of the “Mass Arrest/Prisoner Processing Sub–Committee” at theNYPD—before Cohen presented many of his findings to Commissioner Kelly and others-states that “[T]he followingitems were discussed: ... No summonses will be issued.” (Schiller Policies Add'l Facts ¶ 23.) Additionally, a former NYPDofficial, Patrick Devlin, asserted that as early as March or April, Chief Esposito stated “[d]efinitive[ly]” that no summonseswould be issued. ( Id.)
Defendants, however, insist that Cohen “conveyed the intelligence information and threat assessment to Chief Espositoand Commissioner Kelly and the reason he did so was to facilitate their planning for the policing of the Convention,”which seems to be undisputed. (Defs.' Policies Reply Br. 7; see Defs.' Policies 56.1 ¶¶ 64, 154) Moreover, it is undisputedthat, thereafter, numerous meetings took place in which NYPD officials further discussed, formulated, and refined thestrategies and policies that would be applied for RNC-related arrests. (Defs.' Reply 56.1 ¶¶ 149–150.) Based on all of theevidence in the record regarding the ongoing policymaking meetings, the Court finds that it cannot be reasonably disputedthat the intelligence presented throughout the summer of 2004 informed the NYPD's decisionmaking about policies toapply to the RNC. Thus, the Court finds that the No–Summons Policy was adopted to promote a compelling set ofgovernment interests.
*24 In light of that conclusion, the next question is whether the No–Summons Policy was narrowly tailored to serve thoseinterests. Narrow tailoring requires that the No–Summons Policy be the “least restrictive means to further the articulatedinterest,” Sable Commc'ns, Inc. v. F.C.C., 492 U.S. 115, 126 (1989)-in this case, averting mass disorder on a scale thatcould shut down the City and RNC (Defs.' Policies 56.1 ¶ 177). The Second Circuit recently confronted a similar questionin a similar factual context in Tabbaa v. Chertoff. That case involved a group of American citizens of Muslim faith whowere detained and searched by U.S. officials at the Canadian border pursuant to intelligence indicating that the conferencethey had attended in Canada included persons with known terrorist ties. Tabbaa, 509 F.3d at 92. As part of the specialoperation established in response to that intelligence, Homeland Security officers subjected the five plaintiffs to a screeningprocedure normally reserved for suspected terrorists, which included frisking, fingerprinting, photographing, and carsearches, and which resulted in detention of four to six hours. Id. at 94–95. The Tabbaa plaintiffs brought suit, claiming,inter alia, that the special operation violated their fundamental First Amendment right of free association. Id. at 95.
The Second Circuit agreed that the operation imposed burdens on the plaintiffs' rights that were “sufficiently ‘significant’to implicate the protections of the First Amendment.” Id. at 102. Nevertheless, applying a strict scrutiny standard, see id.,the court found that there were no viable less restrictive means of achieving the government's undisputedly compellinginterest in defending against terrorism. Id. at 103. Several aspects of the special operation informed that finding. First, theintelligence indicating that “certain individuals who were associated with terrorist organizations ... would be in attendance”at the conference gave the government “ample justification to implement the [operation], which was explicitly designed”to serve the government's anti-terrorism interest. Id. (internal quotation marks omitted; ellipses in original). Second, theoperation was “carefully circumscribed” and applied only to conferences “about which the government had specificintelligence regarding the possible congregation of suspected terrorists.” Id. Third, it was “limited to routine screeningmeasures.” Id. And finally, it applied only “to those individuals, regardless of their religion, whom [the government] couldestablish had attended the conferences in question.” Id.
The No–Summons Policy passes constitutional muster for similar reasons. Like the special operation procedure in Tabbaa,the No–Summons Policy was the City's answer to a threat derived from intelligence sources-namely, that demonstratorsaimed to “shut down the City of New York and the RNC” through “continuous unlawful behavior” (Defs.' Policies 56.1¶ 177 (internal quotation marks omitted); see id. ¶¶ 104–109, 111–115) and would be undeterred by the issuance of
20
summonses ( id. ¶¶ 182–183). The Policy was tailored to apply only to persons committing unlawful conduct related tothe RNC-that is, the very persons who posed the threat revealed by intelligence ( id. ¶¶ 186–188)–and was in place onlyfor the brief duration the threat existed ( Id. ¶ 172). Finally, like the measures in Tabbaa, the City had no “viablealternatives” given the masses of demonstrators present in New York for the Convention. In Tabbaa, the Second Circuitrejected plaintiffs' argument that surveillance of individual conference attendees suspected of terrorism would have beena less restrictive alternative, noting that because “approximately 13,000 people attended the [conference,] it is entirelyunrealistic to expect the government to have been able to identify and keep track of all those who personally interactedwith suspected terrorists who attended the conference.” Tabbaa, 509 F.3d at 104. During the RNC, the City similarly faceda large, undifferentiated threat involving hundreds of thousands of demonstrators. (Defs.' Policies 56.1 ¶ 8.) Under thosecircumstances, it is simply unrealistic to expect the City to have implemented a more narrowly tailored, individualizedalternative to the No–Summons Policy. The Policy was tailored to concerns that individuals involved in RNC-related,summons-eligible offenses were far less likely to be deterred from continuing their unlawful conduct than the ordinaryperson committing a summons-eligible offense. This is supported by the information obtained by the NYPD about RNCprotesters ( see Defs.' Policies 56.1 ¶¶ 175–186), as well as common sense. Put simply, individuals from outside of theCity, who were coming to the City for the sole purpose of protesting, were far more likely to repeat their illegal conductif not removed from the scene, particularly if they believed the NYPD was unlikely to pursue prosecution once theprotesters returned home. In this regard, RNC-related protesters were readily distinguishable from street vendors who placetheir carts in a location that blocks traffic, or even City-based labor protesters seeking to temporarily impede traffic to havetheir views heard. In short, then, the Court finds that the City was justified in applying the No–Summons Policy as a checkto serial protestors who might otherwise engage in repeat acts of disobedience designed to grind the City to a halt atminimal cost or inconvenience to the protestors themselves.
*25 Plaintiffs appear not to contend that there was a less restrictive alternative to the No–Summons Policy. To thecontrary, their chief attack on the Policy's tailoring is that it was insufficiently broad. Plaintiffs argue that if City officialstruly were motivated by concerns that “terrorists” would engage in summons-eligible offenses, they should have arrestedanyone guilty of illegal activity remotely connected to the Convention. (Schiller Policies Opp'n Br. 19.) Instead, Plaintiffsargue, the City continued to issue summonses for a range of offenses in the vicinity of Madison Square Garden, whereRNC delegates were staying, dining, and otherwise spending time. (Schiller Policies Add'l Facts ¶¶ 19–20; SchillerPolicies Br. 5–6).
Plaintiffs' tailoring argument fails for two reasons. First, no intelligence suggested that the RNC delegates, or the vendorsserving them, shared the demonstrators' goal of disrupting the Convention or shutting down the City. Therefore, it wouldhave been overreaching, not to mention foolish, to apply the No–Summons Policy to them.
Second, and more importantly, Plaintiffs misstate the City's interest. Terrorism was one but not the exclusive or chieffactor motivating the No–Summons Policy. It is undisputed that intelligence suggested to City officials that demonstratorsposed a more general threat of “continuous unlawful behavior” that could lead to mass disorder and shutting down the Cityand RNC. (Defs.' Policies 56.1 ¶ 177 (internal quotation marks omitted).) Perhaps it is a feature of the post–9/11 age thatpeople forget the dire consequences that can flow even from unlawful demonstrations, but it takes watching only a fewmoments of the video of the East 16th Street protest to see that no ambulance or fire truck could have gotten through thatcrowd of dancers, marchers, and instrument-wielding musicians. Writ large, the chaos on East 16th Street could haveparalyzed the City and denied its residents access to the emergency services on which lives depend. The protestors simplyhad no right to hold ambulances, cabs, and commuters hostage by staging an impromptu parade in the middle ofManhattan. As the Supreme Court has recognized,
[t]he rights of free speech and assembly, while fundamental in our democratic society, still do not mean that everyone withopinions or beliefs to express may address a group at any public place and at any time.... One would not be justified inignoring the familiar red light because this was thought to be a means of social protest. Nor could one, contrary to traffic
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regulations, insist upon a street meeting in the middle of Times Square at the rush hour as a form of freedom of speechor assembly. Governmental authorities have the duty and responsibility to keep their streets open and available formovement.
Cox v. Louisiana, 379 U.S. 536, 554–55 (1965). The No–Summons Policy was as much addressed to this general fear ofmass chaos as to the specific concerns regarding terrorism. Intelligence reports indicated that protestors planned to stagedemonstrations like the one on East 16th Street over and over. (Defs.' Policies 56.1 ¶¶ 186–187.) The City was notrequired to engage in an ineffectual game of tag, in which protestors could stop traffic, get a ticket, and proceed to theirnext rendezvous for further disorder. The No–Summons Policy was tailored to this well-founded fear of recidivism, whichcould have rendered normally minor infractions highly disruptive and potentially dangerous.
*26 Accordingly, the Court finds that the No–Summons Policy was narrowly tailored to address the unique challengesassociated with hosting a four-day national political convention. Based on these conclusions, the Court grants Defendants'motions for summary judgment regarding Plaintiffs' First Amendment claims challenging the City's No–Summons Policy.
b. Fingerprinting PolicyUnlike the No–Summons Policy, which the Court found imposed a significant burden on Plaintiffs' First Amendmentrights, the Court finds that the Fingerprinting Policy did not impose a sufficiently substantial burden to implicate the FirstAmendment. That is because once Plaintiffs were under arrest, the additional burden imposed by the Fingerprinting Policywas minimal. FN15 See Cnty. of Riverside, 500 U.S. at 58 (recognizing fingerprinting as one of the “administrative stepsincident to arrest”). Furthermore, there is no dispute that once the police had arrested the protestors, the police wereentitled to demand identification. It is difficult to see how fingerprinting chills First Amendment rights more thancollecting identification documents, particularly since both measures serve the same purpose of identifying arrestees. SeeKelly, 55 F.2d at 70 (holding that fingerprinting “is no more humiliating than other means of identification that have beenuniversally held to infringe neither constitutional nor common-law rights”).
FN15. Again, to the extent that some Plaintiffs appear to suggest that the Fingerprinting Policy was implemented in amanner that unreasonably prolonged their detention, such a claim is properly taken up at a later time.
Because the Court finds that the Fingerprinting Policy did not substantially burden Plaintiffs' First Amendment rights, theCourt also grants Defendants' motions for summary judgment regarding Plaintiffs' First Amendment claims challengingthe City's Fingerprinting Policy.
5. First Amendment RetaliationDefendants also seek summary judgment on Plaintiffs' claim that the Policies constituted retaliation for protestors' exerciseof their First Amendment rights. As an initial matter, it should be noted that Plaintiffs have not made any argumentspursuant to this First Amendment retaliation claim in their briefs. For this reason alone, the Court would be justified indeeming the claims abandoned and granting summary judgment in favor of Defendants. See Abrahams v. Young &Rubicam Inc., 79 F.3d 234, 237 (2d Cir.1996) (deeming claims not addressed in briefing waived); First Capital AssetMgmt., Inc. v. Brickellbush, 218 F.Supp.2d 369, 392–93 (S.D.N.Y.2002) (same). However, even if Plaintiffs' retaliationclaims were not abandoned, the Court finds that dismissal of such claims is appropriate.
“To establish a prima facie case of First Amendment retaliation, a plaintiff must establish (1) that the speech or conductat issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there was a causalconnection between the protected speech and the adverse action.” Scott v. Coughlin, 344 F.3d 282, 287 (2d Cir.2003)(internal quotation marks omitted). An adverse action in this context is “conduct that would deter a similarly situatedindividual of ordinary firmness.” Cox v. Warwick Valley Cent. Sch. Dist., 654 F.3d 267, 273 (2d Cir.2011) (internal
22
quotation marks omitted). However, even if the plaintiff establishes a prima facie case, the defendant may prevail onsummary judgment by establishing dual motivation, i.e., “that even without the improper motivation the alleged retaliatoryaction would have occurred.” Scott, 344 F.3d at 287–88.
*27 As set forth above, Plaintiffs have not established that the No–Summons and Fingerprinting Policies constitutedadverse actions. In any event, even if Plaintiffs could establish a prima facie case of retaliation, Defendants haveestablished that the Policies were motivated at least in substantial part by concerns about disorder that were specific to thenature of the RNC-related demonstrations. Accordingly, the Court dismisses Plaintiffs' retaliation claims, to the extent theyhave not been abandoned.
6. Fourteenth AmendmentAll but the Schiller and Dinler Plaintiffs further argue that the Policies constitute a violation of the Equal Protection Clauseof the Fourteenth Amendment insofar as they targeted individuals for different treatment based on whether they engagedin protest activities.
This claim substantially tracks Plaintiffs' First Amendment claims, since the crux of both claims is that the City burdenedPlaintiffs' rights to speech and association by singling out individuals engaged in expressive conduct for differenttreatment. Accordingly, for the reasons stated above, the Court grants Defendants' motion for summary judgment withrespect to Plaintiffs' Fourteenth Amendment claims. Cf. City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 55 n. 4(1986) (rejecting respondents' argument that the ordinance at issue violated the Equal Protection Clause where they failedto demonstrate that it violated the First Amendment).
* * *For the foregoing reasons, the Court grants Defendants' motions for summary judgment on Plaintiffs' constitutional claimsrelating to the No–Summons and Fingerprinting Policies.
V. ConclusionFor the reasons set forth above, Defendants' motions for summary judgment with respect to the false arrest claims at FultonStreet are HEREBY DENIED, and Plaintiffs' motions for summary judgment with respect to the false arrest claims atFulton Street are GRANTED. With respect to the false arrest claims at East 16th Street, Defendants and Plaintiffs'cross-motions for summary judgment are DENIED. Defendants' motions for summary judgment with respect to theconstitutionality of the No–Summons and Fingerprinting Policies are GRANTED. Plaintiffs' motions for summaryjudgment with respect to their state law fingerprinting claims are GRANTED, and Defendants' motions are DENIED.Plaintiffs' motion to strike is DENIED.*28 By October 31, 2012, the parties shall submit a joint letter regarding the proposed next steps in these actions. In doingso, the parties should take this opportunity to reflect on this litigation and the prospects for a fair resolution of theremaining claims. The events underlying these actions occurred more than eight years, and two Republican NationalConventions, ago. In a different legal context, Justice Robert Jackson once warned of the tradeoff between the“inconvenience and costs of piecemeal review on the one hand and the danger of denying justice by delay on the other.”Dickinson v. Petroleum Conversion Corp., 338 U.S. 507, 511 (1950). This litigation threatens to achieve the worst of eachalternative, to the detriment of all parties and the Court itself. With that in mind, the Court urges the parties and theircounsel to confer and assess the proper course toward a speedy and just resolution of these actions.
SO ORDERED.
S.D.N.Y.,2012.Dinler v. City of New YorkSlip Copy, 2012 WL 4513352 (S.D.N.Y.)
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Supreme Court of the United StatesFred L. SHUTTLESWORTH, Petitioner,
v.CITY OF BIRMINGHAM, ALA.
No. 42.Argued Nov. 18, 1968.
Decided March 10, 1969.
Defendant was convicted of violating city ordinance making it an offense to participate in any parade, procession,or other public demonstration without first obtaining a permit from the city commission. The Recorder's Court ofthe City of Birmingham entered judgment of conviction, and the defendant appealed. The Circuit Court, on trialde novo, entered judgment of conviction, and the defendant appealed. The Court of Appeals, 43 Ala.App. 68, 180So.2d 114, reversed the judgment, and the city brought certiorari. The Supreme Court, 281 Ala. 542, 206 So.2d348, reversed the judgment of the Court of Appeals, and the defendant brought certiorari. The United StatesSupreme Court, Mr. Justice Stewart, held that fact, if true, that state Supreme Court's extraordinarily narrowconstruction of ordinance enabled the ordinance, otherwise invalid, to pass constitutional muster would not restorevalidity to conviction where administration of ordinance had led to denial or unwarranted abridgment of defendant'sright of assembly and opportunities for communication of thought and discussion of public questions in publicplaces.
Judgment reversed.
Law subjecting exercise of First Amendment freedoms to prior restraint of a license, without narrow, objective,and definite standards to guide licensing authority is unconstitutional. U.S.C.A.Const. Amend. 1.
Ordinance which makes peaceful enjoyment of freedoms guaranteed by Constitution contingent upon uncontrolledwill of an official, as by requiring a permit or license which may be granted or withheld in official's discretion, isan unconstitutional censorship or private restraint upon enjoyment of such freedoms. U.S.C.A.Const. Amend. 1.
Person faced with an unconstitutional licensing law which purports to require a license as a prerequisite to exerciseof right of free expression may ignore the law and engage with impunity in exercise of such right. U.S.C.A.Const.Amend. 1.
Fact that one subject to restraints of unconstitutional licensing ordinance has not yielded to its demands will notpreclude him from having right to attack constitutionality of ordinance.
Municipality must, in interest of traffic regulation and public safety, exercise a great deal of control over use ofpublic streets and sidewalks.
Governmental authorities have duty and responsibility to keep streets open and available for movement.
Streets and parks are held in trust for use of public.
Use of streets and public places is part of privileges, immunities, rights, and liberties of citizens. U.S.C.A.Const.
Amends. 1, 14.
United States citizen's privilege to use streets and parks for communication of views on national questions may beregulated in interest of all. U.S.C.A.Const. Amends. 1, 14.
United States citizen's privilege to use streets and parks for communication of views and national questions isrelative, not absolute, and must be exercised in subordination to the general comfort and convenience and incountenance with peace and good order but must not, in guise of regulation, be abridged or denied. U.S.C.A.Const.Amends. 1, 14.
Statute preventing serious interference with normal usage of streets and parks is valid, but licensing system whichvests in an administrative official discretion to grant or withhold a permit upon broad criteria unrelated to properregulation of public places is invalid. U.S.C.A.Const. Amends. 1, 14.
In regard to use of public streets and sidewalks, municipality may not empower its licensing officials to roamessentially at will, dispensing or withholding permission to speak, assemble, picket, or parade according to theirown opinions regarding potential effect of the activity on welfare, decency, or morals of community.U.S.C.A.Const. Amends. 1, 14.
In determining validity of conviction under municipal licensing ordinance regulating parades, processions, andother public demonstrations and capable of being construed so that it would be constitutional, inquiry would bewhether control of use of streets for a parade or procession was, in fact, exerted so that it did not deny orunwarrantedly abridge right of assembly and opportunities for communication of thought and discussion of publicquestions in public places. U.S.C.A.Const. Amend. 1.
United States Supreme Court could properly, in subsequent litigation before the Supreme Court and between thesame parties, take judicial notice of record in prior litigation formerly before the Supreme Court.
Conviction for violating city ordinance making it an offense to participate in any parade, procession, or other publicdemonstration without a permit was invalid, where city authorities acting under ordinance had refused to permita demonstration by defendant and others under any circumstances, even though state Supreme Court subsequentlyupheld ordinance by construing it to require issuance of permit if convenience of public use of streets or sidewalkswas not unduly disturbed. U.S.C.A.Const. Amends. 1, 14.
Fact, if true, that state Supreme Court's extraordinarily narrow construction of municipal licensing ordinanceregulating parades, processions, or other public demonstrations enabled the ordinance, otherwise invalid, to passconstitutional muster would not restore validity to conviction for violation of ordinance, where, in regard to eventsleading up to conviction, administration of ordinance led to denial or unwarranted abridgment of defendant's rightof assembly and opportunities for communication of thought and discussion of public questions in public places.U.S.C.A.Const. Amends. 1, 14.
*148 Jack Greenberg, New York City, for petitioner.
Earl McBee, Birmingham, Ala., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
The petitioner stands convicted for violating an ordinance of Birmingham, Alabama, making it an offense to
participate in any ‘parade or procession or other public demonstration’ without first obtaining a permit from theCity Commission. The question before us is whether that conviction can be squared with the Constitution of theUnited States.
On the afternoon of April 12, Good Friday, 1963, 52 people, all Negroes, were led out of a Birmingham churchby three Negro ministers, one of whom was the petitioner, Fred L. Shuttlesworth. They walked in orderly fashion,two abreast for the most part, for four *149 blocks. The purpose of their march was to protest the alleged denialof civil rights to Negroes in the city of Birmingham. The marchers stayed on the sidewalks except at streetintersections, and they did not interfere with other pedestrians. No automobiles were obstructed, nor were trafficsignals disobeyed. The petitioner was with the group for at least part of this time, walking alongside the others, andonce moving from the front to the rear. As the marchers moved along, a crowd of spectators fell in behind themat a distance. The spectators at some points spilled out into the street, but the street was not blocked and vehicleswere not obstructed.
At the end of four blocks the marchers were stopped by the Birmingham police, and were arrested for violating s1159 of the General Code of Birmingham. That ordinance reads as follows:
‘It shall be unlawful to organize or hold, or to assist in organizing or holding, or to take part or participate in, anyparade or procession or other public**938 demonstration on the streets or other public ways of the city, unless apermit therefore has been secured from the commission.
‘To secure such permit, written application shall be made to the commission, setting forth the probable numberof persons, vehicles and animals which will be engaged in such parade, procession or other public demonstration,the purpose of which it is to be held or had, and the streets or other public ways over, along or in which it is desiredto have or hold such parade, procession or other public demonstration. The commission shall grant a written permitfor such parade, procession or other public demonstration, prescribing the streets or other public ways which maybe used therefor, unless in its judgment the public welfare, peace, safety, health, decency, good order, morals orconvenience require that it be *150 refused. It shall be unlawful to use for such purposes any other streets or publicways than those set out in said permit.
‘The two preceding paragraphs, however, shall not apply to funeral processions.’
The petitioner was convicted for violation of s 1159 and was sentenced to 90 days' imprisonment at hard labor andan additional 48 days at hard labor in default of payment of a $75 fine and $24 costs. The Alabama Court ofAppeals reversed the judgment of conviction, holding the evidence was insufficient ‘to show a procession whichwould require, under the terms of s 1159, the getting of a permit,’ that the ordinance had been applied in adiscriminatory fashion, and that it was unconstitutional in imposing an ‘invidious prior restraint’ withoutascertainable standards for the granting of permits. 43 Ala.App. 68, 95, 83, 180 So.2d 114, 139, 127. The SupremeCourt of Alabama, however, giving the language of s 1159 an extraordinarily narrow construction, reversed thejudgment of the Court of Appeals and reinstated the conviction. 281 Ala. 542, 206 So.2d 348. We granted certiorarito consider the petitioner's constitutional claims, 390 U.S. 1023, 88 S.Ct. 1417, 20 L.Ed.2d 280.
[1] Headnote Citing References[2] Headnote Citing References[3] Headnote Citing References[4] Headnote CitingReferences There can be no doubt that the Birmingham ordinance, as it was written, conferred upon the CityCommission virtually unbridled and absolute power to prohibit any ‘parade,’ ‘procession,'FN1 or ‘demonstration’on the city's streets or public ways. For in deciding whether or not to withhold a permit, the members of theCommission were to be guided only by their own ideas of ‘public welfare, peace, safety, health, decency, goodorder, morals or convenience.’ This ordinance as it was written, therefore, fell squarely within the ambit of themany decisions of this Court over the last 30 years, holding that a law subjecting the exercise of First Amendmentfreedoms to *151 the prior restraint of a license, without narrow, objective, and definite standards to guide thelicensing authority, is unconstitutional.FN2 ‘It is settled by a long line of recent **939 decisions of this Court that
an ordinance which, like this one, makes the peaceful enjoyment of freedoms which the Constitution guaranteescontingent upon the uncontrolled will of an official-as by requiring a permit or license which may be granted orwithheld in the discretion of such official-is an unconstitutional censorship or prior restraint upon the enjoymentof those freedoms.’ Staub v. City of Baxley, 355 U.S. 313, 322, 78 S.Ct. 277, 282, 2 L.Ed.2d 302. And ourdecisions have made clear that a person faced with such an unconstitutional licensing law may ignore it and engagewith impunity in the exercise of the right of free expression for which the law purports to require a license.FN3‘The Constitution can hardly be thought to deny to one subjected to the restraints of such an ordinance the rightto attack its constitutionality, because he has not yielded to its demands.’ Jones v. City of Opelika, 316 U.S. 584,602, 62 S.Ct. 1231, 1242, 86 L.Ed. 1691 (Stone, C.J., dissenting), adopted per curiam on rehearing, 319 U.S. 103,104, 63 S.Ct. 890, 87 L.Ed. 1290.
FN1. Except funeral processions.
FN2. See Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949; Hague v. C.I.O., 307 U.S. 496,59 S.Ct. 954, 83 L.Ed. 1423; Schneider v. State, 308 U.S. 147, 163-165, 60 S.Ct. 146, 151-152, 84 L.Ed. 155;Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213; Largent v. Texas, 318 U.S. 418, 63 S.Ct. 667,87 L.Ed. 873; Jones v. City of Opelika, 316 U.S. 584, 600, 611, 62 S.Ct. 1231, 1240, 1245, 86 L.Ed. 1691 (Stone,C.J., dissenting) (Murphy, J., dissenting), vacated and previous dissenting opinions adopted per curiam, 319 U.S.103, 63 S.Ct. 890, 87 L.Ed. 1290; Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265; Tucker v. Texas,326 U.S. 517, 66 S.Ct. 274, 90 L.Ed. 274; Saia v. New York, 334 U.S. 558, 68 S.Ct. 1148, 92 L.Ed. 1574; Kunzv. New York, 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280; Niemotko v. Maryland, 340 U.S. 268, 71 S.Ct. 325, 328,95 L.Ed. 267, 280; Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098; Gelling v. Texas,343 U.S. 960, 72 S.Ct. 1002, 96 L.Ed. 1359; Superior Films, Inc. v. Department of Education, etc., 346 U.S. 587,74 S.Ct. 286, 98 L.Ed. 329; Staub v. City of Baxley, 355 U.S. 313, 78 S.Ct. 277, 2 L.Ed.2d 302; Cox v. Louisiana,379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471; Interstate Circuit, Inc. v. Dallas, 390 U.S. 676, 88 S.Ct. 1298, 20L.Ed.2d 225.
FN3. Lovell v. City of Griffin, 303 U.S., at 452-453, 58 S.Ct., at 669; Schneider v. State, 308 U.S., at 159, 165,60 S.Ct., at 152; Largent v. Texas, 318 U.S., at 419, 422, 63 S.Ct., at 668, 669; Jones v. City of Opelika, 316 U.S.,at 602, 62 S.Ct., at 1241, adopted per curiam on rehearing, 319 U.S., at 104, 63 S.Ct. 890; Staub v. City of Baxley,355 U.S., at 319, 78 S.Ct., at 280; Freedman v. Maryland, 380 U.S. 51, 56-57, 85 S.Ct. 734, 737-738, 13 L.Ed.2d649.
*152 [5] Headnote Citing References[6] Headnote Citing References[7] Headnote Citing References[8] HeadnoteCiting References[9] Headnote Citing References[10] Headnote Citing References[11] Headnote Citing ReferencesIt is argued, however, that what was involved here was not ‘pure speech,’ but the use of public streets andsidewalks, over which a municipality must rightfully exercise a great deal of control in the interest of trafficregulation and public safety. That, of course, is true. We have emphasized before this that ‘the First and FourteenthAmendments (do not) afford the same kind of freedom to those who would communicate ideas by conduct suchas patrolling, marching, and picketing on streets and highways, as these amendments afford to those whocommunicate ideas by pure speech.’ Cox v. Louisiana, 379 U.S. 536, 555, 85 S.Ct. 453, 464, 13 L.Ed.2d 471.‘Governmental authorities have the duty and responsibility to keep their streets open and available for movement.’Id., at 554-555, 85 S.Ct., at 464.
But our decisions have also made clear that picketing and parading may nonetheless constitute methods ofexpression, entitled to First Amendment protection. Cox v. Louisiana, supra; Edwards v. South Carolina, 372 U.S.229, 83 S.Ct. 680, 9 L.Ed.2d 697; Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093. ‘Whenever thetitle of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out
of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing publicquestions. Such use of the streets and public places has, from ancient times, been a part of the privileges,immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets andparks for communication of views on national questions may be regulated in the interest of all; it is not absolute,but relative, and must be exercised in subordination to the general comfort and convenience, and in consonancewith peace and good order; but it must not, in the guise of regulation, be abridged or denied.’ Hague v. C.I.O., 307U.S. 496, 515-516, 59 S.Ct. 954, 964, 83 L.Ed. 1423 (opinion of Mr. Justice Roberts, joined by Mr. Justice Black).
**940 *153 [12] Headnote Citing References[13] Headnote Citing References Accordingly, ‘although (a) thisCourt has recognized that a statute may be enacted which prevents serious interference with normal usage of streetsand parks, * * * we have consistently condemned licensing systems which vest in an administrative officialdiscretion to grant or withhold a permit upon broad criteria unrelated to proper regulation of public places.’ Kunzv. New York, 340 U.S. 290, 293-294, 71 S.Ct. 312, 315, 95 L.Ed. 280. See also Saia v. New York, 334 U.S. 558,68 S.Ct. 1148, 92 L.Ed. 1574; Niemotko v. Maryland, 340 U.S. 268, 71 S.Ct. 325, 328, 95 L.Ed. 267, 280. Evenwhen the use of its public streets and sidewalks is involved, therefore, a municipality may not empower itslicensing officials to roam essentially at will, dispensing or withholding permission to speak, assemble, picket, orparade according to their own opinions regarding the potential effect of the activity in question on the ‘welfare,’‘decency,’ or ‘morals' of the community.
Understandably, under these settled principles, the Alabama Court of Appeals was unable to reach any conclusionother than that s 1159 was unconstitutional. The terms of the Birmingham ordinance clearly gave the CityCommission extensive authority to issue or refuse to issue parade permits on the basis of broad criteria entirelyunrelated to legitimate municipal regulation of the public streets and sidewalks.
It is said, however, that no matter how constitutionally invalid the Birmingham ordinance may have been as it waswritten, nonetheless the authoritative construction that has now been given it by the Supreme Court of Alabamahas so modified and narrowed its terms as to render it constitutionally acceptable. It is true that in affirming thepetitioner's conviction in the present case, the Supreme Court of Alabama performed a remarkable job of plasticsurgery upon the face of the ordinance. The court stated that when s 1159 provided that the City Commission couldwithhold a permit whenever ‘in its *154 judgment the public welfare, peace, safety, health, decency, good order,morals or convenience require,’ the ordinance really meant something quite different:
‘(We) do not construe this (language) as vesting in the Commission an unfettered discretion in granting or denyingpermits, but, in view of the purpose of the ordinance, one to be exercised in connection with the safety, comfortand convenience in the use of the streets by the general public. * * * The members of the Commission may not actas censors of what is to be said or displayed in any parade. * *
‘* * * (We) do not construe s 1159 as conferring upon the ‘commission’ of the City of Birmingham the right torefuse an application for a permit to carry on a parade, procession or other public demonstration solely on theground that such activities might tend to provoke disorderly conduct. * * *
‘We also hold that under s 1159 the Commission is without authority to act in an arbitrary manner or withunfettered discretion in regard to the issuance of permits. Its discretion must be exercised with uniformity ofmethod of treatment upon the facts of each application, free from improper or inappropriate considerations andfrom unfair discrimination. A systematic, consistent and just order of treatment with reference to the convenienceof public use of the streets and sidewalks must be followed. Applications for permits to parade must be grantedif, after an investigation it is found that the convenience of the public in the use of the streets or sidewalks wouldnot thereby be unduly disturbed.’ 281 Ala., at 545-546, 206 So.2d, at 350-352.
[14] Headnote Citing References In transforming s 1159 into an ordinance authorizing no more than the **941objective and even-handed regulation *155 of traffic on Birmingham's streets and public ways, the Supreme Court
of Alabama made a commendable effort to give the legislation ‘a field of operation within constitutional limits.’281 Ala., at 544, 206 So.2d, at 350. We may assume that this exercise was successful, and that the ordinance asnow authoritatively construed would pass constitutional muster.FN4 It does not follow, however, that the severelynarrowing construction put upon the ordinance by the Alabama Supreme Court in November of 1967 necessarilyserves to restore constitutional validity to a conviction that occurred in 1963 under the ordinance as it was written.The inquiry in every case must be that stated by Chief Justice Hughes in Cox v. New Hampshire, 312 U.S. 569,61 S.Ct. 762, 85 L.Ed. 1049-whether control of the use of the streets for a parade or procession was, in fact,‘exerted so as not to deny or unwarrantedly abridge the right of assembly and the opportunities for thecommunication of thought and the discussion of public questions immemorially associated with resort to publicplaces.’ Id., at 574, 61 S.Ct., at 765.
FN4. The validity of this assumption would depend upon, among other things, the availability of expeditiousjudicial review of the Commission's refusal of a permit. Cf. Poulos v. New Hampshire, 345 U.S. 395, 420, 73 S.Ct.760, 773, 97 L.Ed. 1105 (Frankfurter, J., concurring in result); Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734,13 L.Ed.2d 649. See also the concurring opinion of Mr. Justice HARLAN, post, p. 943.
In Cox the Court found that control of the streets had not been exerted unconstitutionally. There the Court wasdealing with a parade-permit statute that was silent as to the criteria governing the granting of permits. In affirmingthe appellants' convictions for parading without a permit, the New Hampshire Supreme Court had construed thestatute to require the issuance of a permit to anybody who applied, subject only to the power of the licensingauthority to specify the ‘time, place and manner’ of the parade in order to accommodate competing*156 demandsfor public use of the streets. This Court accepted the state court's characterization of the statute, and its assurancethat the appellants “had a right, under the act, to a license to march when, where and as they did, if after a requiredinvestigation it was found that the convenience of the public in the use of the streets would not thereby be undulydisturbed, upon such conditions or charges in time, place and manner as would avoid disturbance.” 312 U.S., at576, 61 S.Ct., at 766. In affirming the New Hampshire judgment, however, this Court was careful to emphasize:
‘There is no evidence that the statute has been administered otherwise than in the fair and nondiscriminatorymanner which the state court has construed it to require.’ Id., at 577, 61 S.Ct., at 766.
In the present case we are confronted with quite a different situation. In April of 1963 the ordinance that was onthe book in Birmingham contained language that affirmatively conferred upon the members of the Commissionabsolute power to refuse a parade permit whenever they thought ‘the public welfare, peace, safety, health, decency,good order, morals or convenience require that it be refused.’ It would have taken extraordinary clairvoyance foranyone to perceive that this language meant what the Supreme Court of Alabama was destined to find that it meantmore than four years later; and, with First Amendment rights hanging in the balance, we would hesitate long beforeassuming that either the members of the Commission or the petitioner possessed any such clairvoyance at the timeof the Good Friday march.
**942 [15] Headnote Citing References But we need not deal in assumptions. For, as the respondent in this casehas reminded us, in assessing the constitutional claims of the petitioner, ‘(i)t is less than realistic to ignore thesurrounding relevant circumstances. *157 These include not only facts developed in the Record in this case, butalso those shown in the opinions in the related case of Walker v. City of Birmingham (1946), 388 U.S. 307 (87S.Ct. 1824, 18 L.Ed.2d 1210) * * *.'FN5 The petitioner here was one of the petitioners in the Walker case, inwhich, just two Terms ago, we had before us a record showing many of the ‘surrounding relevant circumstances'of the Good Friday march. As the respondent suggests, we may properly take judicial notice of the record in thatlitigation between the same parties who are now before us.FN6
FN5. Brief for Respondent 1-2.
FN6. National Fire Ins. Co. v. Thompson, 281 U.S. 331, 336, 50 S.Ct. 288, 290, 74 L.Ed. 881, and cases citedtherein.
[16] Headnote Citing References[17] Headnote Citing References Uncontradicted testimony was offered in Walkerto show that over a week before the Good Friday march petitioner Shuttlesworth sent a representative to apply fora parade permit. She went to the City Hall and asked ‘to see the person or persons in charge to issue permits,permits for parading, picketing, and demonstrating.’ She was directed to Commissioner Connor, who denied herrequest in no uncertain terms. ‘He said, ‘No, you will not get a permit in Birmingham, Alabama to picket. I willpicket you over to the City Jail,’ and he repeated that twice.' 388 U.S., at 317, n. 9, 325, 335, 339, 87 S.Ct., at 1830,1834, 1839, 1841.
Two days later petitioner Shuttlesworth himself sent a telegram to Commissioner Connor requesting, on behalf ofhis organization, a permit to picket ‘against the injustices of segregation and discrimination.’ His request specifiedthe sidewalks where the picketing would take place, and stated that ‘the normal rules of picketing’ would beobeyed. In reply, the Commissioner sent a wire stating that permits were the responsibility of the entireCommission rather than of a single Commissioner, and closing with the blunt admonition: ‘I insist that you *158and your people do not start any picketing on the streets in Birmingham, Alabama.’ Id., at 318, n. 10, 325, 335-336,339-340, 87 S.Ct. at 1830, 1834, 1839-1840, 1841-1842. FN7
FN7. The legal and constitutional issues involved in the Walker case were quite different from those involvedhere. The Court recently summarized the Walker decision as follows:‘In that case, the Court held thatdemonstrators who had proceeded with their protest march in face of the prohibition of an injunctive order againstsuch a march, could not defend contempt charges by asserting the unconstitutionality of the injunction. The properprocedure, it was held, was to seek judicial review of the injunction and not to disobey it, no matter howwell-founded their doubts might be as to its validity.’ Carroll v. President and Commissioners of Princess Anne,393 U.S. 175, 179, 89 S.Ct. 347, 350, 21 L.Ed.2d 325.
These ‘surrounding relevant circumstances' make it indisputably clear, we think, that in April of 1963-at least withrespect to this petitioner and his organizationFN8-the city authorities thought the ordinance meant exactly whatit said. The petitioner was clearly given to understand that under no circumstances would he and his group bepermitted to demonstrate in Birmingham, not that a demonstration would be approved if a time and place wereselected that would minimize traffic problems. There is no indication whatever that the authorities consideredthemselves obligated-as the Alabama Supreme Court more than four years later said that they were-to issue apermit ‘if, after an investigation **943 (they) found that the convenience of the public in the use of the streets orsidewalks would not thereby be unduly disturbed.’
FN8. In Walker the petitioner made an offer of proof that parade permits had been issued to other groups by thecity clerk at the request of the traffic bureau of the police department. 388 U.s,., at 325-326, 336, 340, 87 S.Ct.,1834-1835, 1840, 1842.
This case, therefore, is a far cry from Cox v. New Hampshire, supra, where it could be said that there was *159nothing to show ‘that the statute has been administered otherwise than in the * * * manner which the state courthas construed it to require.’ Here, by contrast, it is evident that the ordinance was administered so as, in the wordsof Chief Justice Hughes, ‘to deny or unwarrantedly abridge the right of assembly and the opportunities for thecommunication of thought * * * immemorially associated with resort to public places.’ The judgment is reversed.
Reversed.
Mr. Justice BLACK concurs in the result.
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
Mr. Justice HARLAN, concurring.
The Alabama Supreme Court's opinion makes it clear that if petitioner Shuttlesworth had carried his efforts toobtain a parade permit to the highest state court, he could have required the city authorities to grant permission forhis march, so long as his proposals were consistent with Birmingham's interest in traffic control. Thus, the difficultquestion this case presents is whether the Fourteenth Amendment ever bars a State from punishing a citizen formarching without a permit which could have been procured if all available remedies had been pursued.
The Court answers that a citizen is entitled to rely on the statutory construction adopted by the state officials whoare on the front line, administering the permit scheme. If these officials construe a vague statute unconstitutionally,the citizen may take them at their word, and act on the assumption that the statute is void. The Court's holdingseems to me to carry seeds of mischief that may impair the conceded ability of the authorities to regulate the useof public thoroughfares in the interests of *160 all. The right to ignore a permit requirement should, in my view,be made to turn on something more substantial than a minor official's view of his authority under the governingstatute.
Simply because an inferior state official indicates his view as to a statute's scope, it does not follow that the State'sjudiciary will come to the same conclusion. Situations do exist, however, in which there can be no effective reviewof the decision of an inferior state official. In the present case, for example, the decision of Commissioner Connorhad the practical effect of the decision of a court of last resort. One week before the Good Friday march,Shuttlesworth learned from Connor that he, as Commissioner of Public Safety, would not issue parade permits,and that the marchers would have to apply to the entire City Commission.FN1 But Birmingham's ordinances **944did not require a prompt decision by *161 the City Commission.FN2 Nor did the State of Alabama provide for aspeedy court review of the denial of a parade permit. FN3
FN1. I agree with any Brother STEWART that we may properly take judicial notice of the evidence of recordin Walker v. City of Birmingham, 388 U.S. 307, 87 S.Ct. 1824, 18 L.Ed.2d 1210 (1967). See 9 J. Wigmore,Evidence s 2579, at 570 (3d ed. 1940); Butler v. Eaton, 141 U.S. 240, 11 S.Ct. 985, 35 L.Ed. 713 (1891); Craemerv. Washington, 168 U.S. 124, 18 S.Ct. 1, 42 L.Ed. 407 (1897). That record shows that in response to a request forpermission to march on April 5 and 6, Mr. Connor replied by telegram on April 5:‘Under the provisions of the citycode of the City of Birmingham, a permit to picket as requested by you cannot be granted by me individually butis the responsiboity (sic) of the entire commission. I insist that you and your people do not start any picketing onthe streets in Birmingham, Alabama.‘Eugene ‘Bill’ Connor, Commissioner of Public Safety.'See Walker v.Birmingham, No. 249, October Term, 1966, Transcript of Record 415. Mr. Connor's telegram was received inevidence at trial. See Transcript, supra, at 350.I do not, however, find it appropriate to rely upon the slightly earlierepisode detailed in my Brother STEWART'S opinion, ante, at 942, as the trial judge ruled the uncontradictedsupporting testimony inadmissible. See Transcript, supra, at 355.
FN2. Section 1159 does not require the City Commission to act on an application within any fixed amount oftime. Indeed, by the time Connor definitively declared that he could not issue parade permits, it is not all clear thatpetitioner could even have made a timely permit application to the City Commission at its only remaining regularsession set before the scheduled Good Friday march. See General City Code of Birmingham s 21 (1944). Whilethe 1964 City Code makes it clear that petitioner's permit application would have been considered out of time, sees 2-10, the 1944 Code, which was applicable in 1963, is not clear on this point.
FN3. Although Shuttlesworth could have petitioned for a writ of mandamus in the Alabama Circuit Court if theCity Commission denied his application, that state court is not obliged to render a decision within any fixed periodof time.
Given the absence of speedy procedures, the Reverend Shuttlesworth and his associates were faced with a seriousdilemma when they received their notice from Mr. Connor. If they attempted to exhaust the administrative andjudicial remedies provided by Alabama law, it was almost certain that no effective relief could be obtained by GoodFriday. Since the right to engage in peaceful and orderly political demonstrations is, under appropriate conditions,a fundamental aspect of the ‘liberty’ protected by the Fourteenth Amendment, see Stromberg v. California, 283U.S. 359, 368-370, 51 S.Ct. 532, 535-536, 75 L.Ed. 1117 (1931); Hague v. C.I.O., 307 U.S. 496, 515-516, 59 S.Ct.954, 963-964, 83 L.Ed. 1423 (1939) (opinion of Roberts, J.); Garner v. Louisiana, 368 U.S. 157, 201-203, 82 S.Ct.248, 271-272, 7 L.Ed.2d 207 (1961) (opinion of Harlan, J.), the petitioner was not obliged to invoke procedureswhich could not give him effective relief. With fundamental rights at stake, he was entitled to adopt the moreprobable meaning of the ordinance and act on his belief that the city's permit regulations were unconstitutional.
*162 It may be suggested, however, that Shuttlesworth's dilemma was of his own making. He could have requesteda permit months in advance of Good Friday, thereby allowing Alabama's administrative and judicial machinery thenecessary time to operate fully before the date set for the march. But such a suggestion ignores the principleestablished. in Freedman v. Maryland, 380 U.S. 51, 58-61, 85 S.Ct. 734, 738-741, 13 L.Ed.2d 649 (1965), whichprohibits the States from requiring persons to invoke unduly cumbersome and time-consuming procedures beforethey may exercise their constitutional right of expression. Freedman holds that if the State is to protect the publicfrom obscene movies, it must afford exhibitors a speedy administrative or judicial right of review, lest ‘thevictorious exhibitor might find the most propitious opportunity for exhibition (passed).’ Id., at 61, 85 S.Ct., at 740.The Freedman principle is applicable here.FN4 The right to assemble peaceably **945 to voice political protestis at least as basic as the right to exhibit a motion picture which may have some aesthetic value. Moreover,slow-moving procedures have a much more severe impact in the instant case *163 than they had in Freedman.Though a movie exhibitor might suffer some financial loss if he were obliged to wait for a year or two while theadministrative and judicial mills ground out a result, it is nevertheless quite likely that the public would ultimatelysee the film. In contrast, timing is of the essence in politics. It is almost impossible to predict the political future;and when an event occurs, it is often necessary to have one's voice heard promptly, if it is to be considered at all.To require Shuttlesworth to submit his parade permit application months in advance would place a severe burdenupon the exercise of his constitutionally protected rights. Cf. William v. Rhodes, 393 U.S. 23, 33, 89 S.Ct. 5, 11,21 L.Ed.2d 24 (1968).
FN4. None of our past decisions have squarely considered whether parade licenses must be handled on anexpedited basis. In Cox v. New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049 (1941), the question wasnot argued. In Poulos v. New Hampshire, 345 U.S. 395, 73 S.Ct. 760, 97 L.Ed. 1105 (1953), Poulos' request fora permit to conduct religious services in a public park was refused by the Portsmouth City Council seven andone-half weeks before the first scheduled event. Since the time remaining was sufficient to obtain relief by wayof mandamus, see 345 U.S., at 419-420, 73 S.Ct., at 773-774 (opinion of Mr. Justice Frankfurter), there was noneed to consider whether the State had a constitutional obligation to provide a more rapid procedure. And, ofcourse, those cases which struck down regulatory schemes which purported to issue licenses on the basis ofunconstitutional standards did not reach the question presented here. See, e.g., Lovell v. City of Griffin, 303 U.S.444, 58 S.Ct. 666, 82 L.Ed. 949 (1938); Schneider v. State, 308 U.S. 147, 163-165, 60 S.Ct. 146, 151-152, 84 L.Ed.155 (1939); Largent v. Texas, 318 U.S. 418, 63 S.Ct. 667, 87 L.Ed. 873 (1943); Staub v. City of Baxley, 355 U.S.313, 78 S.Ct. 277, 2 L.Ed.2d 302 (1958).
I do not mean to suggest that a State or city may not reasonably require that parade permit applications be submittedearly enough to allow the authorities and the judiciary to determine whether the parade proposal is consistent withthe important interests respecting the use of the streets which local authority may legitimately protect. But suchapplications must be handled on an expedited basis so that rights of political expression will not be lost in a maze
of cumbersome and slow-moving procedures.
Neither the city of Birmingham nor the State of Alabama has established such expedited procedures. See nn. 2 and3, supra. Indeed, the city's parade ordinance does not establish any procedure at all to govern the consideration ofapplications. Section 1159 of the City Code does not state when an application must be submitted if it is to beconsidered timely. The ordinance does not state how an application is to be submitted to the ‘City Commission.’FN5 Nor have *164 regulations been published which would answer these questions. FN6
FN5. It would be most remarkable if every parade application involving the march of 52 persons is consideredin a plenary manner by the principal government body of a city so large as Birmingham. In fact, an offer of proofwas made in the Walker proceedings that the City Commission had never passed on permit applications in the past,but had delegated the task to inferior officials. See Transcript, supra, n. 1, at 290. The proof was not admitted onthe ground that it was irrelevant. Ibid.
FN6. At the trial in Walker v. City of Birmingham, the City Clerk, who kept records of the parade permits thathad been granted, stated that no regulations had been issued to fill in the gaps left by the Ordinance. See Transcript,supra, n. 1, at 286.
In the absence of any guidelines, the most that can fairly be asked of petitioner is that he make a good-faith effortto obtain a permit from the city authorities. Shuttlesworth so acted when he approached the city official most likelyto have the authority to deal with permit applications in an expedited manner-Commissioner Connor was themember of the City Commission in charge of public safety. It was Connor, not Shuttlesworth, who broke off alldiscussions **946 relating to the issuance of permits. After the Commissioner declared that he lacked the powerto act, it was reasonable to believe that no public authority would act in time. Since neither the city nor the Stateprovided sufficiently expedited procedures for the consideration of parade permits, petitioner Shuttlesworth cannotbe punished for the exercise of his constitutionally protected right of political expression.FN7
FN7. I do not reach the question whether the principle followed in such cases as Lovell, Schneider, Largent, andStaub, see n. 4, supra, allowing persons to ignore entirely licensing schemes which unconstitutionally impinge onother forms of free expression, should be extended to cover ‘parade’ permit statutes involving, as they do, aparticularly important state interest.
On this basis I concur in the reversal of the judgment of the Alabama Supreme Court.
U.S.Ala. 1969.Shuttlesworth v. City of Birmingham, Ala.,394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162
EXACT LOCATION OF DISMISSAL AREA APPROXIMATE DISMISSAL TIME: LOCATION OF REVIEWING STAND, IF ANY
DESCRIPTION OF VEHICLES AND/OR ANIMALS TO BE INCLUDED IN THE PARADE
DESCRIPTION OF UNIFORM OR EQUIPMENT TO BE USED BY PARADERS
WILL RIFLES OR IF YES, INDICATE QUANTITY AND TYPE:SHOTGUNS BE CARRIED
YES NOWILL RIFLES OR SHOTGUNS BE IF YES, INDICATE LOCATION AND PURPOSE:FIRED FOR CEREMONIAL PURPOSES
YES NONATURE OF PARADE
NAME OF GRAND MARSHAL OR CHIEF OFFICER OF PARADE OR RACE ADDRESS PHONE NO.
MEETINGS, IF ANY, TO BE HELD IN CONNECTION WITH PARADE OR RACE, EITHER BEFORE OR AFTER
APPLICATION FORPARADE PERMITPD 637-041 (Rev. 06-07)
O.C.D.P.P. No.DATE OF APPLICATION
TYPE OR PRINT LEGIBLYAPPLICANT’S NAME RESIDENCE ADDRESS PHONE NO.
STATE NAME AND ADDRESS OF CORPORATION, ORGANIZATION OR RELATIONSHIP OF APPLICANT TO CORPORATION,ASSOCIATION THAT APPLICATION IS MADE ON BEHALF OF ORGANIZATION OR ASSOCIATION
CHARACTER OF ORGANIZATION (SOCIAL, POLITICAL, ETC.) INCORPORATED WHERE?
YES NODATE OF INCORPORATION TOTAL MEMBERSHIP TOTAL PARTICIPANTS IN EVENT
HAS ORGANIZATION FILED WITH THE SECRETARY OF STATE A SWORN COPY OF ITS Yes IF YES, DATECONSTITUTION AND OTHER DOCUMENTS REQUIRED BY SEC. 53, CIVIL RIGHTS LAW. No
AS A REPRESENTATIVE OF THE ABOVE-MENTIONED CORPORATION, ORGANIZATION OR ASSOCIATION, I STATE THAT THESOURCE OF MY AUTHORITY TO SIGN THIS APPLICATION IS AS FOLLOWS:
BOROUGH EXACT LOCATION OF FORMATION AREA APPROXIMATE PARADE START TIME: FORMATION TIME:
DESCRIBE PARADE ROUTE: (Include The Width Or Number of Lanes Of All Roadways To Be Occupied By Parade)
DATE:
DAY OF WEEK:
CITY OF NEW YORK,
COUNTY OF _________________
_________________________________________________________________________________ BEING DULY SWORN,DEPOSES AND SAYS THAT ALL OF THE ANSWERS TO THE FOREGOING QUESTIONS ARE TRUE
Penalty For Falsifications: Falsification of Any Statement Made Herein ________________________________________________________________Is an Offense Punishable by a Fine or Imprisonment or Both SIGNATURE OF APPLICANT(NYC Administrative Code, Section 10-154).
SWORN TO BEFORE ME THIS______ DAY OF__________________ 20____ ____________________________________________________________(NOTARY PUBLIC OR COMMISSIONER OF DEEDS)
INSTRUCTIONS: PREPARE ______ COPIES. ANSWER ALL QUESTIONS AND SIGN ALL COPIES. NOTARIZE ORIGINAL COPY ONLY.
ON REVERSE SIDE OF THIS APPLICATION:1. List Titles, Names and Addresses of National, State and Local 2. List Names and Addresses of All Officers Who Will Officers of Sponsoring Organization. Participate in This Procession, Parade or Race.
NOTE:Each Organization or Society Desiring to Participate in a Parade Must Obtain a Permit From The Police Commissioner.
No Parades are Permitted on Sunday Before 2:00 P.M., Except as Specified in SECTION 14 OF THE GENERAL BUSINESS LAW.
ss.:
26 Misc.3d 42, 894 N.Y.S.2d 318, 2010 N.Y. Slip Op. 20000
View New York Official Reports version
Judges and AttorneysSupreme Court, Appellate Term, New York.
First Department.The PEOPLE of the State of New York, Respondent,
v.Jonathan BECK, Rebecca Heinegg, Thomas Melchor, Christopher Ryan, Caroline
Samponaro, Mark Taylor, and Blue Young, Defendants–Appellants.
Jan. 4, 2010.
Background: Following nonjury trial, defendants were convicted in the Criminal Court of the Cityof New York, New York County, Herbert J. Adlerberg, JHO, of disorderly conduct and paradingwithout a permit. Defendants appealed.
Holdings: The Supreme Court, Appellate Term, held that:(1) permit law under which defendants were convicted was unconstitutionally overbroad, but(2) evidence was sufficient to support disorderly conduct convictions.
Affirmed as modified.
City's permit law under which defendants were convicted for parading without a permit, whichdefined parade as “any march, motorcade, caravan, promenade, foot or bicycle race, or similar eventof any kind, upon any public street or roadway,” applied to essentially any group of people movingon a public street, including small groups, and as such was overbroad, in violation of the FirstAmendment; law burdened substantially more speech and expressive conduct than was necessaryto further the city's legitimate interests in crowd and traffic control, and it afforded the city, actingthrough the police commissioner, unduly broad discretion in determining whether a particular eventrequired a permit. U.S.C.A. Const.Amend. 1.
Evidence was legally sufficient to establish defendants' guilt of disorderly conduct for obstructingvehicular or pedestrian traffic, where defendants were riding or walking with their bicycles on publicstreets with scores of other cyclists. McKinney's Penal Law § 240.20(5).
**318 Cyrus R. Vance, Jr., District Attorney, New York City (Eric Rosen and Susan Gliner ofcounsel), for respondent.
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Oliver & Oliver, New York City (Gideon O. Oliver of counsel), for appellants.
Present McKEON, P.J., HEITLER, J.
**319 PER CURIAM.*43 Judgments of conviction (Herbert J. Adlerberg, JHO), rendered January 19, 2006, modified, onthe law, to the extent of vacating the convictions of parading without a permit and dismissing thatcharge as to each defendant, and otherwise affirmed.
In the early evening of February 25, 2005, a “Critical Mass” bicycle ride ( see Five Borough BicycleClub v. City of New York, 483 F.Supp.2d 351 [S.D.N.Y.2007]; Bray v. City of New York, 346F.Supp.2d 480 [S.D.N.Y.2004] ), which attracted approximately 150 participants, commenced fromUnion Square. The participants cycled out of Union Square Park en mass and on to public streetsadjacent to the park. Each of the defendants was arrested in the vicinity of Union Square and chargedwith disorderly conduct and parading without a permit (Administrative Code of City of N.Y. §10–110). At the time of their respective arrests, defendants were riding (or walking with) theirbicycles on public streets with scores of other cyclists. Following a nonjury trial, each defendant wasconvicted of disorderly conduct (Penal Law § 240.20[5] [obstruction of vehicular or pedestriantraffic] ) and parading without a permit (Administrative Code § 10–110[c] ).
With respect to their convictions of parading without a permit, defendants argue, among other things,that the version of the parade permit law under which they were convicted is unconstitutional on itsface because it failed to adequately define those events that required a permit. In light of thisinfirmity, defendants assert, the City possessed unfettered discretion in determining the events towhich the law applied and that the law was therefore overbroad. We agree, and vacate theconvictions of parading without a permit and dismiss those charges.
The parade permit law comprises two components: Administrative Code § 10–110 and title 38,chapter 19 of the Rules of the *44 City of New York ( see Five Borough Bicycle Club, 483F.Supp.2d at 357–359; People v. Bezjak, 11 Misc.3d 424, 430, 812 N.Y.S.2d 829 [2006]; see alsoWard v. Rock Against Racism, 491 U.S. 781, 795–796, 109 S.Ct. 2746, 105 L.Ed.2d 661 [1989] ).Administrative Code § 10–110(a) states, in relevant part, that “[a] procession, parade, or race shallbe permitted upon any street or in any public place only after a written permit therefor has beenobtained from the police commissioner.” At the time defendants were arrested and convicted, section19–02 of title 38 of the Rules of the City of New York (38 RCNY 19–02) defined a “parade orprocession” as “any march, motorcade, caravan, promenade, foot or bicycle race, or similar eventof any kind, upon any public street or roadway.” FN1
FN1. Section 19–02 was subsequently amended, effective February 25, 2007, to define a “parade”as “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 proceedingtogether upon any public street or roadway” ( see Five Borough Bicycle Club, 483 F.Supp.2d at358–359). No issue regarding the constitutionality of the amended parade permit law is before us on
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this appeal.
[1] As is clear from the plain language of Administrative Code § 10–110 and 38 RCNY 19–02, theprior version of the permit law applied to essentially any group of people moving on a public street,including small groups. The permit law under which defendants were convicted is thereforeoverbroad, since it burdens substantially more speech and expressive conduct than is necessary tofurther the City's legitimate interests in crowd and traffic control ( see **320 Santa Monica Food NotBombs v. City of Santa Monica, 450 F.3d 1022, 1038–1042 [2006]; American–ArabAnti–Discrimination Comm. v. City of Dearborn, 418 F.3d 600, 608 [2005]; Cox v. City ofCharleston, 416 F.3d 281, 284–287 [2005]; see generally Ward v. Rock Against Racism, 491 U.S.at 799, 109 S.Ct. 2746). That the City, in practice, may not have required permits for “parades” and“processions” involving small groups is immaterial; a court cannot presume that the officialresponsible for issuing permits will act in good faith and adhere to standards absent from the faceof the permit law ( see City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 770, 108 S.Ct.2138, 100 L.Ed.2d 771 [1988] ). Relatedly, the permit law under which defendants were convictedafforded the City, acting through the police commissioner, unduly broad discretion in determiningwhether a particular event required a permit ( see Forsyth County, Ga. v. Nationalist Movement, 505U.S. 123, 130–133, 112 S.Ct. 2395, 120 L.Ed.2d 101 [1992]; City of Lakewood, 486 U.S. at 757,108 S.Ct. 2138; see also Shuttlesworth v. City of Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22L.Ed.2d 162 [1969]; cf. Thomas v. Chicago Park Dist., 534 U.S. 316, 122 S.Ct. 775, 151 L.Ed.2d783 [2002] ). *45 Accordingly, defendants' convictions of parading without a permit cannot stand.
[2] Turning to defendants' convictions of disorderly conduct, we reject their constitutionalchallenges to Penal Law § 240.20(5) ( see People v. Tichenor, 89 N.Y.2d 769, 658 N.Y.S.2d 233,680 N.E.2d 606 [1997]; see also Cameron v. Johnson, 390 U.S. 611, 617, 88 S.Ct. 1335, 20 L.Ed.2d182 [1968]; Cox v. State of Louisiana, 379 U.S. 536, 553–556, 85 S.Ct. 453, 13 L.Ed.2d 471 [1965];Cantwell v. Connecticut, 310 U.S. 296, 308, 60 S.Ct. 900, 84 L.Ed. 1213 [1940] ). Moreover, wefind that the evidence, viewed in the light most favorable to the People, was legally sufficient toestablish defendants' guilt of disorderly conduct ( see People v. Danielson, 9 N.Y.3d 342, 349, 849N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), and that the portion of the verdict convicting defendants ofthat offense was not against the weight of the evidence ( see id. at 348–349, 849 N.Y.S.2d 480, 880N.E.2d 1; People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 [2006] ).
Defendants' argument that the People failed to disclose certain police communications ( see Bradyv. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 [1963]; People v. Rosario, 9 N.Y.2d 286,213 N.Y.S.2d 448, 173 N.E.2d 881 [1961] ) is unpreserved ( see People v. Rogelio, 79 N.Y.2d 843,580 N.Y.S.2d 185, 588 N.E.2d 83 [1992]; People v. Pines, 298 A.D.2d 179, 748 N.Y.S.2d 716[2002] ). As an alternative holding, we find that defendants' claim is unreviewable on the existingrecord, since defendants forfeited the opportunity to develop a factual basis for their claim that thepolice communications constituted Brady or Rosario material ( see People v. Ligon, 66 A.D.3d 516,887 N.Y.S.2d 60 [2009]; People v. Lorenzo, 272 A.D.2d 184, 708 N.Y.S.2d 859 [2000] ). We haveconsidered and rejected defendants' conclusory challenge to the facial sufficiency of the accusatory
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instruments.
This constitutes the decision and order of the Court.
N.Y.Sup.App.Term,2010.People v. Beck26 Misc.3d 42, 894 N.Y.S.2d 318, 2010 N.Y. Slip Op. 20000
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New York City, N.Y., Code § 10-110
NEW YORK CITY CHARTER, CODE, AMENDMENTS & RULESNEW YORK CITY ADMINISTRATIVE CODE
TITLE 10. PUBLIC SAFETYCHAPTER 1. PUBLIC SAFETY.
Currency up to Local Law 40 of 2012 and Chapters 1 - 447 of the Laws of the State of New Yorkfor 2012
Currency up to Local Law 40 of 2012 and Chapters 1 - 447 of the Laws of the State of New Yorkfor 2012
§ 10-110. Processions and parades.
a. Permits. A procession, parade, or race shall be permitted upon any street or in any public placeonly after a written permit therefor has been obtained from the police commissioner. Application forsuch permit shall be made in writing, upon a suitable form prescribed and furnished by thedepartment, not less than thirty-six hours previous to the forming or marching of such procession,parade or race. The commissioner shall, after due investigation of such application, grant such permitsubject to the following restrictions:1. It shall be unlawful for the police commissioner to grant a permit where the commissioner hasgood reason to believe that the proposed procession, parade or race will be disorderly in characteror tend to disturb the public peace;2. It shall be unlawful for the police commissioner to grant a permit for the use of any street or anypublic place, or material portion thereof, which is ordinarily subject to great congestion or traffic andis chiefly of a business or mercantile character, except, upon loyalty day, or upon those holidays orSundays when places of business along the route proposed are closed, or on other days between thehours of six thirty post meridian and nine ante meridian;3. Each such permit shall designate specifically the route through which the procession, parade orrace shall move, and it may also specify the width of the roadway to be used, and may include suchrules and regulations as the police commissioner may deem necessary;4. Special permits for occasions of extraordinary public interest, not annual or customary, or not sointended to be, may be granted by the commissioner for any street or public place, and for any dayor hour, with the written approval of the mayor;5. The chief officer of any procession, parade or race, for which a permit may be granted by thepolice commissioner, shall be responsible for the strict observance of all rules and regulationsincluded in said permit.b. Exemptions. This section shall not apply:
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1. To the ordinary and necessary movements of the United States army, United States navy, nationalguard, police department and fire department; or2. To such portion of any street as may have already been, or may hereafter be duly, set aside as aspeedway; or3. To processions or parades which have marched annually upon the streets for more than ten years,previous to July seventh, nineteen hundred fourteen.c. Violations. Every person participating in any procession, parade or race, for which a permit hasnot been issued when required by this section, shall, upon conviction thereof, be punished by a fineof not more than twenty-five dollars, or by imprisonment for not exceeding ten days, or by both suchfine and imprisonment.
HISTORICAL NOTE
Section added chap 907/1985 § 1
Subd. c amended L.L. 76/1995 § 1, eff. Sept. 28, 1995. Amendment
expires and is repealed May 1, 1996, as per L.L. 21/1996, subd. reverts
to previous language
DERIVATION
Formerly § 435-9.0 added chap 929/1937 § 1
Sub 2 amended LL 11/1958 § 1
CASE NOTES FROM FORMER SECTION
¶ 1. Under Admin. Code § 435-9.0, Police Commissioner held without power to grant a permit tothe United Labor and People's May Day Committee to parade on Eighth Avenue between 39th and17th Streets, on Friday, May 1, between 2:30 and 8:00 o'clock P.M., since Eighth Avenue between39th and 17th Streets is ordinarily subject to great congestion and is chiefly of a business ormercantile character, and the parade was not one which marched annually upon the streets more thanten years previous to July 7, 1914. That there have been May Day parades in New York andelsewhere in this country since 1890 was insufficient to bring the parade within the statutoryexemption.--George Kern, Inc. v. Monaghan, 129 (80) N.Y.L.J. (4-27-53) 1390, Col. 7 T.
¶ 2. The granting of a permit to the Federation of Hispanic Societies for a parade to be held on aSunday was not arbitrary. Evidence showed that the Commissioner had made a thoroughinvestigation prior to the granting of the permit and there was no reason to believe that the paradewould be disorderly or unlawful.--Matter of Colon, 139 (75) N.Y.L.J. (4-17-58) 6, Col. 5 M.
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CASE NOTES
¶ 1. A challenge to the constitutionality of the permit law is now pending. The plaintiffs representan organization known as the Million Marijuana March, which is dedicated to the legalization ofmarijuana for medicinal purposes. Plaintiffs allege that the law gives the Police Commissioner anoverly broad discretion as to whether or not to grant a permit, and that the mechanism for judicialreview is inadequate. The Second Circuit remanded the case to the District Court, and declined todetermine the issues as a matter of law. However, the court made certain important thresholddeterminations. One was that the statute provided for prior restraint on speech, and thus was subjectto stringent constitutional standards. Moreover, the court held that the plaintiff had standing tochallenge that portion of law that allowed for waiver of restrictions for occasions of “extraordinarypublic interest (Adm Code. 10-110(a)(4)), under which (allegedly) politically popular organizationshad obtained permits. McDonald v. Safir, 206 F.3d 183 (2d Cir. 2000).
¶ 2. No permit is necessary for a group to gather and demonstrate on a city sidewalk, so long as nosound amplification is issued and the demonstration does not involve a parade or procession.Metropolitan Council on Housing v. Safir, N.Y.L.J., June 14, 2000, page 40, col. 5 (U.S. Dist.Ct.S.D.N.Y.).
¶ 3. An accusatory instrument which charges a violation of this statute must set forth the followingelements: (1) that the person was part of a parade, procession or race; (2) that such parade,procession or race took place upon a public street or roadway; and (3) that the person did not havea permit issued by the Police Commissioner to participate in such parade, procession or race. Theaccusatory instrument was sufficient, where it alleged that the officer observed the defendant walkingwith over 100 other persons on a public street and that defendant did not have a permit. People v.James, 7 Misc.3d 363, 793 N.Y.S.2d 871 (Crim.Ct. New York Co.).
¶ 4. In one case, an accusatory instrument stated that the officer observed the defendant on a bicyclein the street among numerous other people also on bicycles, but does not state that defendant did nothave a parade permit at the time she engaged in the conduct in question. The court held that theaccusatory instrument failed to establish a key element of the statute and therefore failed to establisha prima facie case. Thus, the court dismissed the charges. See also, People v. Cohen, 6 Misc.3d1019(A), 2005 WL 293510, N.Y.L.J., Feb. 17, 2005, at 19, col. 1 (Crim.Ct. New York Co.).
¶ 5. The ordinance was found to be content neutral, and thus did not constitute a violation of the freespeech clauses of the state or federal Constitution. People v. James, 7 Misc.3d 363, 793 N.Y.S.2d871 (Crim.Ct. New York Co.). See also, People v. Cohen, 6 Misc.3d 1019(A), 2005 WL 293510,
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N.Y.L.J., Feb. 17, 2005, at 19, col. 1 (Crim.Ct. New York Co.).
¶ 6. An accusatory instrument under the statute must specify the particular illegal actions taken bythe defendant. It is not sufficient to state merely that defendant happened to be present in the areawhen a group of persons were arrested for violating the law. People v. Munoz, N.Y.L.J., May 4,2004, at 27, col. 1 (Crim.Ct. New York Co.).
¶ 7. A large group of people marching on the sidewalk could be deemed a “procession” for purposesof the restrictions contained in this section. Allen v. City of New York, 2007 WL 24796 (U.S. Dist.Ct. E.D.N.Y.).
Copyright © 2012 by New York Legal Publishing
NYC Code § 10-110
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9 NYCRR 300-1.2
N.Y. Comp. Codes R. & Regs. tit. 9, § 300-1.2
Title 9. Executive Department Subtitle G. Office of General Services Chapter IV.Facilities Planning and Operation Subchapter A. Division of Building AdministrationPart 300. Facility Use Subpart 300-1. General (Refs & Annos)Section 300-1.2. Definition of terms
(m) Public assembly shall mean any public meetings, demonstrations, parades, gatherings orother public expression of views where 20 or more persons outdoors or 10 or more personsindoors may reasonably be expected to be in attendance in public spaces.
(n) Public space shall mean those areas generally open to use by the public including parks andgrounds of buildings, entrances, lobbies, foyers, corridors, and when used for public meetings,meeting rooms and auditoriums and such other State facilities as may be designated from time totime by the commissioner.
Section 300-3.1. Prohibited activities
The activities and uses enumerated in this section shall be prohibited on all State property.
(a) Littering. No person shall litter. All persons shall use receptacles provided for the disposal ofrefuse. No person shall deposit household or commercial refuse on State property.
(b) Destruction or abuse of property or equipment. No person shall injure, deface, alter, writeupon, destroy, remove or tamper with in any way, any real or personal property or equipmentincluding, without limitation, vegetation, owned by, or under the jurisdiction of, the office.
(c) Failure to comply with directions. No person shall fail to comply with a lawful order of anypolice officer, security guard, or authorized employee of the office or the direction of any signerected by or at the direction of the office.
(d) Disorderly behavior. A person who commits any of the following actions shall be deemed tobe engaging in disorderly behavior in violation of these rules when such person:
(1) engages in a course of conduct or commits acts that unreasonably alarm or seriously annoyanother person;
(2) throws stones, other objects or missiles which may inflict bodily injury or damage to personsor property;
(3) obstructs vehicular or pedestrian traffic;
(4) climbs upon any wall, fence, structure or monument;
(5) engages in or encourages fighting or violent or threatening behavior;
(6) engages in a course of conduct or commits acts that endangers the safety of others or createsan unreasonable risk of damage to real or personal property;
(7) deposits bodily wastes upon grounds or other surfaces;
(8) except if authorized by a permit pursuant to section 300-2.2(d) of this Part, makes or causesnoise at a rate of over 95 decibels outdoors or 90 decibels indoors for an unreasonable period oftime;
(9) throws away or discards any lighted match, cigar, cigarette, charcoal or other burning objectother than in a receptacle provided for that purpose;
(10) operates any wheeled vehicle, snowmobile, or other equipment in such a manner as toendanger other persons or property or in such a manner so as to create an unreasonable noise ordisturbance;
(11) swims or wades in any pool or fountain.
(e) Loitering for illegal purposes. A person shall be guilty of loitering for illegal purposes inviolation of these rules when such person:
(1) loiters or remains on any State property for the purpose of engaging or soliciting anotherperson to engage in sexual activity; or
(2) loiters or remains on any State property for the purpose of unlawfully using, possessing,purchasing, distributing, selling or soliciting marijuana, alcohol or any controlled substance asdefined in section 220.00 of the New York State Penal Law.
(f) Avoiding charges. No person shall enter upon or use any State property without having paidany applicable charge or fee.
(g) Property closed to public. No person shall, without authorization, enter or remain upon anyState property or within any structure during such times when such property or structure has beendesignated as closed by a sign or by the commissioner.
(h) Use of escalators and stairways. No person shall use an escalator or stairway for other than itsintended purpose. No person shall walk or run on an escalator in the opposite direction of itsrotation. No person shall ride a bicycle, scooter, operate a vehicle, skateboard, roller-blade, orroller-skate upon any escalator or stairway. No person shall bring a cart or baby stroller or baby
carriage upon any escalator or stairway.
(i) Minors. No person having custody or control of a minor shall permit such minor to do any actin violation of a rule or regulation of the office. Minors under 14 years of age shall at all timeswhile on State property be under the supervision and control of a parent, guardian or responsiblecustodian.
(j) Hitchhiking. No person shall solicit a ride or hitchhike on State property. No person shall pickup a hitchhiker on State property.
(k) Animals. No person shall introduce or possess any animals within a State facility except forService Animals and police and fire dogs under the control of their handler, withoutauthorization from the commissioner. No person shall abandon an animal on State property.
(l) Firearms and deadly weapons.
(1) No person shall introduce, use, or possess a firearm or deadly weapon on State propertywithout authorization from the commissioner or State Police except:
(i) Federal, State, county and municipal police officers and armed couriers on official business,properly licensed to carry a firearm.
(ii) Off-duty Federal, State, county and municipal police officers provided the firearm isconcealed and the officer is properly licensed and authorized to carry a firearm while off duty.With respect only to the Empire State Plaza, such off duty police officers who carry a firearm ordeadly weapon that cannot be concealed must secure such firearm or deadly weapon at theConcourse State Police station for the duration of their visit. Firearms or deadly weaponsincapable of being concealed are prohibited on all other State property.
(2) The commissioner reserves the right to inspect any packages or containers that reasonablyappear capable of housing or enclosing a firearm or deadly weapon.
(3) Any firearms lawfully possessed and being brought on State property for an authorized gunshow/sale or display must be unloaded and transported in a carrying case to and from the actualplace of show/sale or display.
(m) Restrooms. No person shall use any restroom on State property or any fixture or equipmenttherein for other than its intended purpose. Prohibited activities include, but are not limited to,bathing, washing clothes or sleeping.
(n) Smoking. No person shall smoke in any area, building or portion of a building, structure orportion of a structure, on State property where signs are in place advising that smoking isprohibited at such location.
(o) Fire protection equipment. No person shall tamper with fire protection equipment on State
property.
(p) Open fires. Open fires are prohibited on State property, without authorization from thecommissioner.
(q) Running or jogging. No person shall run or jog in the interior area of a building on Stateproperty including, but not limited to, the concourse level of the Empire State Plaza unlessauthorized by the commissioner.
(r) Camping. No person shall engage in camping, or erect or maintain a tent, shelter, or structureon State property either individually or as part of a public assembly. Structures erected by theoffice as part of State property or as part of a temporary exhibition in connection with anauthorized special event are exempt from this prohibition.
(s) Skateboarding, roller-skating, roller-blading or bicycling. No person shall skateboard,roller-skate, roller-blade, bicycle or operate a scooter on State property in other than designatedareas and in compliance with all applicable helmet laws. In all other areas, these activities areprohibited. No person shall skateboard, roller-skate, roller-blade, bicycle or operate a scooter in amanner, which is unreasonable for the existing conditions or which endangers the safety ofpersons (including themselves) or property. Stunt riding and trick riding are hereby deemed to beinherently dangerous and are prohibited.
(t) Employee/vendor identification cards.
(1) No person shall convey or loan their New York State employee/vendor identification card toanother person for the purpose of allowing said person(s) to gain unauthorized entry onto Stateproperty.
(2) Any person found to be in possession of a New York State employee/vendor identificationcard who is unauthorized to carry such card shall be subject to prosecution under the provisionsof article 165 of the Penal Law of the State of New York, or any successor provisions thereof orany other applicable provisions of the Penal Law.
(3) All lost or stolen New York State employee/vendor identification cards shall be immediatelyreported to the Office of Access Control and ID Card Administration, Plaza Manager's Office,Room 130, Empire State Plaza, Albany, NY 12242.
(4) Upon separation from State service or termination of contractual services, the New YorkState employee/vendor identification card shall be surrendered to the issuing agent. Failure to doso may result in criminal prosecution as set forth in paragraph (2) of this subdivision.
Sec. filed April 8, 2003 eff. April 23, 2003; amds. filed Dec. 3, 2010 eff. Dec. 22, 2010.
9 NYCRR 300-3.1, 9 NY ADC 300-3.1
438 99 FEDERAL SUPPLEMENT, 2d SERIES
METROPOLITAN COUNCIL,INC., Plaintiff,
v.
Howard SAFIR, Commissioner of theNew York City Police Department;Henry Stern, Commissioner of theNew York City Parks Department;and the City of New York, Defen-dants.
No. 00 Civ. 4254(KMW).
United States District Court,S.D. New York.
June 12, 2000.
Tenants’ advocacy organization, whichplanned large, publicized protest of rentincreases for rent-regulated apartments bystaging vigil during which protesterswould lie and sleep on a city sidewalk nearmayor’s residence, sought preliminary in-junction prohibiting city from enforcing itspolicy against lying and sleeping on publicsidewalks. The District Court, Kimba M.Wood, J., held that city’s application of itspolicy to the vigil was likely not permissi-ble under First Amendment and injunctionwould be limited to preventing a priorrestraint on speech and leave city free topursue criminal proceedings after the pro-test.
Motion granted.
1. Equity O67Laches is an equitable doctrine ap-
plied to deny relief in the court’s discretionwhen it is clear that a plaintiff unreason-ably delayed in initiating an action and adefendant was prejudiced by the delay.
2. Civil Rights O268Tenants’ advocacy organization, which
waited under June 1 to choose location ofprotest of rent increases for rent-regulatedapartments, were not guilty of laches so asto preclude preliminary injunctive reliefprohibiting city from arresting protesters
for sleeping on public sidewalks, whereproposed rent increase was announced onMay 8, and was slated for debate at apreviously scheduled June 15 hearing.U.S.C.A. Const.Amend. 1.
3. Civil Rights O268
Tenants’ advocacy organization’s ap-plication for preliminary injunction pre-venting city from interfering with its planto engage in what it considered expressiveactivity by lying and sleeping on a citysidewalk was one for a prohibitory injunc-tion that would stay governmental actiontaken in the public interest pursuant to astatutory or regulatory scheme, and there-fore showing of clear or substantial likeli-hood of success was not required, onlyshowing of irreparable harm in the ab-sence of an injunction and a likelihood ofsuccess on the merits; the injunction, al-though not permitting the vigil to be un-done, would leave open the preferred formof relief against violations of laws limitingspeech. U.S.C.A. Const.Amend. 1.
4. Injunction O9Showing of clear or substantial likeli-
hood of success is inappropriate where in-junction sought is prohibitory in nature;such a heightened standard is appropriatewhen injunction sought is mandatory innature.
5. Civil Rights O268Tenants’ advocacy organization, which
planned large, publicized protest of rentincreases for rent-regulated apartments bystaging press conference and subsequentvigil during which protesters would lie andsleep on a city sidewalk near mayor’s resi-dence in order to symbolically convey thehomelessness which it contended would becaused if the proposed rent increases wereadopted, was entitled to preliminary in-junction prohibiting city from enforcing itspolicy against lying and sleeping on publicsidewalks; city’s application of its policy tothe vigil was likely not permissible underFirst Amendment since sleeping ban wasnot narrowly tailored to the asserted inter-
439METROPOLITAN COUNCIL, INC. v. SAFIRCite as 99 F.Supp.2d 438 (S.D.N.Y. 2000)
ests and injunction would be limited topreventing a prior restraint on speech andleave city free to pursue criminal proceed-ings after the protest. U.S.C.A. Const.Amend. 1; N.Y.McKinney’s Penal Law§ 240.20, subd. 5.
Christopher T. Dunn, Norman Siegel,Arthur Eisenberg, New York Civil Liber-ties Union Foundation, New York, NY, forMetro. Council, Inc.
OPINION & ORDER
KIMBA M. WOOD, District Judge.
Plaintiff Metropolitan Council, Inc. is atenants’ advocacy organization that oppos-es rent increases proposed by the RentGuidelines Board (the ‘‘Board’’), the NewYork City (the ‘‘City’’) agency that sets themaximum annual rent increases for NewYork’s rent-regulated apartments. Plain-tiff plans to protest the proposal, and topressure the City’s Mayor to take steps tostop it, by conducting a series of events onTuesday and Wednesday, June 13–14,2000, shortly before the proposal is exam-ined at a hearing scheduled for Thursday,June 15. Part of the planned protest in-volves a vigil near the Mayor’s residence,Gracie Mansion, in which participants willlie and sleep on a City sidewalk in order toconvey symbolically the homelessnessplaintiff contends will be caused if theproposed rent increases are adopted. OnJune 8, 2000, plaintiff moved for prelimi-nary injunctive relief enjoining the Cityfrom preventing vigil participants from ly-ing or sleeping on the City sidewalk, inter-ference plaintiff anticipates because of theCity’s policy of preventing any personfrom sleeping on City sidewalks under anycircumstances, as well as its past applica-tion of this policy to persons lying andsleeping on City sidewalks as part of apolitical protest.
The City has taken the position that atotal ban on sleeping on City sidewalks isjustified by its interests in safeguardingsleeping persons from the dangers of pub-
lic places and in keeping the sidewalksclear of obstructions. The City arguesthat this ban should apply to the instantvigil, notwithstanding its concession thatthese sleeping vigil participants will nei-ther be endangered nor obstruct the side-walk. For the reasons stated more fullybelow, the Court concludes that underthese circumstances, the First Amendmentof the United States Constitution does notallow the City to prevent an orderly politi-cal protest from using public sleeping as ameans of symbolic expression. Althoughthe City maintains that such a conclusionimplies that it cannot ever regulate disor-derly public sleeping, the Court disagreesin light of the obvious and dramatic differ-ences between the forms of conduct inquestion. In granting plaintiff’s motionfor a preliminary injunction, the Court ex-presses no opinion on and erects no bar tothe City’s prosecution for disorderly con-duct of persons who are vulnerable and/orrisk creating obstructions when they sleepprone on a City sidewalk.
I. Background
The facts relevant to this dispute aresimple and undisputed. They have beenestablished by affidavits submitted by theparties, all of which were received in evi-dence at a hearing held on Friday, June 9,2000; there were no objections, and noparty sought to cross-examine the affiants,who were available in the courtroom. Theparties also stipulated to a number of factson the record. (See generally Transcriptof June 9, 2000 Hearing Before Hon. Kim-ba M. Wood in Metropolitan Council, Inc.v. Safir, 00 Civ. 4254(KMW) (‘‘Tr.’’)).
Plaintiff seeks to hold a three-part pro-test in the evening of June 13 and themorning of June 14. First, the event willbegin with a press conference between 6p.m. and 8 p.m. in Carl Schurz Park (the‘‘Park’’), which abuts Gracie Mansion.Second, at 8 p.m. participants will begin afive-hour vigil in the Park (the ‘‘Parkphase’’), which will involve persons lyingon the ground in order to convey symboli-
440 99 FEDERAL SUPPLEMENT, 2d SERIES
cally the additional homelessness thatplaintiff alleges will result from the rentincreases proposed by the Board. Thereis no dispute as to these two parts of theprotest (the press conference and the Parkphase of the vigil), both of which will beallowed pursuant to permits issued by theParks Department.1
The conflict arises from the third phaseof the protest, when plaintiff plans for nomore than twenty five vigil participants torelocate from the Park (which closes at 1a.m.) to part of a stretch of sidewalk on thewest side of East End Avenue, oppositethe Park and Gracie Mansion, and an adja-cent portion of the sidewalk along 88thStreet (the ‘‘sidewalk phase’’). Specifical-ly, the protesters will continue lying pronefrom 1 a.m. to 8 a.m. on the sidewalksadjoining the west side of East End Ave-nue north of its intersection with 88thStreet, and the north side of 88th Streetnear the intersection. Plaintiff expectsand intends that for some amount of thisperiod a substantial number of participantswill sleep. (See Tr. at 10.)
The vigil participants will lie side byside, perpendicular to the apartment build-ing on this block, covering no more thanhalf of each sidewalk’s width. The side-walk along East End Avenue is sixteenfeet wide; the sidewalk along 88th Streetis fifteen feet wide. The protesters haveagreed to occupy only 7.5 feet of eachsidewalk’s width. The protesters will thusleave clear for pedestrian use about half
the width of each sidewalk (8.5 feet ofwidth along the East End Avenue side,and 7.5 feet of width along the 88th Streetside). The length of the area to be cov-ered by the bodies will not exceed 75 feet(three feet per person). Plaintiff will notblock either of the entrances to the apart-ment building, entrances that are locatedapproximately 60 feet north of the inter-section and 170 feet to its west. Plaintiffwill regulate the conduct of vigil partici-pants by providing event marshals whowill ensure that participants stay withinthe designated space, coordinate their ac-tivities, and respond to any emergencies.During the vigil, its purpose will be com-municated by signs and printed literature.
The sidewalks in question are City side-walks outside the jurisdiction of the ParksDepartment. The City concedes that nopermit is required for a group to gatherand demonstrate on a City sidewalk, solong as amplified sound is not used and thedemonstration does not involve a parade orprocession.2 See N.Y.C. Admin. Code§§ 10–108, 10–110.
The City Police Department has an ab-solute policy of preventing persons fromlying and sleeping on public sidewalks.According to defendants’ affiant, the policeintervene ‘‘whenever a member of theforce observes an individual sleeping onthe sidewalk or other public thoroughfare’’regardless of the reason the person isthere; 3 the police then give the person a
1. At the outset of this litigation, plaintiff be-lieved that vigil participants would not bepermitted to lie in the Park and sought pre-liminary injunctive relief that would havebarred any interference with the Park phaseof the vigil. The parties have subsequentlyreached an agreement as to the Park phase,and plaintiff has withdrawn its request for aninjunction with respect to it. (See Tr. at 3.)
2. Counsel for defendants has raised the possi-bility, but is not currently contending, that thesidewalks in question could be subject to alicensing arrangement between the City andthe adjoining apartment building that differsfrom what is ordinarily considered a publicCity sidewalk. (Tr. at 28–29.) In the absenceof either evidence or a representation from
defendants that such an arrangement is actu-ally present here, the Court disregards thispossibility. In any event, it is by no meansclear that it is significant whether the side-walk’s public character rests on City title,license, or some other arrangement. SeeDenver 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 anddissenting in part).
3. The City specifically notes that it makes noexception for expressive activity, and thesleeping ban has been invoked in the past toarrest persons attempting to sleep on Citysidewalks as part of a political protest.
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choice between relocation and arrest. (Af-fidavit of Inspector Stephen H. Friedland(‘‘Friedland Aff.’’) at ¶¶ 9–10.) The Citythus imposes a ‘‘general ban on sleeping onthe City sidewalks.’’ The City enforcesthis ban without exception and without anyconsideration of a sleeping person’s intentor the actual effects of his or her conductin the particular case. (Friedland Aff.¶¶ 8–9; Tr. at 8.)
The sole asserted legal basis for theCity’s authority to impose such a ban issection 240.20[5] of the New York StatePenal Code, which reads:
A person is guilty of disorderly conductwhen, with intent to cause public incon-venience, annoyance or alarm, or reck-lessly creating a risk thereof:TTT
5. He obstructs vehicular or pedestriantraffic;TTTT
The City asserts that a blanket ban onpublic sleeping furthers the purposes ofthe statute because (1) individuals sleepingon sidewalks necessarily endanger them-selves because of their vulnerability tocrime or accidents (from, for example, carsjumping curbs and falling objects), and (2)individuals sleeping on the sidewalk ‘‘in-herently hamper free movement on andaccessibility of the sidewalk.’’ (FriedlandAff. ¶¶ 4–6.)
The City concedes that, notwithstandingits concerns about public sleeping in gen-eral, the conduct involved in this protestposes no particular danger to vigil partici-pants and no risk of obstructing the side-walk. (Tr. at 18–19, 29–33.) The Citydoes not dispute plaintiff’s position thatthe general dangers cited in the FriedlandAffidavit will not be implicated by this vigilbecause it will be overseen by protest mar-shals, and will occupy a limited portion ofsidewalk in a relatively quiet part of theCity during an especially quiet period ofthe day.4 The City candidly acknowledgesthat regardless of whether vigil partici-
pants sit, stand, or sleep on the ground, itwill have a police presence that will protectthem and prevent any undue blockage ofpedestrian passage. Based on both coun-sel’s stipulations and the evidence beforeit, the Court finds that, as planned, thevigil will not obstruct pedestrian trafficand will not subject its participants to aheightened danger of attack or accident.
II. Discussion
A. Laches
Defendants have urged the Court todeny plaintiff’s motion for a preliminaryinjunction without reaching its merits be-cause of plaintiff’s allegedly unreasonabledelay in seeking relief from the Court.The Court declines to do so.
As a preliminary matter, the question ofplaintiff’s delay is appropriately addressedunder the rubric of laches, not the irrepa-rable harm prong of the preliminary in-junction standard. Plaintiff alleges future,though imminent, deprivation of its consti-tutional rights. Accordingly, delay inseeking the injunction does not undermineplaintiff’s contention that such a depriva-tion would be irreparable, unlike a situa-tion where a plaintiff sits idly by whileirreparable harm is allegedly being suf-fered on an ongoing basis. See MillionYouth March, Inc. v. Safir, 18 F.Supp.2d334, 339–40 (S.D.N.Y.1998) (contrasting ir-reparable harm from future denial of FirstAmendment rights with irreparable harmfrom ongoing infringement of intellectualproperty rights), modified on othergrounds, 155 F.3d 124 (2d Cir.1998).
[1, 2] Laches is an equitable doctrineapplied to deny relief in the court’s discre-tion when ‘‘it is clear that a plaintiff unrea-sonably delayed in initiating an action anda defendant was prejudiced by the delay.’’Robins Island Preserv. Fund, Inc. v. Sout-hold Dev. Corp., 959 F.2d 409, 423 (2dCir.1992); accord Million Youth March,18 F.Supp.2d at 340. Here, the proposedrent increase was announced on May 8,
4. Plaintiff anticipates that few, if any, vigil participants will sleep past 6 a.m.
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and was slated for debate at a previouslyscheduled June 15 hearing. On May 15,one of plaintiff’s committees met to discussthe rent proposal, and it decided to raisethe idea of a vigil with the Executive Com-mittee, which met on May 24. The Execu-tive Committee did not select a vigil site atthat meeting, and waited until a June 1meeting to choose the site near GracieMansion. Plaintiff initiated discussionswith the City the next morning.5
Under the circumstances, plaintiffmoved with reasonable speed in its plan-ning of the vigil. Although plaintiff didnot move with maximum feasible speed,the Court sees no basis for imposing sucha requirement here, notwithstanding thefact that faster action would have assistedthe Court and defendants. The limitedtime available to adjudicate this disputestems primarily from the speed with whichthe political situation has evolved, and theCourt is disinclined to cut off plaintiff’saccess to judicial remedies when citizens’ability to protest and influence governmentaction is at stake. Cf. Million YouthMarch, 18 F.Supp.2d at 340 (rejectinglaches argument even though plaintiffwaited ten weeks to file suit after theCity’s rejection of its proposed event loca-tion).
The Court acknowledges that defen-dants have been forced to present theirarguments on a very compressed schedule,but prejudice to defendants alone, withoutfault on plaintiff’s part, is insufficient tosupport laches. Moreover, the prejudiceto defendants is lessened by the absence offactual disputes among the parties. Final-ly, the City’s authority to arrest personsfor sleeping on public sidewalks, and itsavowed policy of doing so, has long been amatter of public controversy, putting the
City on notice of the advisability of prepar-ing for a legal challenge to that policy.See, e.g., Somini Sengupta, Ten ArrestedAt Rally Against Crackdown On Home-less, N.Y. Times, Dec. 7, 1999, at B1.
For these reasons, denial of plaintiff’smotion on laches grounds is inappropriate.
B. Preliminary Injunction Standard
[3] Plaintiff seeks a preliminary in-junction preventing the City from interfer-ing with its plan to engage in what itconsiders expressive activity by lying andsleeping on a City sidewalk. Plaintiff doesnot seek issuance of a permit, nor does itseek a declaration that a statutory or regu-latory scheme is unconstitutional. Underthese circumstances, the Court construesplaintiff’s application as one for a prohibi-tory injunction that would ‘‘stay govern-mental action taken in the public interestpursuant to a statutory or regulatoryscheme.’’ See Latino Officers Ass’n v.City of New York, 196 F.3d 458, 462 (2dCir.1999) (citation omitted). Accordingly,a preliminary injunction may issue only ifplaintiff ‘‘show[s] irreparable harm in theabsence of an injunction and a likelihood ofsuccess on the merits.’’ Id. (citation omit-ted); accord Beal v. Stern, 184 F.3d 117,122 (2d Cir.1999). The issuance and scopeof any injunction is committed to theCourt’s sound discretion, taking into ac-count ‘‘all the equities of the situation,including the public interest.’’ MillionYouth March, 155 F.3d at 125.
[4] The more demanding standard of ashowing of ‘‘a ‘clear’ or ‘substantial’ likeli-hood of success’’ is inappropriate here.Such a heightened standard is appropriatewhen the injunction is mandatory ratherthan prohibitory in nature, a distinctionthat the Second Circuit has recognized is
5. Defendants suggest that they were initiallymisled that the sidewalk phase of the vigilwould occur on the east side of East EndAvenue, which is within the Parks Depart-ment’s jurisdiction and thus requires a permitfor a demonstration of this size, not the westside of East End Avenue, which is a Citysidewalk. 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 (whichit notes would be subject to Parks Departmentrules) and the sidewalk phase, and refers to‘‘an appropriate sidewalk area’’ without sug-gesting any limitation to the avenue’s eastside.
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difficult to draw with precision, see TomDoherty Assocs. v. Saban Entertainment,Inc., 60 F.3d 27, 34 (2d Cir.1995), butwhich generally entails injunctions that‘‘will alter, rather than maintain the statusquo, or will provide the movant with reliefthat cannot be undone even if the defen-dant prevails at a trial on the merits.’’Beal, 184 F.3d at 122 (internal quotationmarks and modifications omitted). TheCourt notes that a plausible argument canbe made that this injunction would provideplaintiff with relief that cannot be undone,one ground relied upon in Beal to classifyas mandatory a preliminary injunction en-joining enforcement of a park permitscheme. See also Million Youth March, 18F.Supp.2d at 339 (classifying as mandatorya preliminary injunction requiring issuanceof an event permit because ‘‘it would pro-vide plaintiff with substantially all the re-lief that it seeks’’ and because it would‘‘mandate’’ issuance of a permit). Here,however, plaintiff seeks less sweeping re-lief than in Beal: an injunction tailored toa single event, not an injunction againstgeneral enforcement of a detailed regulato-ry scheme.
Moreover, nothing in the proposed in-junction would bar the City from a futurecriminal prosecution of the vigil partici-pants. In the context of an exercise ofFirst Amendment rights, it is ‘‘deeplyetched in our law [that] a free societyprefers to punish the few who abuse rightsof speech after they break the law than tothrottle them and all others beforehand.’’Southeastern Promotions, Ltd. v. Conrad,420 U.S. 546, 559, 95 S.Ct. 1239, 43L.Ed.2d 448 (1975). Accordingly, an in-junction, although not permitting the vigilto be undone, would leave open the pre-ferred form of relief against violations of
laws limiting speech. To hold otherwisewould essentially apply the ‘‘mandatory’’label to every preliminary injunction de-signed to allow a particular expressiveevent to occur without interference, evenwhen no permit is required by law. Cf.Latino Officers Ass’n v. City of New York,No. 97 Civ. 1384(KMW), 1999 WL386753,*3 (S.D.N.Y. June 10, 1999) (apply-ing standard for prohibitory injunctions),aff’d, 196 F.3d 458, 462 (same); HousingWorks, Inc. v. Safir, No. 98 Civ. 4994(HB),1998 WL 409701, *2 (S.D.N.Y. July 21,1998) (same); United Yellow Cab DriversAss’n, Inc. v. Safir, No. 98 Civ. 3670(RPP),1998 WL 274295, *2 (S.D.N.Y. May 27,1998) (same); but cf. Tunick v. Safir, 209F.3d 67, 70 (2d Cir.2000) (opinion of Cala-bresi, J.) (merging, without discussion, thestandards for injunctions staying govern-ment action and mandatory injunctions);Million Youth March, 18 F.Supp.2d at 339(Kaplan, J.) (applying standard for manda-tory injunctions); Irish Lesbian and GayOrg. v. Giuliani, 918 F.Supp. 732, 739–40(S.D.N.Y.1996) (Koeltl, J.) (same).6
Accordingly, the Court requires thesame showing as in Latino Officers: irrep-arable harm in the absence of an injunc-tion and a likelihood of success on themerits.7 In a First Amendment case suchas this one, the issue of irreparable harmmerges with the question of success on themerits. See Latino Officers, 196 F.3d at462; Beal, 184 F.3d at 123–24.
C. The Merits of Plaintiff’s FirstAmendment Claim
[5] This case turns on the balance be-tween plaintiff’s interest in engaging inexpressive activity that is intertwined withthe specific conduct of lying and sleepingon a City sidewalk and the City’s interest
6. When the party seeking a preliminary in-junction has unreasonably delayed in initiat-ing litigation, the Court may in its discretionelect to require a stronger showing on themerits rather than denying relief altogether.See Irish Lesbian and Gay Org. v. New YorkState Bd. of Ancient Order of Hibernians, 788F.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 lach-es.
7. In any event, the Court concludes thatplaintiff is clearly likely to succeed on themerits, so the result does not turn on themandatory/prohibitory distinction.
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in preventing persons from lying andsleeping on City sidewalks. The partiesagree that the City’s policy is content-neutral. Moreover, the parties agree thatthe proposed activity of lying and sleepingon the City sidewalks has an expressivecomponent in the context of this vigil andits preceding press conference. The Courtemphasizes that this case does not involve,nor does the Court express any opinionconcerning, the broader question of wheth-er the City may prohibit lying and sleepingon public sidewalks when that conduct isnot an integral part of a large, planned,publicized protest and is not accompaniedby incidents of speech such as signs andliterature explaining the protest. SeeClark v. Community for Creative Non–Violence, 468 U.S. 288, 294, 104 S.Ct. 3065,82 L.Ed.2d 221 (1984) (holding that sym-bolic expression through conduct is pro-tected by the First Amendment when ‘‘incontext, [it] would reasonably be under-stood by the viewer to be communicative’’).
The City’s application to this vigil of itspolicy concerning sleeping on public side-walks is constitutionally permissible only ifthat policy:
1) advances a ‘‘significant governmentalinterest,’’
2) is ‘‘narrowly tailored’’ to serve thatinterest, and
3) ‘‘leave[s] open ample alternativechannels for communication.’’
Clark, 468 U.S. at 293, 104 S.Ct. 3065;accord Bery v. City of New York, 97 F.3d689, 697 (2d Cir.1996).
The City’s policy has features of both acontent-neutral time, place, and mannerrestriction on speech in a traditional publicforum, of which the City sidewalks areundoubtedly a prime example, see Loper v.New York City Police Dep’t, 999 F.2d 699,704 (2d Cir.1993), and a content-neutralregulation of conduct that incidentally bur-dens speech, see Turner Broad. Sys., Inc.
v. Federal Commun. Comm’n, 512 U.S.622, 662, 114 S.Ct. 2445, 129 L.Ed.2d 497(1994) (discussing the test derived fromO’Brien v. United States, 391 U.S. 367, 88S.Ct. 1673, 20 L.Ed.2d 672 (1968)). There‘‘is little, if any, differen[ce]’’ between thestandards applied to these two types ofrestriction on expressive activity. Ward,491 U.S. at 798, 109 S.Ct. 2746 (quotingClark, 468 U.S. at 298, 104 S.Ct. 3065).The Supreme Court has equated their re-quirements for narrowly-tailored advance-ment of a significant governmental inter-est. See Turner Broadcasting, 512 U.S. at662, 114 S.Ct. 2445.
The ‘‘ample alternative channels’’ re-quirement has not explicitly been incorpo-rated into the O’Brien test for conductregulation that burdens speech, see id. (notdiscussing availability of alternative chan-nels), but even if that requirement doesnot apply to conduct regulation burdeningspeech outside a public forum, it clearlydoes apply to such regulation in a publicforum. In Bery, for instance, the SecondCircuit considered the unavailability of‘‘ample alternative channels’’ to art sellersin the context of a City ordinance requir-ing a license for those selling anythingother than food in public places.8 There,as here, the regulation in question restrict-ed conduct (vending of non-food items)that included non-expressive conduct (forinstance, selling umbrellas) but which alsoburdened expressive activity (selling art)in a public forum. Accordingly, this caseis properly analyzed under the same stan-dard applied in Bery, the standard fortime, place, and manner restrictions onspeech in a traditional public forum. See97 F.3d at 697.
1. The City’s Interest in RegulatingSleeping on Public Sidewalks
The City puts forward two general inter-ests that it asserts are advanced by its banon sleeping on public sidewalks: (1) pro-
8. Moreover, the Bery court applied the fulltime, place, and manner test after noting thatthe district court had applied the O’Brien test
without ‘‘address[ing] the question of whetheralternative channels of expression remainedopen to appellants.’’ 97 F.3d at 693.
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tecting sleeping individuals from the dan-gers of the streets, dangers to which peo-ple are far more vulnerable when asleepthan when awake, and (2) preventingsleeping individuals from obstructing freepassage for pedestrians, something that,according to the City, sleeping persons‘‘inherently’’ do.9 (See Friedland Aff. ¶¶ 3–7.) The Court has no doubt, and plaintiffdoes not dispute, that the City has a sub-stantial interest both in protecting vulner-able persons from the dangers posed bycriminals and errant cars and in maintain-ing the free movement of pedestrian trafficon City sidewalks. See, e.g., Cox v. Loui-siana, 379 U.S. 536, 554–55, 85 S.Ct. 453,13 L.Ed.2d 471 (1965). Moreover, theCity’s policy clearly furthers these inter-ests to some extent. In order to justifyapplication of this policy to expressive con-duct, however, the complete ban on sleep-ing or lying on public sidewalks must benarrowly tailored to advance those inter-ests.
2. Narrow Tailoring
The narrow tailoring requirement doesnot obligate the City to use the ‘‘leastrestrictive or least intrusive means’’ to ad-vance its interests, but it does bar the Cityfrom ‘‘burden[ing] substantially morespeech than is necessary to further’’ thoseinterests. Ward v. Rock Against Racism,491 U.S. 781, 799, 109 S.Ct. 2746, 105L.Ed.2d 661 (1989); accord Turner Broad-casting, 512 U.S. at 662, 114 S.Ct. 2445.As the facts of this case demonstrate, acomplete ban on sleeping or lying on pub-lic sidewalks is not narrowly tailored eitherto protecting citizens from the dangers ofCity streets or to preventing sidewalk ob-struction.
The City’s complete ban—encompassingpublic sleeping in any manner on all side-walks at all times by all people as part of
any activity—is overbroad. The City ac-knowledged at oral argument that apply-ing its ban on public sleeping to this vigilfails to further its asserted interests. Thevigil is planned to occupy a limited amountof space—no more than half the width ofthe sidewalk—and to avoid obstructing anyentrances to adjacent buildings. The Cityconcedes that standing protesters occupy-ing exactly the same amount of space onthe sidewalk would not obstruct pedestriantraffic, and that it would not attempt tointerfere with such a protest. Moreover,plaintiff plans to staff the vigil with mar-shals (some of whom would be awake at alltimes) to ensure that participants, whetherawake or asleep, do not spill out of theprotest area and block the sidewalk; theCity does not dispute the effectiveness ofthis arrangement. With respect to dangerto the participants, the City concedes thatthe presence of marshals eliminates thosesafety concerns related to sleeping. Final-ly, the City acknowledges that because thisis a planned, publicized protest, it intendsto maintain a significant police presence atthe event regardless of its form, and thatthis police presence can and will protectparticipants from harm and prevent themfrom occupying excessive sidewalk space,just as the City would with a group ofstanding or sitting protesters. Indeed, theCity itself characterized as ‘‘ridiculous’’ thenotion that its general concerns about pub-lic sleeping could have any application tosleeping participants in this vigil.
The inapplicability to this event of theCity’s general concerns does not necessari-ly imply that the complete sleeping ban isoverbroad. Some harmless conduct maybe barred by a restriction that is ‘‘narrow-ly tailored,’’ given that the City need notemploy the least restrictive means to ad-dress its concerns about public sleeping.10
9. The City justifies its ban on sleeping or lyingon City sidewalks by reference to the dangersposed by sleeping individuals. The City ex-tends the ban, however, to persons who arelying on the sidewalk but awake, because theCity claims it would impose an undue burden
on police officers to determine who is awakeand who is asleep.
10. Similarly, ‘‘narrow tailoring’’ is not as-sured by the mere fact that the ban’s applica-tion to some other conduct, or even a substan-
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Here, however, the sleeping ban is over-broad because of the obvious and dramaticdifference between the conduct at whichthe ban is aimed—as defendants’ counselput it, ‘‘the normal circumstances TTT [in-volving] just intoxicated individuals thatsleep on the sidewalk or homeless personswho sleep on the sidewalk’’ (Tr. at 19–20)—and the organized, constrained pro-test attended by the media and guarded byprotest marshals and the police that is atissue here. These features that renderthe sleeping here innocuous, defendantsacknowledge, are not idiosyncratic to thisvigil but are general features of organizedpolitical protest in this city. Because thesuppression of any such protest to theextent it involves the symbolic use ofsleeping or lying on the ground is utterlyunnecessary to further the interests thatunderlie the sleeping ban, the Court con-cludes that the ban is not narrowly tailoredto the asserted interests.
3. The City’s Objection That AllowingThe Vigil Undermines Its GeneralNo–Sleeping Policy
The City contends vigorously that toprevent it from banning sleeping at thisvigil is to permit conduct that runs afoul ofa generally valid ban merely because it hasan expressive character in the particularcase. The Court disagrees. This is a nota case in which a speaker seeks an exemp-tion from a narrowly-tailored regulationsimply because he intends to violate it forpurposes of speech. Cf. Cox, 379 U.S. at554, 85 S.Ct. 453 (‘‘One would not be justi-fied in ignoring the familiar red light be-cause this was thought to be a means ofsocial protest.’’). Instead, it is a case inwhich a subset of conduct falls within theparameters of the ban and yet fails toimplicate the interests allegedly support-ing the ban; particularly troubling is that
the conduct (public sleeping) is especiallylikely to fall into this subset (unproblemat-ic public sleeping) when it has a primarilyexpressive function (such as in this pro-test).
It is this feature that distinguishes thiscase from Clark v. Community for Crea-tive Non–Violence. In Clark, the Su-preme Court held that the governmentwas not required to exempt a politicalprotest from a general ban on camping infederal parks, where ‘‘camping’’ includedsleeping. The government had issued apermit that allowed protesters againsthomelessness to erect a tent city in Lafay-ette Park and the Mall in Washington,D.C., so long as demonstrators did notsleep in the tents. See 468 U.S. at 290–92,104 S.Ct. 3065. In that case, however, theCourt emphasized that the ban on campingneeded to apply to demonstrators because‘‘[d]amage to the parks as well as theirpartial inaccessibility to other members ofthe public can as easily result from camp-ing by demonstrators as by nondemonstra-tors.’’ 468 U.S. at 298, 104 S.Ct. 3065.Because application of the ban to demon-strators generally furthered its purposes,it was not significant that in the case of theparticular protest there may have beenlittle incremental benefit to the govern-ment from banning sleep but otherwisepermitting erection of a tent city.11 See id.at 297–98, 104 S.Ct. 3065; see also Paul-sen v. Gotbaum, 982 F.2d 825, 829 (2dCir.1992) (noting that application to asmall event of a ban on leafletting andsolicitation was justified ‘‘[i]f the rule isnarrowly tailored for the events taken as awhole,’’ including far larger ones). Ac-cordingly, the ban was not overbroad, not-withstanding that it restricted the protest-ers’ attempt to communicate their messageby sleeping in public.12
tial amount of conduct, does further the City’sgeneral interests.
11. The Court also found it significant that‘‘the Park Service neither attempts to bansleeping generally nor to ban it everywhere inthe parks.’’ 468 U.S. at 295, 104 S.Ct. 3065.
12. Unlike the situation here, the ‘‘major val-ue’’ of sleeping to the demonstration in Clarkwas that it facilitated a continuous presencein the parks and the attraction of homelesspeople to the tent city, 468 U.S. at 296, 104S.Ct. 3065; here, sleeping plays a more sig-
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Here, unlike in Clark, demonstrationsinvolving lying down and sleeping on asidewalk are unlikely to pose the risks thatthe ban seeks to avoid, in light of theprecautions routinely taken by protest or-ganizers and the police regardless ofwhether an event involves sleeping. Thesame factors that in combination will makeit obvious to any passer-by or televisionviewer that vigil participants are engagedin symbolic expression of a political mes-sage concerning sleeping in the streetsalso render irrelevant the City’s concernsabout disorderly obstruction of sidewalksand vulnerability to crime and accident:the pre-vigil publicity, the signs and litera-ture present at the vigil, the presence ofmedia and the police, the proximity toGracie Mansion, the presence of awakeand alert protest marshals.
This analysis receives further supportfrom the Second Circuit’s opinion in Beryv. City of New York, in which the courtenjoined the City from enforcing againstartists its general requirement that ven-dors receive a City license before sellingtheir wares in public places. The Berycourt analyzed the licensing requirement‘‘as it relates to appellants’’ and treated itas a ‘‘prohibitive interdiction barring thedisplay and sale of visual art on the Citystreets,’’ even though the impact on visualartists was only incidental to a licensingscheme applicable to vending without re-gard to whether expression was implicat-ed. 97 F.3d at 697. Accordingly, althoughthe validity of the City’s sleeping ban‘‘need not be judged solely by reference tothe demonstration at hand,’’ Clark, 468U.S. at 296–97, 104 S.Ct. 3065, it is appro-priate to consider its impact on a particu-lar class of expressive activity.
Finally, the Court notes that it sees nodanger that an injunction concerning thisvigil will lead to the parade of horriblesenvisioned by the City. The City contendsthat if it cannot stop sleeping at this vigil,
then it cannot ‘‘under any circumstances,regulate the use of city sidewalks in amanner it deems necessary and appropri-ate to promote the free flow of pedestriantraffic, the safety of individuals who mayengage in that conduct [sleeping], and thesafety of others who live in that location orwho would go by that location.’’ (Tr. at14.) The latter question is not before theCourt and no answer to it is entailed bythis decision. Cf. Whiting v. Town ofWesterly, 942 F.2d 18, 21 (1st Cir.1991)(upholding general ban on public sleepingbut noting that ‘‘plaintiffs do not claim thattheir sleeping constituted expressive con-duct implicating their rights under thefirst amendment’’).
First and foremost, it must be empha-sized that all the Court is doing is allowingplaintiff to exercise First Amendment free-doms in the context of this vigil. The Cityhas offered no evidence that those whosleep on the sidewalks while intoxicatedand/or homeless (the instances cited by theCity) will implicate the First Amendmentat all. Although counsel for the City hasexpressed concern that any intoxicatedperson sleeping on the street can claimthat his conduct is symbolically expressive,conduct is not converted into symbolic ex-pression by intentions alone; instead, con-duct must also ‘‘reasonably be understoodby the viewer to be communicative.’’Clark, 468 U.S. at 294, 104 S.Ct. 3065; cf.Loper, 999 F.2d at 704 (analyzing whetherbegging constitutes expressive activity andconcluding that it does); Young v. NewYork City Transit Auth., 903 F.2d 146,152–54 (2d Cir.1990) (analyzing whetherbegging possesses any expressive charac-ter and implying that it does not). Declar-ing that one’s conduct is expressive doesnot make it so, and thus the City’s fearthat persons actually engaging disorderlyconduct will ‘‘be able to assert TTT thatreally what they are doing is exercising
nificant expressive role relative to other as-pects of the protest and is not primarily facili-
tative.
448 99 FEDERAL SUPPLEMENT, 2d SERIES
their rights afforded them under the FirstAmendment,’’ (Tr. at 35), is misplaced.
Second, even when public sleeping isexpressive, it is subject to reasonable time,place, and manner restrictions. A com-plete ban on all sleeping is not such areasonable restriction, but more narrowlytailored restrictions are surely possible.Cf. Bery, 97 F.3d at 697 (noting that ‘‘bothvisual and written expression may TTT beTTT restricted by regulations addressed toparticular areas of the City where publiccongestion might create physical hazardsand public chaos’’); Loper, 999 F.2d at 706(2d Cir.1993) (enjoining enforcement ofCity ordinance banning begging in publicplaces but distinguishing bans on ‘‘aggres-sive begging’’). Nothing in the Court’sdecision here suggests that the City mustpermit public sleeping under all circum-stances, or that the City must permit allpublic sleeping that has any expressivecharacter.
4. Alternative Avenues for Communi-cation
Because plaintiff is clearly likely to suc-ceed on overbreadth grounds, the Courtneed not analyze whether sufficient alter-native means of communication would beavailable to plaintiff were it barred fromincluding sleeping in the sidewalk phase ofthe vigil.
D. The Injunction Is Limited to Prevent-ing a Prior Restraint on Speech
It is important to note that plaintiffseeks, and the Court grants, a preliminaryinjunction limited to enjoining the Cityfrom preventing plaintiff from engaging inthe symbolic activity of sleeping as part ofthe planned vigil.13 The Court is not pro-hibiting the City from taking post-vigilsteps to criminally prosecute participantsfor any alleged violations of section240.20[5] of the New York Penal Code, thesole asserted statutory basis for the City’s
public sleeping ban. What the Court en-joins is only arrests of prone vigil partici-pants that cut off their protest. If theCity believes that sleeping participants inthe vigil who adhere to the protest con-straints have nonetheless ‘‘obstruct[ed] ve-hicular or pedestrian traffic’’ ‘‘with intentto cause public inconvenience, annoyanceor alarm, or [have] recklessly creat[ed] arisk’’ of the same, it is free to pursue thattheory in the criminal justice system afterthe vigil.
This limited relief enjoins only the mostpressing, and most constitutionally proble-matic, aspect of the City’s policy: itsfunction as a prior restraint on speech.Arrests, or orders to disperse, that imme-diately follow attempts by vigil partici-pants to lie and sleep would essentiallyprevent the planned expressive conduct ofan overnight vigil. See generally Tunickv. Safir, 209 F.3d 67, 92–94 (2d Cir.2000)(Sack, J., concurring in the judgment)(discussing prior restraint issue with re-gard to potential arrest of photographerand models at outset of a photo shoot);see also Carlin Commun., Inc. v. Moun-tain States Telephone and Telegraph Co.,827 F.2d 1291, 1296 (9th Cir.1987) (analyz-ing as a prior restraint termination of atelephone service after the service had re-peatedly transmitted allegedly obscenemessages); Penthouse Int’l, Ltd. v.McAuliffe, 610 F.2d 1353, 1357–59 (5thCir.1980) (analyzing as a prior restraintwarrantless arrests of magazine retailersafter they had displayed allegedly obscenematerials for sale); Admiral Theatre v.City of Chicago, 832 F.Supp. 1195, 1203–04 (N.D.Ill.1993) (analyzing as a prior re-straint arrests of nude dancers after theyhad begun allegedly obscene dancing).‘‘The essence of prior restraints are that‘they g[i]ve public officials the power todeny use of a forum in advance of actualexpression.’ ’’ Beal, 184 F.3d at 124(quoting Southeastern Promotions, Ltd. v.
13. The Complaint requests that the Court‘‘enjoin[ ] the defendants from taking anysteps that would prevent the plaintiff from
engaging in the symbolic expressive activity oflying or sleeping on the public sidewalk’’ (em-phasis added) during the planned vigil.
449METROPOLITAN COUNCIL, INC. v. SAFIRCite as 99 F.Supp.2d 438 (S.D.N.Y. 2000)
Conrad, 420 U.S. 546, 553, 95 S.Ct. 1239,43 L.Ed.2d 448 (1975)) (modification inBeal opinion). Such advance interferencewith expression may constitute a prior re-straint even when it is content-neutral.See id. (citing Forsyth County v. Nation-alist Movement, 505 U.S. 123, 130, 112S.Ct. 2395, 120 L.Ed.2d 101 (1992)).‘‘[P]rior restraints on speech and publica-tion are the most serious and least tolera-ble infringement on First Amendmentrights.’’ Id. (quoting Nebraska PressAss’n v. Stuart, 427 U.S. 539, 559, 96S.Ct. 2791, 49 L.Ed.2d 683 (1976)).
Here, as in Tunick, the City has (1)foregone use of a licensing system to regu-late demonstrations on public sidewalks,(2) ‘‘failed to adopt an ordinance thatwould make [s]eeping on public sidewalk[s]explicitly unlawful,’’ and (3) nonethelessprohibited the conduct in question by in-voking a general criminal statute that doesnot ‘‘clearly make’’ public sleeping per seunlawful. 209 F.3d at 92–93 (opinion ofSack, J.) (expressing doubt that a priorrestraint imposed by the police ‘‘is any themore permissible’’ than one imposedthrough a licensing system); see also Car-lin Communications, 827 F.2d at 1296(holding that the government may either‘‘prosecute vigorously TTT [or] establish aprior-review permit system with proce-dures that satisfy the requirements laiddown in Freedman v. Maryland, 380 U.S.51, 58–59, 85 S.Ct. 734, 13 L.Ed.2d 649
(1965)’’ but that it may not ‘‘simply closedown [the] communication forum’’). Thedisorderly conduct statute that the Cityrelies upon makes reference only to ob-structing pedestrian traffic. Although theCity has articulated a general relationshipbetween sleeping and obstructing pedestri-an traffic, it has admitted that obstructionof pedestrian traffic is not a necessaryconsequence of sleeping on a public side-walk and that, in any particular case, it willarrest people for sleeping on a sidewalkeven if they are not, in fact, obstructingit.14 But cf. People v. Pickett, 21 Misc.2d192, 193 N.Y.S.2d 953, 955 (Ct. of Spec.Sessions, Appellate Part, 1st Dep’t 1959)(‘‘Merely sleeping on a subway train doesnot, in and of itself, constitute disorderlyconductTTTT To constitute ‘disorderlyconduct’ there must be an actual or threat-ened breach of the peace.’’).15 As for theCity’s concern about sleeping persons’ vul-nerability, the statute provides no appar-ent textual basis for treating as disorderlyconduct any conduct that puts oneself atrisk.
Finally, the statute contains a clearmens rea requirement, such that even ifconduct actually does obstruct pedestriantraffic, the statute is violated only if thatconduct is done with intent, or recklessindifference to, ‘‘public inconvenience, an-noyance, or alarm.’’ Because the City con-cedes that, as planned, this vigil will not bedisorderly and will not obstruct pedestrian
14. At oral argument, defendants’ counsel sug-gested that some arrests in the past werebased on disobedience of police orders tomove to another location and/or refrain fromsleeping. See N.Y. Penal Law § 240.20[6].For present purposes, however, there is nosignificant difference between an arrest di-rectly based on sleeping on a City sidewalkand an arrest based on disobeying an ordernot to sleep there. See Wright v. State ofGeorgia, 373 U.S. 284, 291–92, 83 S.Ct. 1240,10 L.Ed.2d 349 (1963).
15. Defendants have suggested that their no-sleeping policy has already been implicitlyapproved by the New York State courts, buttheir authorities address only the propriety ofprosecutions for particular incidents in whichspeech became disorderly. These authoritiesdo not consider a general prophylactic rule
prohibiting conduct that has some tendencyto become disorderly, nor do they suggest thatapplication of the disorderly conduct statuteto expressive conduct can never be unconsti-tutional. See People v. Tichenor, 89 N.Y.2d769, 658 N.Y.S.2d 233, 680 N.E.2d 606(1997) (upholding prohibition on use of abu-sive or obscene language against facial chal-lenge and upholding conviction for disorderlyconduct arising from defendant’s instigationof a confrontation with a police officerthrough the use of obscene language); Peoplev. Turner, 48 Misc.2d 611, 265 N.Y.S.2d 841(1965) (upholding convictions for disorderlyconduct arising from defendants’ refusal toobey a police order to disperse when a ‘‘dem-onstration was interfering with pedestrianand vehicular traffic’’).
450 99 FEDERAL SUPPLEMENT, 2d SERIES
traffic, it is not obvious how vigil partici-pants could have the requisite culpablemental state.
Here, where core First Amendmentrights to political protest are at stake,where the City concedes that this vigil willnot itself cause any public disorder, andwhere the City’s authority to treat sleep-ing as per se disorderly conduct is far fromclear, the equities weigh heavily in favor ofpermitting this vigil to go forward withoutrestraint. Should the City wish to do so, itremains free to pursue its legal theory in acriminal proceeding after the protest.Both sides would then be able to test thetheory’s basis in state law, as well as itspermissibility under the federal constitu-tion, and any error on the City’s partwould not result in the unnecessaryabridgement of free speech. See Tunick,209 F.3d at 93–94 (opinion of Sack, J.)(comparing prior restraints to subsequentstate court prosecutions). An arrest thatstops the protest presents the oppositedanger: that once the event has been sty-mied, the minor disorderly conduct chargeis likely to be voluntarily dismissed, anddefendants will be left restrained in theirspeech but unable to receive any vindica-tion if such restraint was improper. Ac-cordingly, the injunction plaintiff seeks ap-propriately reflects the First Amendmentprinciple favoring post-hoc prosecutionover prior restraint. See Beal, 184 F.3d at124 (quoting Southeastern Promotions,420 U.S. at 559, 95 S.Ct. 1239.)
III. Conclusion
For the reasons stated above, the Courtconcludes that absent a preliminary injunc-tion, plaintiff will suffer irreparable harmfrom City actions that are clearly likely toviolate the First Amendment. According-ly, the Court enters the following injunc-tion.
This order concerns only plaintiff’splanned vigil on the sidewalk abutting thenorthwestern corner of the intersection ofEast End Avenue and 88th Street betweenthe hours of 1 a.m. and 8 a.m. on June 14,2000. The Court orders defendants not tointerfere with this vigil, nor with individu-
als’ participation in it, on account of partic-ipants assuming a prone position and/orsleeping, so long as the participants abideby the conditions to which plaintiff haspreviously stipulated. Those conditionsare that at all times during the vigil plain-tiff will provide at least two marshals whowill remain awake and alert and who willensure that the vigil (1) will occupy nomore than a 7.5 foot wide swath of side-walk extending from the sidewalk’s edgefurthest from the street and extending inlength no more than 75 feet, (2) will notobstruct or impede access to the buildingentrances on East End Avenue and 88thStreet, and (3) will consist of no more than25 persons.
Nothing in this order shall be construedto limit defendants’ authority to regulatethe conduct of persons sleeping in publicunder other circumstances, nor their au-thority to pursue criminal sanctionsagainst vigil participants subsequent to thevigil based on any Penal Law violations theCity alleges arise from their sleeping orlying on the sidewalk during the vigil.
SO ORDERED.
,
TUFF–N–RUMBLE MANAGEMENT,INC. d/b/a Tuff City Records,
Plaintiff,
v.
SUGARHILL MUSIC PUBLISHINGINC., Sugar Hill Records, Ltd., SugarHill Records, Inc., Sugar Hill Music,Inc., Sugar Hill Music Publishing,Ltd., Twenty Nine Black Music, andJoseph Robinson, Sr., Defendants.
No. 97 CIV. 7700 (RWS).
United States District Court,S.D. New York.
June 13, 2000.
Owner of copyright to musical compo-sition sued competitor for infringement.
1
Manhattan Sites
Castle Clinton National Monument
26 Wall Street, New York, New York 10005 Telephone (212) 825-6990
Fax (212) 668-2899
2
Information provided will be used to determine whether a permit will be issued. Completed
application must be accompanied by an application fee in the form of a cashiers check or money order
in the amount of $50.00 made payable to National Park Service. Application and administrative
charges are non-refundable. This completed application should be mailed to The National Park
Service, 26 Wall Street, New York, New York 10005, Attention: Special Park Uses.
NOTICES
Privacy Act Statement: The Privacy Act of 1974 (5 U.S.C. 552a) provides that you be furnished with
the following information in connection with information required by this application. This
information is being collected to allow the park manager to make a value judgment on whether or not
to allow the requested use. Applicants are required to provide their social security or taxpayer
3
identification number or activities subject to collection of fees by the National Park Service (31 U.S.C.
7701) Information from the application may be transferred to appropriate Federal, State, local
agencies, when relevant to civil, criminal or regulatory investigations or prosecutions.
Paperwork Reduction Act Statement): This information is being collected subject to the Paperwork
Reduction Act (44 U.S.C. 3501) to allow the park manager to make a value judgment on whether or
not to allow the requested use. This information collection is required to obtain or retain a benefit.
All applicable parts of the form must be completed. A Federal agency may not conduct or sponsor, and
a person is not required to respond to, a collection of information unless it displays a currently valid
OMB control number.
Estimated Burden Statement: Public reporting burden for this form is estimated to average 45
minutes per response including the time it takes to read, gather and maintain data, review instructions
and complete the form. Direct comments regarding this burden estimate or any aspects of this form to
the National Park Service, Special Park Uses Program Manager, 1849 C Street NW (2460),
Washington, D.C. 20240
Note that this is an application only, and does not serve as permission to conduct any use of the
park. If your request is approved, a permit containing applicable terms and conditions will be
sent to the person designated on the application. The permit must be signed by the responsible
person and returned to the park prior to the event for final approval by the Park Superintendent
or the designated personnel. The Permittee will be required to sign a Hold Harmless Clause.
Upon approval of the permit application, the following conditions are applicable to the permit
when issued. Note: (additional condition may be added depending on the nature of the activity
being requested)
1. The permittee is prohibited from giving false information; to do so will be considered a
breach of conditions and be grounds for revocation: [36 CFR 2.32(a)(3)].
2. The permittee shall exercise this privilege subject to the supervision of the Superintendent
or designee, and shall comply with all applicable Federal, State, county and municipal laws,
ordinances, regulations, codes, and the terms and conditions of this permit. Failure to do so
may result in the immediate suspension of the permitted activity or the termination of the
permit.
3. If any provision of this permit shall be found to be invalid or unenforceable, the remainder
of this permit shall not be affected and the other provisions of this permit shall be valid and
be enforced to the fullest extent permitted by law.
4. The permittee is responsible for making all necessary contacts and arrangements with other
Federal, State, and local agencies to secure required inspections, permits, licenses, etc.
5. Failure to comply with any of the terms and conditions of this permit may result in the
immediate suspension or revocation of the permit. All costs associated with clean up or
damage repairs in conjunction with a terminated permit will be the responsibility of the
permittee.
6. This permit may be revoked at the discretion of the Superintendent upon 24 hours notice, or
without notice if damage to resources or facilities occurs or is threatened, notwithstanding
any other term or condition of the permit to the contrary.
4
7. This agreement is made upon the express condition that the United States, its agents and
employees shall be free from all liabilities and claims for damages and/or suits for or by
reason of any injury, injuries, or death to any person or persons or property of any kind
whatsoever, whether to the person or property of the Permittee its agents or employees, or
third parties, from any cause or causes whatsoever while in or upon said premises or any part
thereof during the term of this agreement or occasioned by any occupancy or use of said
premises or any activity carried on by the Permittee in connection herewith, and the Permittee
hereby covenants and agrees to indemnify, defend, save and hold harmless the United States,
its agents, and employees from all liabilities, charges, expenses and costs on account of or by
reason of any such injuries, deaths, liabilities, claims, suits or losses however occurring or
damages growing out of the same.
8. Permittee agrees to carry general liability insurance against claims occasioned by the action or
omissions of the permittee, its agents and employees in carrying out the activities and
operations authorized by this permit. The policy shall be in the amount of $2,000,0000
aggregated and $1,000,000 per occurrence and underwritten by a United States company
naming the United States of America as additionally insured. The permittee agrees to
provide the Superintendent with a Certificate of Insurance with the proper endorsements
prior to the effective date of the permit.
9. Permittee agrees to deposit with the park a bond in the amount of $ 0.00 from an authorized
bonding company or in the form of cash or cash equivalent, to guarantee that all financial
obligations to the park will be met, including the restoration and rehabilitation of the permitted
area.
10. Costs incurred by the park as a result of accepting and processing the application and
managing and monitoring the permitted activity will be reimbursed by the permittee.
Administrative costs and estimated costs for activities on site must be paid when the permit
is approved. If any additional costs are incurred by the park, the permittee will be billed at
the conclusion of the permit. Should the estimated costs paid exceed the actual costs
incurred; the difference will be returned to the permittee.
11. The person named on the permit as in charge of the permitted activity on-site must have full
authority to make any decisions about the activity and must remain on-site at all times.
He/she shall be responsible for all individuals, groups, vendors, etc. involved with the
permit.
12. As a condition of acceptance of the permit by the permittee and pursuant to 41 U.S. C. 22,
“No Member of Congress shall be admitted to any share or part of any contract or
agreement made, entered into, or accepted by or on behalf of the United States, or to any
benefit to arise thereupon.”
13. Nothing herein contained shall be construed as binding the Service to expend in any one fiscal
year any sum in excess of appropriations made by Congress or administratively allocated for
the purpose of this Agreement for the fiscal year, or to involve the Service in any contract or
other obligation for the further expenditure of money in excess of such appropriations or
allocations.
14. This permit may not be transferred or assigned without the prior written consent of the
Superintendent.
5
15. The permittee shall exercise this privilege subject to the supervision of the Superintendent, and
shall comply with all applicable laws and regulations of the area. The established First
Amendment area for Castle Clinton is the northeast front entrance.
16. The permittee is prohibited from giving false information; to do so will be considered a breach
of conditions and be grounds for revocation [Re: 36 CFR 2.32(a)(4)].
17. Permittee will comply with applicable public health and sanitation standards and codes.
18. This permit may be terminated upon breach of any of the stated conditions.
19. The Permittee, in exercising the privileges granted by this permit, shall comply with the
regulations of the Department of the Interior, the National Park Service, and all Federal, State,
County and Municipal laws, ordinances, or regulations which are applicable to the area of
operations covered by this permit.
20. This permit may be revoked at the discretion of the Superintendent upon 24 hours notice, or
without notice if damage to resources or facilities occurs or is threatened, notwithstanding any
other term or condition of this permit to the contrary. Permittee will reimburse NPS for cleanup
or repair of damages required to be made by NPS staff or contractor in conjunction with
terminated permit.
21. Permit shall not be transferable to another party.
22. The Permittee will be required to reimburse the NPS for the recovery of costs incurred in
conjunction with this permit. If additional costs are incurred during the course of this permit,
the Permittee will be billed for the balance at the conclusion of the event.
23. The Permittee agrees to notify the NPS of any delays or schedule changes at least 36 hours in
advance. Should the Permittee fail to provide such advance notification, the Permittee agrees to
pay any costs incurred by the NPS anytime during the application, permitting, or operational
process, including those due to cancellation, moving, or rescheduling of the project. Such
payment will include a non-refundable charge for each staff person scheduled for the affected
activity. Such charges will, at a minimum, be the equivalent of two hours overtime for each
employee assigned.
24. No Credit will be given to the National Park Service, U.S. Department of the Interior,
Manhattan Sites, Castle Clinton National Monument.
25. No endorsement by any Federal agency shall be stated or implied. Filming of signs or fixtures
identifying any Federal agency in affiliation with the event is prohibited.
26. Permittee shall own all rights of every kind in and to all photographs and recordings made by it
in the park and shall have the right to use such photographs and/or recordings in any manner it
may desire without limitation or restriction of any kind. The permit does not grant rights
regarding the filming, photography or recording of individuals on NPS property. In addition,
rights owned by other individuals or institutions are not impacted or changed by this permit.
27. The event will be well planned and scheduled. Last minute changes will not be accommodated
unless the changes are contingent upon weather or other emergency conditions and approved by
the NPS representative in charge.
6
28. A member of the park staff will supervise the special event within the park boundaries. He or
she will have the authority to make all supervisory decisions to assure compliance with the
permit, applicable regulations, and NPS policy. The Permittee must comply with any special
instructions received from this representative. Any additional information related to the
privilege granted in this permit will be furnished upon request of the official in charge.
29. Any expenses incurred by NPS for such supervision will be borne by the Permittee but may be
waived at the discretion of the Superintendent.
30. No employee of the NPS may work for the Permittee in any capacity whatsoever while in
uniform or if directly involved in supervision of the Permittee.
31. NPS employees may not perform, or appear to perform official duties for purposes of the event
unless such performance has been approved by the NPS.
32. No personal gratuity of any nature whatsoever will be offered to any employee of the
Government in connection with the exercise of the privilege granted.
33. Government equipment cannot be loaned or rented or diverted from normal use for purposes of
the filming.
34. This permit may be used between the hours and dates stated on the face of the permit. No
activity, including arrival of vehicles and/or personnel is permitted before or after designated
hours. All personnel, equipment and vehicles must be clear of NPS property by the expiration
of the permit.
35. Nothing shall be attached to NPS facilities, structures, signs, or any other park properties and/or
equipment including event signs, and guest lists without prior approval from Park Management.
36. Digging, scraping or moving natural or cultural features is prohibited.
37. Camouflaging or removing signs, fences or posts, etc., is prohibited.
38. Use of fire or combustible materials is prohibited.
39. Permittee will comply with state laws, county ordinances, regulations, and industry practices
concerning use and/or employment of minors. Permittee will provide a complete listing of such
minors involved in the project, indicating numbers and age range.
40. A copy of this permit will be kept on site at all times and will be held by permittee. The
permittee will have the full authority to make decisions and must remain on site at all times
during the project. The permittee will be responsible for all individuals, groups, contractors,
etc., involved with the permit activities.
41. Smoking is prohibited inside the building.
42. Permittee will provide butt cans for smoking in designated areas.
43. The Permittee will comply with all safety regulations.
7
44. The permittee’s staff and/or security personnel will follow guidelines provided by a member of
the park staff for instances in dealing with park visitors.
45. Permittee’s staff will communicate with visitors in a courteous, knowledgeable and
professional manner.
46. The permittee will schedule all requests for electricity or other utilities well in advance of need.
All necessary safety precautions will be taken should generators be used.
47. All necessary safety precautions will be taken should cabling of any distance be laid.
48. First aid and personal safety are the responsibility of the Permittee.
49. In the case of any emergency, notify the New York City Police Department at Telephone #911.
50. Permittee is responsible for collecting and disposing of all trash and debris accumulated as a
result of permit activities outside of the park’s normal trash collections. Areas utilized during
and after the event must be cleared of all hazards.
a. Clean up of spills or accidents will be in accordance with 40 CFR and all applicable state
environmental quality laws regarding disposal and hazardous/industrial wastes.
b. In case of spill or accident that may involve hazardous or industrial wastes, the District
Ranger and the New York City Police must be notified immediately.
51. All trash will be removed daily by the Permittee from all locations.
52. Food may not be consumed in any historic structure unless specifically designated.
53. Glass containers are prohibited.
54. Red colored beverages or liquids are not allowed in any historic structure.
55. Use of special effects or pyrotechnics is prohibited.
56. All walkways and means of egress must remain unobstructed to allow for reasonable use by
park visitors and other pedestrians.
57. No fees may be collected, no donations solicited, no commercial activity conducted at the Park
Site and no articles offered for sale.
58. Permittee is prohibited from selling food or beverages. Only a National Park Service
contracted concessionaire is the only party officially authorized to sell food and beverages in
the park.
59. The possession, consumption or other use of dangerous, intoxicating or illegal drugs is
prohibited.
60. Permittee will be required to sign a Hold Harmless Clause if the application is approved.
NOTE: Additional condition will be added to the permit if your application is approved depending on
the activity requested.
8
ADDENDUM #1
HOLD HARMLESS CLAUSE
This Permit is made upon the express condition that the United States of America, its agents and
employees shall be free from all liabilities and claims for damages and/or suits for or by reason of any
injury to any person or property of any kind whatsoever, whether to the person of property of the
permitee or third parties, from any cause whatsoever arising from any activities conducted pursuant to
the terms of this Permit, and the permittee covenants and agrees to indemnify, defend, save, and hold
harmless the United States of America, its agents and employees from all such liabilities, expenses and
costs on account of or by reason of any injuries, deaths, liabilities, claims, suits or losses however
occurring or damages arising out of the same.
The permittee shall prior to the effective date of this agreement provide the assigned ranger with a
Certificate of Insurance evidencing that it has obtained and will maintain during the term of this
agreement Comprehensive General Liability insurance against claims occasioned by the actions or
omissions of the permittee or agents and employees in carrying out the activities and operations
authorized hereunder. Such insurance shall be in the amount commensurate with the degree of risk and
the scope and size of such activities hereunder, but in any event, the limits of liability shall not be less
than one million ($1,000,000) dollars per occurrence and two million ($2,000,000) dollars in the
aggregate. If claims reduce available insurance below the required per occurrence limits, the permittee
shall obtain additional insurance to restore the required limits. An umbrella or excess liability policy,
in addition to a Comprehensive General Liability Policy, may be used to achieve the required limits.
All liability policies shall either name the United States of America as a named insured or shall specify
that the insurance company shall have no right of subrogation against the United States and shall have
no recourse against the Government for payment of any premium or assessment.
Afternoon Sessions: Common Protest Related Criminal Charges; Common Evidentiary Resources; Legal Observer and Protest Lawyer Models
New York v. Nunez New York v. Nunez, Amicus Brief in Support of Motion to DismissMEMORANDUM OF LAW New York v. Nunez, Exhibits to Amicus Brief Citywide Privately Owned Public Space, Current Public Plaza Standards
CRIMINAL COURT OF THE CITY OF NEW YORKCOUNTY OF NEW YORK: JURY-7----------------------------------------------------------------xTHE PEOPLE OF THE STATE OF NEW YORK
- against - DECISION AND ORDER DOCKET NO.: 2011NY082981RONNIE NUNEZ,
Defendant.
----------------------------------------------------------------xMATTHEW A. SCIARRINO, JR., J.
The defendant, a “member” of the “Occupy Wall Street Movement” is charged with
Trespass (PL §140.00[5]), Disorderly Conduct (PL §240.20[6]) and Obstructing Governmental
Administration in the Second Degree (PL §195.05) as a result of the alleged incidents that
occurred on November 15, 2011 during the “eviction” of the occupiers from Zuccotti Park.
The Defendant, Ronnie Nunez now moves the Court for an order inter alia: dismissing
the accusatory instrument pursuant to Criminal Procedure Law §170.30(1)(a) and pursuant to
Criminal Procedure Law §170.30(1)(f). That motion is denied.
An accusatory instrument upon which the defendant may be held for trial “must allege
‘facts of an evidentiary character’ (CPL §100.15[3]) demonstrating reasonable cause to believe
that the defendant committed the crime charged (CPL §100.40[4][b]).” (People v. Dumas, 68
NY2d 729, 731 [1986]). Further, a valid criminal court information must contain non-hearsay
factual allegations which, if true, “establish . . . every element of the offense charged and the
defendant’s commission thereof.” (CPL §100.40[1][c]).
In determining the facial sufficiency of an accusatory instrument, the court must view the
facts in the light most favorable to the People. (People v. Contes, 60 NY2d 620, 621 [1983]).
“That other, innocent inferences could possibly be drawn from the facts is irrelevant on this
pleading stage inquiry. . . .” (People v. Deegan, 69 NY2d 976, 979 [1987]). “So long as the
factual allegations of an information give an accused notice sufficient to prepare a defense and
are adequately detailed to prevent a defendant from being tried twice for the same offense, they
should be given a fair and not overly restrictive or technical reading (citations omitted).”
(People v. Casey, 95 NY2d 354, 360 [2000].
Additionally, in making a determination as to the facial sufficiency of an accusatory
instrument, “the court is bound by the four corners of the accusatory instrument and may not
consider extraneous allegations contained in a motion to dismiss or an answer to a motion to
dismiss.” (People v. Voelker, 172 Misc2d 564, 569 [Kings Cty Crim Ct 1997], citing, People v.
Alejandro, 70 NY2d 133, 138 [1987]).
The within accusatory instrument states that on November 15, 2011, at about 5:30 a.m. in
New York County:
. . . deponent observed the defendant knowingly and unlawfully remain inside [Zuccotti Park] with a crowd of people after deponent observed and heard a NYPD Captain advise the group that they must leave the premises via bull-horn.
Deponent states that deponent is informed by Michael Fischetti, Property Manager, with Brookfield Properties that Brookfield Properties is the custodian of the park at the above location and gave the New York City Police Department permission and authority to evacuate all people from within the location. As of [November 15, 2011 at or about 5:30 a.m.] permission and authority for any individual to remain at the location was withdrawn.
Deponent states that after the above order was given deponent observed the defendant seated on the ground at the above location and the defendant had his arms locked with other persons in that the defendants’ arms were interlocked with the arms of other adjacent persons. Deponent further states that the deponent attempted to separate the defendants from each other and the additional adjacent persons and the defendants tightened their arms to prevent the deponent from removing the defendants from said other persons, in that the defendants’ arms, bent at the elbow, were moved closer and more tightly to their bodies by the defendants.
Deponent further states that the defendants’ above stated conduct prevented the deponent from conducting a lawful duty and official function, specifically a police operation and to disperse persons from the above location.
Trespass (PL § 140.05)
Pursuant to PL §140.05, “[a] person is guilty of trespass when he knowingly enters or
remains unlawfully in or upon premises.” Additionally, in defining the term “enter or remain
unlawfully,” the Penal Law explains:
A person ‘enters or remains unlawfully’ in or upon premises when he is not licensed or privileged to do so. A person who, regardless of his intent, enters or remains in or upon premises which are at the time open to the public does so with license and privilege unless he defies a lawful order not to enter or remain, personally communicated to him by the owner of such premises or other authorized person.
In order to fully discuss the issues involved some understanding of the property
involved is necessary. While the court is “bound by the four corners of the accusatory
instrument,” as to the sufficiency issue, one can not view the allegations in a complete
vacuum. Additionally, the consideration of various issues are necessary to decide the prong of
the defendant’s motion seeking a dismissal pursuant to §170.30(1)(f).
Discussion
Zuccotti Park1, located in lower Manhattan, was originally created in 1968 by United
States Steel via a City Planning special permit. The park is a Privately Owned Public Space
(“POPS”) presently owned by Brookfield Properties (“Brookfield”) and is open for public use.
Zuccotti Park, as is typical with POPS, is intended to be used by the public for passive
recreation, rather than for active recreation or sports activities and is to remain open 24 hours
a day, 7 days a week unless permission for regular closures is approved by the City Planning
Commission (“CPC”) .
On or about September 17, 2011, members of a protest movement2 that ultimately
1Zuccotti Park, formerly Liberty Plaza Park, covers approximately 33,000-square-feet in Lower Manhattan. The park is situated beside One Liberty Plaza between Broadway, Trinity Place, Liberty Street and Cedar Street. The park was heavily damaged in the September 1, 2001attack on America. The plaza has been used as the site of several events commemorating the anniversary of the attacks. After renovations in 2006, the park was renamed by its current owners, Brookfield, after company chairman John Zuccotti.2While, it is not for this court to state what the message of the OWS Movement is or is not, or whether or not it is for a good purpose, it appears that the primary message is that the working, middle and lower classes have suffered because of the financial industry’s alleged excesses and fraud. It is also apparent that the OWS Movement has clearly been successful in bringing this issue to the forefront of public debate. However, for First Amendment and
came to be known as “Occupy Wall Street”established a base of operations inside of Zuccotti
Park. In addition to using the park as a meeting and organizational space, the occupiers also
appeared to have turned the park into a campground, erecting a small number of tents and
other structures in the park. A New York Times Article entitled How Occupy Wall Street
Turned Zuccotti Park Into a Protest Camp, maps out the different areas in the park including a
sleeping section, an area for supplies, medical care, clothing and sanitation, a kitchen with
donated food, a media section a meeting area and even a library. (Bedel Saget and Archie Tse,
How Occupy Wall Street Turned Zuccotti Park Into a Protest Camp, The New York Times,
[October 5, 2011]).3 Wired described Zuccotti Park as a:
little city within the Big City, with its own library, medical center (often staffed by volunteer nurses and doctors), information center, a common kitchen dispensing thousands of meals a day, and even its own tough neighborhood- the West side. People filled the walkways and sidewalks surrounding the occupation day and night. They ate, chatted, held spontaneous teach-ins and occasionally nasty fights. (Quinn Norton, Scenes From the Occupation: Before and After the Wall Street Eviction, Wired, [November 16, 2011]).4
Whether or not, these were the conditions in existence at the times of the alleged
incidents is of course to be determined at the trials of this and other similarly situated
defendants.
In late September, Brookfield promulgated rules of conduct for Zuccotti Park, which
were apparently designed to ensure that the park would be able to be used for its intended
purpose and to prevent the existence of perceived unlawful conditions that might potentially
expose Brookfield to liability. These rules were posted at the entrance to the park.
Because occupiers were spread out across the park for twenty-four hours per day, the
owners of the park claim that they were not able to perform routine maintenance or cleaning.
On October 11, 2011, Brookfield sent a letter to Police Commissioner Raymond Kelly,
requesting his assistance in allowing Brookfield to conduct a cleaning, inspection and any
other purposes, whether the message is good or bad, agreeable or not, one’s personal views, whether for or against the movement, have no impact on this court’s decision. 3Http://www.nytimes.com/interactive/2011/10/05/nyregion/how-occupy-wall-street-turned-zuccotti-park-into-a-protest-camp.html. 4Http://www.wired.com/threatlevel/2011/11/zuccotti-before-after/
necessary maintenance in Zuccotti Park.
Towards the end of October, the New York City Fire Department (“NYFD”) concluded
that the conditions in the park created a situation in which there would be no clear path of exit
should there be a fire in the park. The NYFD determined that it was necessary to order the
removal of belongings from the Park in order to mitigate the fire hazard. Accordingly, the
Fire Commissioner issued a Violation Order to Brookfield directing that the combustible
materials inside the park be removed and all other obstructions be cleared.
On November 14, 2011, Brookfield requested the City’s assistance in evacuating the
park so it could be cleaned. Brookfield requested the help of the City and the New York City
Police Department (“NYPD”) to rectify the unsafe and unlawful conditions by temporarily
evacuating the occupiers.
On the morning of November 15, 2011, the NYPD began to clear Zuccotti Park.
NYPD Community Affairs Officers circulated through the park distributing a notice from
Brookfield, which requested that the occupiers temporarily leave the park so that it could be
cleaned. According to the People, these written announcements were also read repeatedly by
NYPD using megaphones.
The People claim that the occupiers were then given the opportunity to leave the park.
Several hours elapsed between the commencement of directives to vacate at approximately
1:00 a.m. and the time at which the NYPD began arresting those who refused to leave.
According to the People, many people, including the defendant, remained inside the park.
The People state that a significant number of those arrested, including the defendant, sat on
the ground inside the park, linked arms with each other, and actively resisted the efforts of the
police to separate and remove them. The defendant, and others, were arrested and
subsequently charged with Trespass (PL §140.05), Disorderly Conduct, (PL §240.20[6]), and
Obstruction of Governmental Administration in the Second Degree (PL §195.05).
It should also be noted that the Occupy Movement did attempt to obtain a Temporary
Restraining Order (“TRO”) to be placed back in possession of the park. In Waller v. City of
New York, (34 Misc3d 371, 374 [NY Cty SCT 2011]) the court held that:
To the extent that City law prohibits the erection of structures, the use of gas or other combustible materials, and the accumulation of garbage and human waste in public places, enforcement of the law and the owner’s rules appears reasonable to permit the owner to maintain its space in a hygienic, safe, and lawful condition, and to prevent it from being liable by the City or others for violations of law, or in tort. It also permits public access by those who live and work in the area who are the intended beneficiaries of this zoning bonus.
The court also held that the protestors had no right to a TRO enjoining the City and
Brookfield from evicting them and enforcing public and health safety laws. id
As the owner of Zuccotti Park, Brookfield must comply with the obligations imposed
on all owners of POPS by the CPC. The Plaza Standards governing Zuccotti Park state that the
park must be open and available for public use 365 days per year, Z.R. §37-60. The People’s
position is that the Plaza Standards governing Zuccotti Park do not preclude the owners from
implementing reasonable rules, or require the owners to obtain advance approval of
promulgated rules from the CPC.
The People further argue that the standards do not require that availability be offered
without limitation. It is the People’s position that the applicable Zoning Resolutions requiring
Brookfield to grant unregulated access to this space would be inconsistent with the concept of
private ownership and would leave Brookfield powerless to meet its legal obligations as the
owner of the POPS.5
In addition, Brookfield must also comply with the City’s rules and regulations. Under
this regulatory scheme, while the park is considered “public space” for purposes of zoning law,
Brookfield is singularly liable for fines and other penalties incurred for non-compliance with
obligations imposed by the City. It is the People’s position that Brookfield did not lack the
5If this case was looked at through the eyes of a civil attorney, one might argue that if there was a negligence claim clearly the owner would be sued as a landlord, with the non-delegable duty to maintain the premises in a reasonably safe condition. Therefore, the landlord had the right to have the park cleared to maintain its property. See, PJI 2:90 et. seq. and 2:91 et. seq.
authority to pursue measures necessary to ensure that Zuccotti Park was maintained in a lawful
fashion, even absent prior approval from the CPC.
It is clear that if the allegations are proven true, the conditions in Zuccotti Park at the
time of the order to vacate posed a serious hazard to the health and safety of those occupying
the park, the City’s first responders, and the surrounding community. Moreover, the conditions
also interfered with the community and general public’s ability to utilize the park for the
passive recreation activities for which it was built. Faced with these deteriorating conditions,
Brookfield temporarily revoked the license of the occupiers to remain in the park so that it
could be cleaned and various fire and other safety hazards could be addressed. The People
argue that these actions were lawful and within the scope of Brookfield’s authority. This court
agrees.
This court holds that POPS owners may establish “rules of conduct,” so long as these
restrictions on the use of the POPS are reasonable and designed to address nuisance or other
conditions that would interfere with or are inconsistent with the intended use of the POPS by
the general public. Those steps could include the temporary closing of the park for cleaning
and other remedial actions, as long as the duration of the closure is as short as reasonably
necessary to accomplish the goal.
New York City Zoning Resolution §37-50 states that:
to ensure a safe and comfortable environment for all public plaza users, a maximum of one prohibition sign or ‘Rule of Conduct’ sign may be located within the public plaza...such signs shall not prohibit behaviors that are consistent with the normal public use of the public plaza such as lingering, eating, drinking of non alcoholic beverages or gathering in small groups.
The posted rules that Brookfield promulgated in September were designed to ensure
that the park would be able to be used for its intended purpose and to prevent the existence of
unlawful conditions that might expose Brookfield Property to liability. These rules included a
prohibition on (i) camping and the erection of tents and other structures; (ii) lying down on the
ground or lying down on benches, sitting areas or walkways in a manner that unreasonably
interferes with the use of benches, sitting areas or walkways by others; (iii) the placement of
tarps or sleeping bags or other coverings on the property; and (iv) the storage or placement of
personal property on the ground, benches, sitting areas or walkways in a manner that
unreasonably interferes with the use of such areas by others.
First Amendment6
By November of 2011, Zuccotti Park had allegedly been overridden with tents and tarps.
This was prohibited in the rules promulgated by Brookfield. The defendant claims that he and
others were exercising their first amendment right by setting up the tents and tarps. This
argument is without merit. “The First Amendment does not offer absolute protection to all
speech under all circumstances and in all places.” (Clark v. Community for Creative Non-
Violence, 468 US 288, 293 [1984]). Even in public forums, reasonable restrictions on the time,
place or manner of protected speech may be imposed, provided that the restrictions are content
neutral, are narrowly tailored to serve a significant government interest, and leave open
sufficient alternative channels for communication of that information. (Id. at 294; Thomas v.
Chicago Park Dist., 534 US 316, 323 n.3 [2002]). In Waller v. City of New York, the court found
that Brookfield Properties has “the right to adopt reasonable rules that permit it to maintain a
clean, safe, publicly accessible space consonant with the responsibility it assumed to provide
public access according to law.” (Supra at 375). The court held that the petitioners had failed
to demonstrate that the rules of conduct were not reasonable time, place and manner restrictions
permitted under the First Amendment. On the contrary, the court reasoned that the rules
appeared to be “reasonable to permit the owner to maintain its space in a hygienic, safe and
lawful condition,” to forestall liability for torts or violations of law, and to permit public access
to the park by those who live and work in the area. Id. This court agrees.
There exists no basis to conclude that Brookfield’s prohibitions were applied to the
defendant and other members of Occupy Wall Street because of any disagreement with their
message. These rules applied to anyone using the park. Rules will be considered “narrowly
tailored” in the First Amendment context if they “target and eliminate no more than the exact
6Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
source of the evil [they] seek to remedy.” (Frisby v. Shultz, 487 US 474, 485 [1988]). The rules
need not be the least restrictive or intrusive available, (Ward v. Rock Against Racism, 491 US
781 [1989] but rather they must only be found to “promote a substantial government interest
that would be achieved less effectively” absent the rule. (United States v. Albertini, 472 US 675,
689 [1985]). The rules of conduct enacted by Brookfield Properties track the City laws, which
prohibit the erection of structures in public spaces, the use of generators on public property, and
the perpetuation of unhygienic conditions stemming from an accumulation of garbage and/or
human waste in public places.
In Clark v. Community for Creative Non-Violence, (468 US 288 [1984]), a group
protesting homelessness argued that a National Park Service regulation prohibiting camping in
certain parks violated the First Amendment insofar as it prohibited them from sleeping in
Lafayette Park and the Mall. The regulation banned use of the park for living accommodations.
(Id. at 290-91). The Court concluded that it was a defensible time, place and manner restriction.
(Id. at 294.) The Court reasoned that the regulation “narrowly focuse[d]” on the “substantial
interest in maintaining the parks” in an “attractive and intact condition, readily available” to the
many others who wish to use them. (Id. at 296).
While it is possible for conduct that is symbolic or expressive in nature to be considered
speech for purposes of First Amendment analysis, it is well settled that not all conduct intended
to convey a message constitutes expressive speech. (United States v. O’Brien, 391 US 367, 376
[1968]). Instead, courts use a two-pronged test to determine if conduct will be considered
expressive: first, the intent of the conduct must be to convey a particularized message; and
second, there must be a great likelihood that the message would be understood by those who
viewed it, given all of the surrounding circumstances. (Spence v. Washington, 418 US 405, 409-
410 [1974]). Under this test, erecting tents and other structures in Zuccotti Park did not qualify
as protected speech and there is no reason to conclude that camping in Zuccotti Park conveyed
any particular message.
Finally, as stated in Lubavitch Chabad House v. Chicago, (917 F2d 341, 347 [USCA 7th
Cir 1990]) the Constitution does not give individuals the right to erect structures on public
property. The court declared, “Public parks are certainly quintessential public forums where
free speech is protected, but the Constitution neither provides, nor has it ever been construed to
mandate, that any person or group be allowed to erect structures at will.”
It is clear that setting up tents and other structures would be a violation of the reasonable
rules established by Brookfield. The arrangement of tents, other structures as well as the people
and their personal belongings presented a grave safety risk in the event of a fire. The potential
for loss of life or injury as people would have to navigate over and around other people,
belongings, tents and other structures to exit the park in the event of a fire or other emergency
could have been significant. There is no doubt that if these conditions existed that the ignition of
a fire anywhere in the park would pose a grave risk of significant loss of life. This risk clearly
would be heightened by the alleged prevalence of smoking and cooking in a relatively small
space.
The actions of Brookfield were narrowly tailored to protect both itself from liability and
those at risk because of the unsafe conditions inside Zuccotti Park. A written announcement
describing what was taking place was disseminated throughout the park by police officers from
community affairs, and that announcement was read repeatedly over bullhorns by uniformed
members of the NYPD. This announcement informed occupiers that they had to temporarily
evacuate the park with all of their property so that the park could be cleared and restored for its
intended use. The announcement explicitly stated that it was being made on behalf of the owner
of the park, Brookfield as well as the City of New York. The NYPD then apparently placed
blockades and other measures to monitor and control the situation upon its re-opening, which
the People state was done later that day.
For the reasons stated above, it is clear that when the defendant was ordered by the
police to vacate the park, he was not legally entitled to refuse. By so refusing to leave after his
license to be in the park had been lawfully revoked, the defendant allegedly committed a
trespass.
Accordingly, while at this stage of the process the court is not dismissing this count
either pursuant to CPL §170.30(1) (a) or (f), it should be noted that it is reasonable to assume
that given that numerous lawyers, and countless hours have been spent on what is a fairly
complex legal issue, that the prosecution will have a difficult case to prove an actual intent to
trespass. Clearly whether or not the defendant intended to tresspass was not a simple issue due
to the many complexities of the eviction.
Disorderly Conduct (PL §240.20[6])
A person is guilty of Disorderly Conduct pursuant to P.L. §240.20(6) “. . . when, with
intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof . .
. [h]e congregates with other persons in a public place and refuses to comply with a lawful order
of the police to disperse. . . .”
The factual allegations contained in the within accusatory instrument sufficiently allege
the elements of the charge. As stated above, the “intent to cause public inconvenience,
annoyance or alarm, or recklessly creating a risk thereof” is evidenced by the alleged acts of
locking arms with others and that the defendant tightened his arms to prevent the NYPD from
removing himself and other persons thereby preventing the NYPD from enforcing it’s order to
dispurse from the location.
These factual allegations are sufficient to support the charge of P.L. §240.20(6) and the
the defendant’s motion to dismiss this count either pursuant to CPL §170.30(1) (a) or (f) is
denied.
Obstructing Governmental Administration in the Second Degree PL §195.05
A person is guilty of Obstructing Governmental Administration in the Second Degree
(PL §195.05) “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. . . .”
The charge of Obstructing Governmental Administration (PL §195.05) is facially
sufficient. The defendant attempted to prevent the police officer from performing an official
function, that being to remove the defendant from the premises. The accusatory instrument
alleges that when the NYPD Captain advised the defendant by bullhorn that he must leave the
premises, the defendant sat down in the park and interlocked arms with other persons. The
defendant is also alleged to have tightened his arms with others to prevent the deponent from
removing the defendant from the said location. Contrary to the defense assertion, it is not
necessary to allege that the removal was authorized in order for the charge to be facially
sufficient.
These words are not found in the statute and the accusatory instrument is sufficient so long as the factual allegations contained therein delineate what the obstruction and official function consist of (cf., Matter of Carlos G., 215 AD2d 165). Therefore, whether or not the removal, which constitutes the “official function” alleged to have been obstructed, was authorized need not be made part of the pleadings.
(People v. Cacsere, 185 Misc2d 92, 93 [App. Term 2nd Dept. 2000]).
The factual allegations are, therefore, sufficient to support the charge of obstructing
governmental administration in the second degree (PL §195.05). (See Cacsere, supra; People v.
Stewart, 32 Misc3d 133[A][App. Term 2nd, 11th & 13th Jud. Dists. 2011], appeal denied, 18
NY3d 861 [2011]); People v. Ballard, 28 Misc3d 129[A] [App. Term 9th & 10th Jud. Dists.
2010]).
The defendant’s motion to dismiss the charge of Obstructing Governmental
Administration in the Second Degree (PL §195.05) for facial insufficiency is, therefore, denied.
Likewise the application to dismiss for some jurisdictional or legal impediment to conviction
pursuant to CPL §170.30(1)(f) is denied.
Conclusion
While, this court recognizes that the intentions of numerous members of the OWS
Movement are laudable, that does not arguably excuse one’s obligations to work within the
lawful process allowed in our democratic society. The “99%” is clearly a majority and can
make its voices heard in a legal, organized manner if that is its wish. No matter the alleged
influence of the “1%” on the political process, at the end of the day it is the majority that
determines those that have the privilege of governing this city, state and nation.
Accordingly, it is hereby:
ORDERED, that the defendant’s motion to dismiss the charge of Trespass (PL §140.05)
for facial insufficiency or for some jurisdictional or legal impediment to conviction is denied;
and it is further
ORDERED, that the defendant’s motion to dismiss the charge of Disorderly Conduct
(P.L. §240.20[6]) for facial insufficiency or for some jurisdictional or legal impediment to
conviction is denied; and it is further
ORDERED, the defendant’s motion to dismiss the charge of Obstructing Governmental
Administration in the Second Degree (P.L. §195.05) for facial insufficiency or for some
jurisdictional or legal impediment to conviction is denied; and it is further
ORDERED, that all other aspects of the defendant’s motion not addressed are likewise
denied, including an inferred motion to dismiss the accusatory instrument in the furtherance of
justice..
This opinion shall constitute the decision and order of the Court.
Dated: April 6, 2012 _____________________New York, New York Matthew A. Sciarrino, Jr. Judge of the Criminal Court
CRIMINAL COURT OF THE CITY OF NEW YORKCOUNTY OF NEW YORK----------------------------------------------------------------------XTHE PEOPLE OF THE STATE OF NEW YORK
Docket No.2011 NY 082981
-against-
RONNIE NUNEZ
Defendant.----------------------------------------------------------------------X
MEMORANDUM OF LAW OF AMICUS CURIAENEW YORK CIVIL LIBERTIES UNION
Dated February 17, 2012 Taylor PendergrassRebecca EngelDaniel MullkoffKatherine BrombergNew York Civil Liberties UnionFoundation125 Broad Street, 19th FloorNew York, NY 10004(212) 607-3300
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES ........................................................................................................ i
INTRODUCTION ........................................................................................................................1
INTEREST OF AMICUS CURIAE...............................................................................................2
ARGUMENT................................................................................................................................3
I. OWNERS OF PRIVATELY OWNED PUBLIC SPACES DO NOT HAVETHE ABILITY TO UNILATERALLY EXCLUDE THE PUBLIC ANDMUST COMPLY WITH CONTRACTUAL, STATUTORY, ANDCONSTITUTIONAL PRINCIPLES. .....................................................................................3
A. Contractual Obligations Mandate Public Access to Privately OwnedPublic Spaces. ...................................................................................................................3
B. City Zoning Law Guarantees Public Access to Privately Owned PublicSpaces and Limits the Manner and Form in Which Public Access Can beRestricted. .........................................................................................................................4
C. Constitutional Protections Apply to Privately Owned Public Spaces. .............................7
II. BROOKFIELD LACKED LEGAL AUTHORITY TO EXCLUDE THEDEFENDANT FROM ZUCCOTTI PARK, RENDERING THEACCUSATORY INSTRUMENT DEFECTIVE....................................................................8
A. Brookfield Had No Authority to Expel Mr. Nunez from Zuccotti Park. ..........................9
B. The Accusatory Instrument Is Defective. .......................................................................11
CONCLUSION...........................................................................................................................14
APPENDIX: Index of Exhibits
ii
TABLE OF AUTHORITIES
CASES
ACLU of Nevada v. City of Las Vegas333 F.3d 1092 (9th Cir. 2003) ................................................................................................8
Citizens To End Animal Suffering And Exploitation, Inc. v. Faneuil HallMarketplace, Inc., 745 F. Supp. 65 (D. Mass. 1990) .............................................................7
First Unitarian Church of Salt Lake City v. Salt Lake City Corp.308 F.3d 1114 (10th Cir. 2002) .............................................................................................8
Hague v. CIO307 U.S. 496 (1939) ...............................................................................................................7
Lennon v. Miller66 F.3d 416 (2d Cir. 1995) ...................................................................................................13
People v. Cusamano22 A.D.3d 427 (1st Dep’t 2005) ...........................................................................................12
People v. Edmond17 Misc.3d 1130(A) (N.Y. Sup. Ct. Queens Cty. 2007).......................................................12
People v. Felix58 N.Y.2d 156 (1983) ...........................................................................................................11
People v. Ferreira10 Misc.3d 441(N.Y. City Crim. Ct. 2005) ..........................................................................13
People v. Galpern259 N.Y. 279 (1932) .............................................................................................................12
People v. Leonard62 N.Y.2d 404 (1984) ....................................................................................................11, 12
People v. Tuchinsky,100 Misc. 2d 521 (N.Y. Dist. Ct. 1979)................................................................................12
People v. Vogel116 Misc.2d 332 (2d Dep’t 1982) ........................................................................................13
Thomason v. Jernigan770 F. Supp. 1195 (E.D. Mich. 1991).....................................................................................7
iii
Venetian Casino Resort, L.L.C. v. Local Joint Exec. Bd.257 F.3d 937 (9th Cir. 2001) ..................................................................................................7
Waller v. City of New York933 N.Y.S.2d 541(N.Y. Sup. Ct. 2011) ..................................................................................8
STATUTES
Criminal Procedure Law § 170.30 ...........................................................................................14
N.Y. Penal Law §140.00....................................................................................................11, 12
N.Y. Penal Law § 195.05...................................................................................................13, 14
N.Y. Penal Law § 240.20...................................................................................................12, 13
N.Y. Stat. Law § 213 .................................................................................................................6
NYC Charter § 206 ....................................................................................................................6
NYC Rules § 1-01......................................................................................................................6
NYC Rules § 2-03......................................................................................................................6
NYC Zoning Resolution § 37-625.............................................................................................5
NYC Zoning Resolution § 37-721.............................................................................................5
NYC Zoning Resolution § 37-723.............................................................................................5
NYC Zoning Resolution § 37-726.............................................................................................5
NYC Zoning Resolution § 37-727...................................................................................5, 6, 10
NYC Zoning Resolution § 37-752.............................................................................................5
OTHER AUTHORITIES
City of New York Special Zoning Permit, CP-20222, No. 4, p.215 (March 20, 1968) ........3, 9
CPC Report, Cal. No. 21, N070497 ZRY (Sept. 19, 2007) .......................................................4
Department of City Planning Website, Privately Owned Public Space History (lastvisited Jan. 24, 2012) ..............................................................................................................3
iv
Dunlop, “A Public Realm on Private Property: New Study Identifies and RatesHundreds of Spaces that Earned Zoning Bonuses,” N.Y. TIMES (Oct. 15, 2000) ..................4
Jerold Kayden, The New York City Department of Public Planning, and the MunicipalArt Society of New York, Privately Owned Public Spaces: The New York CityExperience, p.21 (2000)..................................................................................................3, 5, 7
Minutes of the N.Y. City Council Subcommittee on Zoning and Franchises (Oct. 9,2007) .......................................................................................................................................6
1
INTRODUCTION
This case concerns the important question of whether a private property owner can
unilaterally exclude a member of the public from “privately owned public spaces” in New York
City. Mr. Ronnie Nunez, the Defendant, is alleged to have refused to leave one such public
space after the private owner sought to expel him. The private owner, however, had no lawful
authority to exclude Mr. Nunez or any other member of the public. The accusatory instrument
against Mr. Nunez is predicated on the erroneous assertion that the private owner had this
authority. The Defendant’s motion to dismiss the information should be granted.
Section I of this brief discusses the important historical and legislative context regarding
privately owned public spaces, or “POPS,” like Zuccotti Park. When private owners agree to
create POPS in exchange for valuable zoning concessions, they bargain away their right to treat
these spaces like their own private property. As a result of that bargain, private owners grant the
public a permanent license to access to these spaces, which are subject to contractual, statutory,
and constitutional protections. City zoning law makes unambiguously clear that private owners
must obtain the advance approval of the City Planning Commission (“CPC”) before enforcing
any restrictions on public access to a POPS. The law also makes clear that before the CPC can
authorize any restrictions, there must be strict compliance with important procedural protections
that are designed to protect public access.
Section II discusses the fatal deficiency in the accusatory instrument. The People assert
that the prosecution of Mr. Nunez on charges of trespass, disorderly conduct, and obstruction of
governmental administration is supported by the fact that Brookfield Properties (“Brookfield”)
withdrew its permission for the public to be in Zuccotti Park, permitting police to evacuate
Zuccotti Park and making Mr. Nunez’s continued presence there unlawful. The basis for the
2
information, however, is erroneous as a matter of law. Since the creation of Zuccotti Park in
1968, the public has had a permanent license to be present. In lieu of CPC approval, Brookfield
had no authority to exclude Mr. Nunez or anyone else from Zuccotti Park. Therefore, the
accusatory instrument against Mr. Nunez is insufficient and Defendants’ motion to dismiss the
information should be granted.
INTEREST OF AMICUS CURIAE
The New York Civil Liberties Union (“NYCLU”), an affiliate of the American Civil
Liberties Union, is a non-profit, non-partisan organization with approximately 40,000 members.
The NYCLU is committed to the protection of the fundamental right to engage in expressive
conduct in New York City’s public spaces, including Zuccotti Park. Mr. Nunez is one of many
individuals currently being prosecuted for being present in Zuccotti Park under similar
circumstances. Thus, the ruling on Mr. Nunez’s motion to dismiss may affect other similar
prosecutions in the Criminal Court of the City of New York. In addition, New York City has
hundreds of POPS that, like Zuccotti Park, are important public fora for the exercise of First
Amendment rights, particularly in New York City’s dense urban environment. Consequently,
the ruling on Mr. Nunez’s motion to dismiss may also have an impact on the right to access these
public spaces free from unilateral and unlawful actions taken by private owners. For these
reasons, the resolution of this case is important to the NYCLU and its members.
ARGUMENT
I. OWNERS OF PRIVATELY OWNED PUBLIC SPACES DO NOT HAVE THEABILITY TO UNILATERALLY EXCLUDE THE PUBLIC AND MUST COMPLYWITH CONTRACTUAL, STATUTORY, AND CONSTITUTIONAL PRINCIPLES.
Since 1961, New York City has encouraged the development of hundreds of POPS like
Zuccotti Park across the five boroughs. These spaces are created by granting zoning incentives
3
to the private developers of office and residential buildings in exchange for the creation of spaces
that are legally required to be open and accessible to the public. Currently, over 500 of these
public spaces exist throughout the City, totaling 3.5 million square feet of public space. See
Department of City Planning Website, Privately Owned Public Space History (last visited Jan.
24, 2012), attached as Exhibit A.
In exchange for these valuable zoning concessions, private owners of POPS forfeit their
traditional rights as property owners and must abide by legal constraints governing these public
spaces. As explained in a book co-authored by the New York City Department of Planning:
In return for the [zoning] incentive, the developer agrees to allocate a portion ofits lot or building to be used as a privately owned public space, construct andmaintain the space according to design standards articulated by the zoning andimplementing legal actions, and allow access to and use of the space by membersof the public . . . Although the privately owned public space continues, bydefinition, to be “privately owned,” the owner has legally ceded significant rightsassociated with its private property, including the right to exclude others, and maynot longer treat this part of its property any way it wishes. As de facto third partybeneficiaries, members of the public participate in the exchange by gaining theirown rights to this private property . . .
See Jerold Kayden, The New York City Department of Public Planning, and the Municipal Art
Society of New York, Privately Owned Public Spaces: The New York City Experience (2000) at
21, excerpts attached as Exhibit B. As a result, POPS become subject to several legal constraints
that preclude the owner from treating the public space like private property.
A. Contractual Obligations Mandate Public Access to Privately Owned Public Spaces.
The contracts creating POPS contain explicit obligations mandating that the private
owner create and maintain the POPS as a publicly open and accessible space. Often this
document is a “special zoning permit” containing provisions requiring that the POPS be
established and maintained for the public. See, e.g., City of New York Special Zoning Permit,
CP-20222, No. 4, p.215 (March 20, 1968) (requiring Zuccotti Park to be a “permanent open
4
park” for the “public benefit”), attached as Exhibit C. As noted above, the public is a direct and
intended third party beneficiary of this exchange. As a result of these contractual obligations and
the existence of the third party beneficiary relationship, the private owner of the POPS is
precluded from acting unilaterally and managing the POPS like private property.
B. City Zoning Law Guarantees Public Access to Privately Owned Public Spaces andLimits the Manner and Form in Which Public Access Can be Restricted.
Despite these clear contractual obligations, for decades private owners unlawfully treated
POPS like private property. In 1996, the City began a three-and-a-half year project to catalogue
all POPS in New York City and to determine whether owners were fulfilling their responsibility
to keep them open and accessible to the public. See Privately Owned Public Spaces at 62. The
results of the survey, published in 2000, found that approximately half of the then-existing POPS
were illegally closed or otherwise privatized. See Dunlop, “A Public Realm on Private Property:
New Study Identifies and Rates Hundreds of Spaces that Earned Zoning Bonuses,” N.Y. TIMES
(Oct. 15, 2000), attached as Exhibit D. In some cases, owners actively deterred the public from
using the spaces and wrongfully asserted that the grounds were private. Id.
Subsequent to this survey, the New York City Council enacted a sweeping and
comprehensive rezoning scheme governing POPS. When presenting the 2007 zoning resolution
to the City Council, the CPC noted that the impediments to public access identified in the
comprehensive survey motivated the revision of the “outdated and inconsistent standards in the
existing zoning text.” See CPC Report, Cal. No. 21, N070497 ZRY (Sept. 19, 2007) at 10,
excerpts attached as Exhibit E. Consequently, a primary concern of 2007 law was ensuring that
public access to POPS was not unlawfully restricted by the private owners of these spaces.
City zoning law places several substantive and procedural constraints on private owners.
With regard to the day-to-day management of POPS defined as “public plazas,” like Zuccotti
5
Park, the zoning resolution makes clear that private owners “shall not prohibit behaviors that are
consistent with the normal public use of a public plaza.” See NYC Zoning Resolution § 37-752
(2007).1 The law also mandates that public plazas conform to certain design criteria and hours of
accessibility. With regard to physical access, the zoning resolution prohibits owners from
erecting barriers when the public space is open and mandates that certain percentage of the
frontage remain unobstructed. See NYC Zoning Resolution §§ 37-721; 37-723; 37-726. With
regard to the hours of accessibility, City law requires that “public plazas shall be accessible to
the public at all times, except where the CPC has authorized a nighttime closing.” See NYC
Zoning Resolution § 37-727.
City zoning law vests the CPC with the sole authority to authorize restrictions to public
access, and mandates compliance with procedural safeguards before it can approve any
restrictions. A private owner seeking to restrict the hours of public access must first submit
documentation of the alleged “significant operational or safety issues” underlying the request.
See NYC Zoning Resolution § 37-727. The CPC is statutorily precluded from authorizing any
closing of a POPS unless the private owner provides documented evidence of “significant”
safety issues and the CPC determines, based on the submitted evidence, that the closure is
“necessary for public safety . . . as documented by the applicant.” See id. Similarly, the CPC is
statutorily precluded from authorizing any changes to a public plaza’s physical design unless the
changes will improve compliance with the public accessibility standards contained within City
zoning law. See NYC Zoning Resolution § 37-625. These requirements limit the circumstances
under which the CPC can authorize any modifications to public access and allow it to determine,
1 In addition, any other restrictions an owner seeks to impose on the public’s ability touse or access a public plaza must be “reasonable” pursuant to long established City policy. SeePrivately Owned Public Spaces at 38 (“The Department of City Planning has taken the positionthat an owner may prescribe ‘reasonable’ rules of conduct”).
6
based on a written record, whether the private owner’s request to otherwise restrict access is
adequately justified.
These procedural requirements also ensure that the beneficiaries and users of these
spaces—the public—have notice and the ability to comment before a private owner takes actions
that will exclude them from a POPS. A request by a private owner to restrict access is scheduled
for a public hearing, and anyone wishing to speak about the proposed modification is permitted
to do so at the hearing or to submit written comments. See NYC Rules §§ 1-01(a), (m), (n); 2-
03(d)(2). The borough president and community board affected by the proposed changes are
also given notice and the opportunity to comment, see NYC Charter § 206(c), further protecting
the public interest against any unjustified closings or restrictions to a POPS based solely on the
interests of the private owner.
The plain text of the zoning resolution makes clear that this administrative approval
process is mandatory and that it is the only means by which the public’s right to access a POPS
can be limited. See NYC Zoning Resolution § 37-727; cf. Comment to N.Y. Stat. Law § 213
“Exceptions” (McKinney) (“When one or more exceptions are expressly made in a statute, it is a
fair inference that the Legislature intended that no other exceptions should be attached to the act
by implication”). In addition to the plain language of the statue, the legislative history of the
2007 zoning resolution makes clear that this process is the exclusive means by which a private
owner can obtain approval to modify access to a POPS. See Minutes of the N.Y. City Council
Subcommittee on Zoning and Franchises 14:18 to 15:22 (Oct. 9, 2007) (noting the sole “out
provision” in the zoning resolution was compliance with “full process” requiring private owner
to seek City approval), excerpt attached as Exhibit F.
7
In light of the long history of private owners unlawfully restricting public access to
POPS, City zoning law requires adherence to the statutory provisions maximizing public access,
and strict compliance with the CPC approval process before any restrictions can be enacted or
enforced by the private owner. This oversight ensures that, when it comes to POPS, private
owners cannot manage these spaces as their own private property.
C. Constitutional Protections Apply to Privately Owned Public Spaces.
Finally, private owners are bound to respect the fundamental constitutional protections
that apply to POPS. Numerous courts have recognized that when privately owned land is
explicitly dedicated to public use, the space is a traditional public forum regardless of who holds
title to the property. See, e.g., Venetian Casino Resort, L.L.C. v. Local Joint Exec. Bd., 257 F.3d
937, 945 (9th Cir. 2001) (holding that where private property owner agreed to construct sidewalk
“dedicated to public use” in exchange for ability to widen road when constructing new casino,
the privately-owned section of sidewalk constituted a traditional public forum); Thomason v.
Jernigan, 770 F. Supp. 1195, 1197 (E.D. Mich. 1991) (holding that privately-owned driveway
with easement for public access was a traditional public forum); Citizens To End Animal
Suffering And Exploitation, Inc. v. Faneuil Hall Marketplace, Inc., 745 F. Supp. 65 (D. Mass.
1990) (holding that pedestrian lanes inside a marketplace owned by the City of Boston but leased
for 99 years by a private company constituted public forum because, inter alia, the City retained
an easement protecting “the public’s access and passage”); see also Hague v. CIO, 307 U.S. 496,
515 (1939) (opinion of Roberts, J.) (“Wherever the title of streets and parks may rest, they have
immemorially been held in trust for the use of the public.”); First Unitarian Church of Salt Lake
City v. Salt Lake City Corp., 308 F.3d 1114, 1123 (10th Cir. 2002) (“Because such traditional
public fora are often easements, it is evident the property here is not exempt from the First
8
Amendment merely because it is an easement rather than land to which the government holds fee
title”) (citation omitted) (holding that privately-owned street that contained a public easement
was “infused with public purposes” and thus a traditional public forum); cf. Waller v. City of
New York, 933 N.Y.S.2d 541, 544 (N.Y. Sup. Ct. 2011) (assuming arguendo that First
Amendment protections apply to Zuccotti Park).
POPS are akin to “an easement held by the public on the owner’s property.” See
Privately Owned Public Spaces at 23. As spaces legally mandated to be open and accessible for
the public’s benefit and use, POPS are subject to constitutional protections as traditional public
fora under the First Amendment. Indeed, courts have acknowledged that when a space is
explicitly designated for public use, like a POPS, it is clear that such areas are “inherently
compatible” with First Amendment activity and subject to constitutional protections as
traditional public fora. See ACLU of Nevada v. City of Las Vegas, 333 F.3d 1092, 1101 (9th Cir.
2003) (“[W]hen a property is used for open public access . . . we need not expressly consider the
compatibility of expressive activity because these uses are inherently compatible with such
activity”) (holding that privately-owned pedestrian mall was traditional public forum).
II. BROOKFIELD LACKED LEGAL AUTHORITY TO EXCLUDE THEDEFENDANT FROM ZUCCOTTI PARK, RENDERING THE ACCUSATORYINSTRUMENT DEFECTIVE.
Zuccotti Park is subject to the contractual, statutory, and constitutional protections outlined
above. Accordingly, contrary to the basis for the criminal charges asserted by the People in the
information, Brookfield Properties had no authority to unilaterally exclude the public from
Zuccotti Park. Consequently, the information is insufficient to support the charges against Mr.
Nunez and Defendant’s motion to dismiss should be granted.
9
A. Brookfield Had No Authority to Expel Mr. Nunez from Zuccotti Park.
Brookfield’s successors bargained away any right to exclude the public from Zuccotti
Park, as reflected in the “special permit” stating that Zuccotti Park would be a “permanent open
park” for the “public benefit.” See Special Zoning Permit (March 20, 1968). Accordingly, at the
time Zuccotti Park was created, permission to enter Zuccotti Park was permanently granted to all
members of the public. Afterward, no member of the public was required to obtain any
permission—implicit or explicit—to enter Zuccotti Park.
Nevertheless, on November 15, 2011, everyone was expelled from Zuccotti Park and
metal barricades were erected encircling the entire park. Subsequent access was permitted only
through two narrow gaps in the barricades patrolled by security personnel who subjected entrants
to searches of their personal belongings and other restrictive conditions, and these practices
persisted for nearly two months.2 See Letter from NYCLU to Commissioner Robert LiMandri,
NYC Department of Buildings (Jan. 9, 2012), attached as Exhibit G.
Brookfield’s actions violated the unambiguous terms of the special zoning permit, and
were patently unreasonable in violation of Department of City Planning Policy. See Footnote 1,
supra. They also violated City zoning law. In the nearly 60 days that passed between the time in
which the People allege that the park was first entered by protestors on September 17, 2011, and
the arrest of Mr. Nunez on November 15, 2011, Brookfield never received any approval from the
CPC to expel the public or to impose other restrictions on public access. For all these reasons,
Brookfield had no lawful authority to exclude Mr. Nunez from Zuccotti Park.
2 Two days after the NYCLU, the Center for Constitutional Rights, and the NationalLawyers Guild sent a letter to the Department of Buildings regarding these ongoing violations ofCity zoning law, the barricades were removed and the searches ceased.
10
The People concede that Zuccotti Park must be “open to the public and maintained for
public use 365 days a year,” but also assert that
. . . Brookfield Properties is the custodian of Zuccotti Park and at the time of thedefendant’s arrest, permission and authority for the defendant to remain inside thepark had been withdrawn . . . at the time and place of the defendant’s arrest,Brookfield Properties had transferred authority to the New York City PoliceDepartment to revoke that license by ordering the dispersal and evacuation of allindividuals in the park.
See People’s Resp. ¶¶ 9, 11. This assertion, however, is fundamentally flawed. As shown above,
at the time of the Mr. Nunez’s arrest, permission to enter Zuccotti Park was not Brookfield’s to
grant, let alone unilaterally withdraw.
Compliance with City zoning law would have protected the public interest by ensuring
public access to Zuccotti Park was not unlawfully restricted without adequate justification and
public input. Brookfield would have had to document the concerns it alleged justified the
complete expulsion of the public from the park and the substantial impediments to public access
it imposed thereafter. See NYC §37-727. The request also would have been forwarded by the
CPC to Manhattan Community Board 13 and Borough President Scott Stringer.4 Thereafter, the
request would have been the subject of a public hearing, allowing members of Community Board
1, Borough President Stringer, and any other interested member of the public to comment on the
proposed restrictions. In sum, had Brookfield complied with the law, the CPC would have had
3 Community Board #1 had previously adopted a resolution stating that the FirstAmendment rights of those in Zuccotti Park and public safety concerns were “in no waymutually exclusive, and indeed both can be accomplished.” See Resolution Re: Occupy WallStreet Protest in Zuccotti Park, Manhattan Community Board # 1 (Oct. 25 2011), attached asExhibit H.
4 Borough President Stringer issued a statement demanding a dialogue betweenBrookfield and protestors that would result in a long-term solution respecting the rights ofprotestors to remain. See Statement on Community Board Occupy Wall Street Resolution byBorough President Stringer, Senator Squadron and Congressman Nadler (Oct. 21, 2011),attached as Exhibit I.
11
the opportunity to consider the sufficiency of any documented evidence of safety concerns, and
the public’s comments, before making an independent determination as to whether any closure of
the public space was necessary and could be accomplished in accord with City zoning laws.
B. The Accusatory Instrument Is Defective.
The information alleges that Brookfield had the authority to remove Mr. Nunez from
Zuccotti Park. Since the creation of the park in 1968, however, no private owner has had the
legal authority to unilaterally withdraw permission for the public to be present in Zuccotti Park.
Brookfield Properties never requested or obtained approval from the CPC. The charges against
Mr. Nunez require are predicated on the incorrect assertion that there was lawful authority to
exclude Mr. Nunez from Zuccotti Park. Because this authority was lacking as a matter of law,
the Defendant’s motion to dismiss the information should be granted.5
To convict Mr. Nunez for trespass in violation of N.Y. Penal Law §140.00(5), the People
must be able to show that he defied a “lawful” order excluding him from Zuccotti Park. See
People v. Leonard, 62 N.Y.2d 404, 410 (1984) (finding that the prosecution has the burden of
proving that “the particular order of exclusion was lawful”). For an order to be “lawful” it must
have a “legitimate basis” and take into consideration the “nature and use of the subject property.”
5The People correctly concede that “whether [Brookfield Properties] had the lawful rightto order protestors to leave [Zuccotti] [P]ark implicates issues of First Amendment speech rightsand the right to lawful assembly.” See People’s Resp. ¶14. Zuccotti Park is indeed a traditionalpublic forum subject to constitutional protections. See infra, Section I(C). The People areincorrect, however, that these constitutional issues preclude the Court from granting Defendant’smotion to dismiss because these issues are “inappropriate, if not impossible, for determination atthe pleading stage.” Id. To the contrary, as shown in this brief, it is clear that BrookfieldProperties had no authority to unilaterally exclude Mr. Nunez or any other member of the publicfrom Zuccotti Park as a matter of contractual and statutory law. The Court should dismiss theinformation against Mr. Nunez on these grounds, and need not reach the serious constitutionalimplications of prosecuting these charges. Cf. People v. Felix, 58 N.Y.2d 156, 161 (1983) (“It ishornbook law that a court will not pass upon a constitutional question if the case can be disposedof in any other way”).
12
See id. at 411; see also People v. Cusamano, 22 A.D.3d 427, 428 (1st Dep’t 2005) (finding order
must have “legitimate basis” in order to be lawful within meaning of trespass statute). An
exclusion cannot be “lawful” under any circumstance if it conflicts with a statute that limits the
right of a private property owner to exclude persons from its property. See People v. Tuchinsky,
100 Misc. 2d 521, 522 (N.Y. Dist. Ct. 1979) (holding that defendant could not be convicted of
trespassing if landlord’s ability to exclude defendant was restricted by statute) (“The term
‘lawful’ is referable to statutes which limit the authority of property owners to make certain
orders”).
The accusatory instrument asserts that the basis for the authority to exclude Mr. Nunez
from Zuccotti Park was Brookfield’s act of withdrawing its permission for the public to be
present. As shown above, however, Brookfield did not have had any “legitimate basis” for
excluding the public and was, in fact, expressly prohibited from doing so by the terms of the
special permit and City zoning law. Brookfield’s order of exclusion was not “lawful” under
N.Y. Penal Law § 140.00(5), and this charge should be dismissed.
For the same reason, the accusatory instrument is insufficient to support the charge of
disorderly conduct for failing to disperse in violation of N.Y. Penal Law § 240.20(6). To convict
Mr. Nunez of disorderly conduct, the prosecution has the burden of demonstrating the existence
of a lawful order to disperse from Zuccotti Park. See People v. Galpern, 259 N.Y. 279, 281
(1932) (holding there can be no disorderly conduct if defendant failed to comply with “order of a
policeman . . . transcending his lawful authority”); People v. Edmond, 17 Misc.3d 1130(A), *6-7
(N.Y. Sup. Ct. Queens Cty. 2007) (dismissing disorderly conduct charge where police lacked
“legal foundation for the order to disperse”).
13
The accusatory instrument asserts that the “lawful authority” underlying the order to
disperse was that Brookfield revoked its permission for the public to be present in Zuccotti Park
and “transferred authority to the New York City Police Department to revoke that license by
ordering the dispersal and evacuation of all individuals in the park.” See People’s Resp. ¶¶ 10-
11. Brookfield Properties, however, did not have any authority to exclude the public from
Zuccotti Park, and thus it had no “authority” that it could have “revoked” and “transferred” to
police. The alleged order to disperse was made without “legal foundation” and it “transcended
[any] lawful authority” that Brookfield had to exclude Mr. Nunez from Zuccotti Park. Id. The
“legal foundation” contained in the accusatory instrument is insufficient as a matter of law to
support the charge under N.Y. Penal Law § 240.20(6), and this charge should also be dismissed.
Similarly, the information is insufficient to support the charge against Mr. Nunez for
obstructing government administration under N.Y. Penal Law § 195.05. To convict Mr. Nunez
of obstructing governmental administration the People would have to prove, inter alia, that the
“official function” being performed by NYPD officers when they ordered Mr. Nunez to leave
Zuccotti Park was “authorized by law.” See, e.g., Lennon v. Miller, 66 F.3d 416, 424 (2d Cir.
1995) (“New York Courts have . . . held that the official function being performed must be one
that was authorized by law); People v. Vogel, 116 Misc.2d 332, 332-33 (2d Dep’t 1982)
(reversing conviction where jury was not instructed that, to sustain a conviction for obstructing
governmental administration, the official function performed by police officer must be legally
authorized); People v. Ferreira, 10 Misc.3d 441, 442-43 (N.Y. City Crim. Ct. 2005) (dismissing
charge of obstructing governmental administration where defendant was under no obligation to
obey the order given by police officer). The accusatory instrument is premised on the flawed
assertion that the “legal authority” underlying the “official function” of removing Mr. Nunez
14
from Zuccotti Park was Brookfield’s revocation of permission for the public to be in Zuccotti
Park. For all the reasons stated above, this official function was not “authorized by law,” and the
accusatory instrument is insufficient as a matter of law to support the charge under N.Y. Penal
Law § 195.05.
CONCLUSION
For the reasons stated herein as well as those detailed in the Defendant’s Motion to
Dismiss, amicus curiae New York Civil Liberties Union urge the Court to grant Defendant’s
motion and to dismiss the information against Mr. Nunez pursuant to Criminal Procedure Law §
170.30(1)(a) & (f).
DATED: New YorkFeb. 17, 2012 ______________________________
Taylor PendergrassRebecca EngelDaniel MullkoffKatherine BrombergNew York Civil Liberties Union Foundation125 Broad Street, 19th FloorNew York, NY 10004(212) 607-3300
APPENDIX AIndex of Exhibits
A. Department of City Planning Website, Privately Owned Public Space History (last visitedJan. 24, 2012)
B. Jerold Kayden, The New York City Department of Public Planning, and the MunicipalArt Society of New York, Privately Owned Public Spaces: The New York CityExperience, p.21 (2000)
C. City of New York Special Zoning Permit, CP-20222, No. 4, p.215 (March 20, 1968)
D. Dunlop, “A Public Realm on Private Property: New Study Identifies and Rates Hundredsof Spaces that Earned Zoning Bonuses,” N.Y. TIMES (Oct. 15, 2000)
E. CPC Report, Cal. No. 21, N070497 ZRY (Sept. 19, 2007)
F. Minutes of the N.Y. City Council Subcommittee on Zoning and Franchises (Oct. 9, 2007)
G. Letter from NYCLU to Commissioner Robert LiMandri, NYC Department of Buildings(Jan. 9, 2012)
H. Resolution Re: Occupy Wall Street Protest in Zuccotti Park, Manhattan CommunityBoard # 1 (Oct. 25 2011)
I. Statement on Community Board Occupy Wall Street Resolution by Borough PresidentStringer, Senator Squadron and Congressman Nadler (Oct. 21, 2011)
Memorandum of Law of Amicus CuriaeN ew York Civil Liberties Union
People v. Nunez, Docket No. 2011 NY 082891
Exhibit A
Privately Owned Public Space - New York City Department of City Planning Page 1 af 4
~c
This page is located on the NYC.gov Web site athttp://www. nyc. gov/htm I/dep/htm l/priv/priv. shtm I
Projects & :> PrivatelyOwned Public Space
PRIVATELY OE
ober 17th, 2007:
On October 17, 2007, the City Counciladopted a zoning text amendment related todesign and operational standards for PrivatelyOwned Public Plazas, as modified by the CityPlanning Commission. Zoning text changes arenow in effect. View the adopted zoning textamendment.Download the Public Space symbol: In QQfformat or Adobe Illustrator format.
The Department of CityPlanning, the Municipal ArtSociety and Harvardprofessor Jerold S. Kaydenjoined forces several yearsago to develop anelectronic database withdetailed Information abouteveryone of the publicspaces created as a resultof the city's incentivezoning program. Thedatabase findings led to thepublication of "PrivatelyOwned Public Space: TheNew York CityExperience" .
This book describes theevolution of incentivezoning in New York Cityand profiles each of the503 public spaces at 320buildings that were grantedadditional floor area orrelated waivers in exchangefor providing these spaces.Copies of the book may be
http://www.nyc.gov/cgi-bin/misc/pfprinter.cgi?action=print&sitename= DCP &p= 13293443... 2/15/2012
Privately Owned Public Space - New York City Department of City Planning Page 2 of 4
ordered from Urban CenterBooks, 457 MadisonAvenue, New York, NY10022 (212 935 3959) oronline atwww.urbancenterbooks.org.
The spaces a reconcentrated inManhattan's midtown anddowntown businesscenters, although asubstantial number are ineast midtown and theupper east side. Threebuildings in Brooklyn andone in Queens haveprivately owned publicspace. Choose a communitydistrict to view maps andtables of all spaces in thedistrict:
Downtown -- ManhattanDistrict 1Greenwich Village --Manhattan District 2Clinton and the Upper WestSide -- Manhattan Districts4&7Central Midtown --Manhattan District 5East Midtown -- ManhattanDistrict 6Upper East Side --Manhattan Districts 8 & 11Downtown Brooklyn --Brooklyn District 2Long Island City -- QueensDistrict 2
The 1961 Zoning Resolutioninaugurated the incentivezoning program in NewYork City. The prog ra mencouraged privatedevelopers to providespaces for the public withinor outside their buildingsby allowing them greaterdensity in certain high-density districts. Since itsinception, the program hasproduced more than 3.5million square feet of public
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Privately Owned Public Space - New York City Department of City Planning Page 3 of 4
space in exchange foradditional building area orother considerations suchas relief from certain heightand setback restrictions.
At first, the program waslimited to a few types ofspaces like plazas andarcades, but over the yearsmany other types withdiffering standards wereadded. Experience with theearly spaces shapedstandards for the laterspaces, which were moreprecisely defined andsubject to greater publicscrutiny than the fIrst-generation spaces. Plazasbuilt to the original 1961standards account for one-third of the 503 spacessurveyed, the largest singlecategory.
The results of the programhave been mixed. Animpressive amount ofpublic space has beencreated in parts of the citywith little access to publicparks, but much of it is notof high quality. Somespaces have proved to bevaluable public resources,but others are inaccessibleor devoid of the kinds ofamenities that attractpublic use. Approximately16 percent of the spacesare actively used asregional destinations orneighborhood gatheringspaces, 21 percent areusable as brief restingplaces, 18 percent arecirculation-related, fourpercent are beingrenovated or constructed,and 41 percent are ofma rginal utility.
In response to theperceived failure of many
http://www.nyc.gov/cgi-bin/misc/pfprinter.cgi?action=print&sitename=DCP&p=13293443 ... 2/15/2012
Privately Owned Public Space - New York City Department of City Planning
of these spaces and tocommunity opposition, thetypes of spaces permittedand their locations havebeen curtailed in recentyears. And now, with thisbook and thecomprehensive informationavailable in the database,owners will be better awareof their obligations and thecity will be better able topursue enforcement whereobligations are not beingmet. Only with increasingpublic awareness, furtherrefinement of designstandards, and diligentregulatory review andenforcement can NewYorkers be assured of high-quality privately ownedpublic spaces.
Copyright 2012 The City of New York
Page 4 of 4
DCPHome I
Contact Us
http://www.nyc.gov/cgi-bin/misc/pfprinter.cgi?action=print&sitename=DCP&p=13293443 ... 2/15/2012
People v. Nunez, Docket No. 2011 NY 082891
Memorandum of Law of Amicus CuriaeNew York Civil Liberties Union
Exhibit B
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.ubliccoun-streett maysr, the.qualsaking! zon-iut incities,
The financial mechanics of incentives are conceptuallysimple. To attract developers, incentives must convey afinancial benefit sufficient at least to cover the costsincurred in providing the privately owned public space.Floor area bonuses and non-floor area incentives benefitdevelopers either by increasing their income or reducingtheir costs. For example, the floor area bonus increases abuilding's cash flow or value through rental or sale of theextra space. Frequently, the ability to develop extra spaceallows the building to be taller, and the higher-story floorsmay be rented or sold at higher rates. Height, setback, andtower coverage incentives may allow a building designthat is more in keeping with the tastes of the developer orthe market, or may decrease construction costs.
In return for the incentive, the developer agrees to allo-cate a portion of its lot or building to be used as a privatelyowned public space, construct and maintain the spaceaccording to design standards articulated by the zoningand implementing legal actions, and allow access to anduse of the space by members of the public. In effect, thedeveloper "pays" for its bonus floor area or non-floor-areaincentive by agreeing to these obligations. Although theprivately owned public space continues, by definition, tobe "privately owned." the owner has legally ceded signif-icant rights associated with its private property, includingthe right to exclude others, and may no longer treat thispart of its property any way it wishes. As de facto third-party beneficiaries, members of the public participate inthe exchange by gaining their own rights to this privateproperty, even as they endure whatever extra congestionand loss of light and air that may result from the grant ofextra floor area or other regulatory concessions.
!n the;sly ined by.onus,f pro-.celvee footlerate! to be)f pri-:iplier,.et forments; totalace toimumvelop-O, thehile aS, the;, from5 floorIr areaer thelentlaliveredblock
y COil-
INCENTIVE ZONING'SADMINISTRATIVE APPROVAL PROCESSDepending on the type of privately owned public space,legally binding approval of the incentive-far-public spacetrade has been rendered through an "as-of-right," "discre-tionary," or "certification" administrative process.P TheZoning Resolution expressly assigns the type of process tobe utilized, generally reserving the discretionary processfor public spaces thought to require the highest level ofcase-by-case review, the certification process for spacesrequiring a middle level of review, and the "as-of-right"process for spaces requiring minimal review.
Employed in the past for plazas, arcades, residentialplazas until 1996,14 and some special purpose zoning dis-trict public spaces." the "as-of-right" approval processrequires the developer to demonstrate to the City's Depart-ment of Buildings that its proposed public space and zon-ing computations meet the express requirementsannounced in the Zoning Resolution, in which case theowner is entitled as a matter of right to the floor areabonus. For an "as-of-right" administrative process to suc-
devel-bonuslationsr how)uragess, andreater"ilmurncover
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LAW 23
ceed, the rules governing the space must be clear, simple,and objective. The developer files its architectural plansdescribing the proposed public space and zoning compu-tations with the Department of Buildings, whose examin-ers conduct a ministerial review to ensure that the ruleshave been followed. These examiners are not authorizedto exercise discretion and disapprove a proposed spacebecause, in their opinion, the design could have beenmore felicitous. Once the plans are approved, the devel-oper obtains its building permit and constructs the build-ing with the bonus floor area and the public space. Thedocument recording the terms of this "as-of-right"approval is the plan or plans filed at and approved by theBuildings Department." The City Planning Commissionand other city agencies have no role in the "as-of-right"approval process. "-
In contrast, the discretionary approval process, con-ducted by the City Planning Commission and sometimesreviewed by the City Councilor, previously, the Board ofEstimate, is more substantive, judgmental, time- and staff-consuming, and consultative. Through block arcades,covered pedestrian spaces." through block gallerias, ele-vated plazas, sunken plazas, and open air concourseshave been accorded discretionary review for reasonsranging from locational concerns about whether andwhere they should situated, to law-drafting complexitiesof articulating in the abstract and in advance the criteriafor their design. For example, the City might want toreview a through block arcade to ensure that, where pos-sible, it constitutes part of a multiblock network ratherthan exists as a maverick place, or that it tru ly reducessidewalk congestion. Elevated or sunken plazas might bepermitted only where they would not detract from streetand sidewalk activity. Covered pedestrian spaces withinbuildings might need discretionary review because eachone presents unique issues of potential privatization,related to their physical connection to the building lobby,that may be difficult to resolve through generic rulesannounced in advance. Compared to the "as-of-right"process, a nuanced case-by-case review tai lored to fiteach fact pattern by an expert body, it is thought, mightbest address these and other concerns.
To obtain discretionary approval, the developer files anapplication for a special permit or authorization with theCity Planning Commission, including architectural plansthat describe the proposed public space and zoning com-putations. When special permits are sought, the require-ments of the City's Uniform Land Use Review Procedure(ULURP) attach.l" The Department of City Planningprocesses the appl ication and provides professional staffassistance to the Commission for its substantive consider-ation. Meetings between the development team of design-ers, planners, and lawyers, and the City's staff ofdesigners, planners, and lawyers are common. For specialpermits, civic organizations, professional and block asso-ciations, and members of the public participate in palt
DESIGN, OPERATION, AND ENFORCEMENT
CHAPTER 2
lAW
LEGll FRAMEWORKPrivately owned public space is law's oxymoronic inven-tion. To understand it, one must reduce the term to its twoconstituent parts. "Privately owned" refers to the legal sta-tus of the land and/or building on or in which the publicspace is located. The land and building are owned by pri-vate entities commonly associated with commercial andresidential real estate in New York City including limitedIiabi Iity campan les, Iim ited partnersh ips, cooperatives,unit owners of condominia, and individuals. As owners,they enjoy at first blush the full exercise of that bundle ofrights associated with "fee simple absolute" ownership ofprivate property, including the rights to use, transfer, andexclude, as defined by the state's common and statutoryproperty laws. To be sure, such rights are in fact notabsolute. Private property is subject, for example, to land-use and environmental laws enacted under the state's"palice power" to protect the public's health, safety,morals, anel general welfare, and to common law rules ofgood neighborliness that command that property not beused in ways that unreasonably interfere with a neighbor'suse.' Furthermore, private owners who openly invite"generai" members of the public to enter and use theirproperty might expose themselves to certain restrictionson their ability to exclude "specific" members of the pub-lic.2 What is clear, however, is that privately owned pub-lic space as defined herein would not exist wereconventional applications of private property law anelgovernment regu lation the sole determinants. Ownerswould continue to control overall access and use of theirprivate property, including the right to exclude the public,and the public as a whole could not secure rights ofaccess and use without the owner's express permission.
In defining "public space, II it is perhaps easiest to rec-ognize first what it is not. Public space is not public prop-
erty - a city park, neighborhood Iibrary, street, or side-walk - because it is not owned by the City on behalf ofthe people it represents. Nor has the City exercised itspower of eminent domain to take private property andconvert it to public space, after paying just compensationto the private owner.' Public space also does not refer toprivately owned property de facto devoted to publicaccess and use, like a department store, movie theater,museum, or restaurant. Instead, public space means aphysical place located on private property to which theowner has granted legally binding rights of access and useto members of the public, most often in return for some-thing of value from the City to the owner. Since ownershipcontinues to reside with the private owner, public spacemay be thought of as an easement held by tne-public on
-the owner's property, whose extent is defined by the City'sZoning Resolution and by implementing legal actions,
The basic law governing the design and operation ofprivately owned public space in New York City, as well asthe law enforcing public space compliance with applica-ble standards, is codified in the City's 1961 Zoning Reso-lution, as originally enacted and as amended from time totime over the past 39 years. As discussed in Chapter l,that Resolution regulates the use, size, and shape of allbuildings constructed in the City's five boroughs and laysout an administrative framework within which privatedevelopers are able to seek and gain approval for theirproposed buildings. Over the past 39 years, it also hasintroduced and defined 12 legally distinct types of pri-vately owned public space, as well as spaces geographi-cally tailored to specific needs in some of the City'sspecial purpose zoning districts, and spaces customizedfor individual buildings. While the law governing many ofthese spaces has been amended or, in some cases, fu IIyrepealed since the spaces were initially provided, the orig-inal, as well as current, law remains relevant in deterrnin-
21
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38 PRIVATELY OWNED PUBLIC SPACE
As citiesto impronomicgreaterspace. preclamaibeautifjeincreasirfor enhaWith SGare teamvative pthese ap
Appeals vari-ance or specialpermit, or a CityPlanning Com-mission specialpermit, eventhough suchspaces are notdescribed specif-,ically in the Zon-ing Resolutionitself. As such,each of thesepublic spaceshas unique legalparentage, andthe standardsgoverning theirdesign and oper-ation are foundin the Board ofStandards andAppeals resolu-tion or the CityPlanning Com-
mission report recording the action, as well as in the plansapproved as part of that action. For example, the reportissued by the City Planning Commission that announcesthe granting of the special permit may refer explicitly to thepublic space, or may state that the special permit applica-tion is approved "subject to the following conditions,"among them, that the "premises shall be developed in sizeand arrangement substantially as proposed and as indi-cated on the plan filed with this application."309 The plansubmitted by the developer will show the space, thus mak-ing the space required by the special permit approval. Forexample, the McGraw-Hili building (97) on Sixth Avenuebetween West 48th and 49th Streets provides a "sunkenplaza" that was shown on its plans filed for and approvedas part of a height and setback special permit. Furthermore,the name for a space, for example, glass-enclosed urbanplaza equlvalent'!" additional plaza.'!' or vest pocketpark,312 is taken from the text or plans recording suchactions taken by the City Planning Commission or theBoard of Standards and Appeals.
One ofpaltnerslhas beeunder thspace. Sresidentifloor arEsian ofindoor ~- that é
accessitthese sp.offeringsnviroruurban (barren,by-man;spirit un
Customized public space atOne East River Place (271)
. Until r:knowleepublic!experts,dy thisJerold ~DepartnMunici~joinedPrivate!York Chtographanalysisexamintthe city
ach ofiduallyom parategor
LEGAL STANDARDS FOR THE OPERATION OFPRIVATELY OWNED PUBUC SPACESCompared to the detailed articulation of design stan-dards for some, although not all, privately owned publicspaces, the Zoning Resolution is far less explicit and pre-cise in enumerating standards for their ongoing opera-tion. For certain spaces, the zoning stipulates an expressrequirement of maintenance including but not limited to
ri
Iitter control, care of vegetation, and oversight of per-mitted obstructions.J':' Occasionally the owner wi II havesigned a "maintenance and operating agreement" thatfurther describes the owner's obligation to keep thespace clean, the vegetation healthy, and the materials ingood repair.ê!" More generally, of course, the ownermust operate the space in ways that assure satisfaction ofthe basic access and design standards. For example, theowner must keep the space open and accessible to thepublic during required hours of access, includingunlocking and opening gates at the appropriate times.The provision of required amenities in good repair isimplicit in the legal obligations, in that an amenity inbad repair is no amenity at all. For example, drinkingfountains and water features fail to satisfy their requiredstatus if they exist but do not function. The owner mustalso ensure that amenities that move, such as seating andtables, are provided in the correct numbers. Plaquesmust be affixed to the walls as promised, and replaced ifstolen. The owner may have responsibilities for ameni-ties that inherently involve an ongoing operational com-ponent, such as a food stand, kiosk, museum, rotating artexhibit, or weekly concert series. The owner may beobi iged to make the space avai lable to private, non-profit organizations several times a year, at no rentalcharge to the group.
The Zoning Resolution is silent, however, when itcomes to the owner's "management" of use by membersof the public within the privately owned public space. Towhat extent mayan owner craft and apply its own rulesof conduct for members of the public? A number ofspaces already display signs posted by the owner listinga substantial number of forbidden activities.t" The Zon-ing Resolution requires privately owned public spaces tohost "public use," but never expressly defines what lim-its, if any, an owner may impose upon such public use.The Department of City Planning has taken the positionthat an owner may prescribe "reasonable" rules of con-duct. In determining the definition of reasonable, theDepartment has looked to the rules of conduct applica-ble in City-owned parks for general guidance.316 Thus,for example, the Department has considered a dog leashrequirement, a ban on the consumption of alcoholicbeverages, or a prohibition on sleeping in an indoorspace to be reasonable. On the other hand, suggestionsby owners that they be allowed to exclude "undesirable"persons on some basis other than improper conduct, orto set limits on the amount of time a member of the pub-lic may sit in or otherwise use a space, have been con-sidered unreasonable.ê" Other fact patterns have andwi II arise to help sharpen the notion of reasonableness.For example, mayan owner prohibit a member of thepublic from taking a photograph or speaking into a cas-sette recorder at a space? What about rules against lis-tening to a radio, playing a musical instrument, or in-lineskating? Mayan owner bar political candidates, organi-
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62 PRIVATELY OWNED PUBLIC SPACE
As c:to illnomgreaspa_~
to put the results in a form usable by members of the pub-lic, City agencies, local community boards, private non-profit civic organizations, design and planningprofessionals, and scholars, as a means of encouragingpublic space use, increasing legal compliance, andenhancing consideration of public policy issues. The part-ners agreed to combine intellectual, informational, staff,and financial resources to research all privately ownedpublic spaces, develop a conceptual framework to presentthe research, and create and maintain a centralizedrecord.I
IHOW THE RESEARCH WAS CONDUCTEDFollowing a three-and-a-half-year research project bestcharacterized as a variant of forensic accounting, the part-nership completed at the end of 1999 the task of prepar-ing the centralized record and putting it in the format of acomputer-based database. Although it is easiest todescribe the steps taken in research ing and creating therecord in a sequential fashion, it should be emphasizedthat the process was necessarily iterative.
The first step of the research project was to assemble agroup of experts for a wide-ranging scoping session aboutgoals and products. Representatives of various constituen-cies connected with the production, operation, and use ofprivately owned public space, including individuals fromcivic organizations, the private real estate community, andthe public sector, joined by professional designers andplanners, attended the session and agreed with the projectgoal of assembling a publicly accessible record.
The next step was to select research methodologies andthe ultimate format within which research results would beplaced. Research methodologies were divided into datacollection and data analysis phases. Data collectionincluded the preparation of a list of all privately ownedpublic spaces and the assembly of all legal documents andsupporting material underlying them. Data analysisinvolved the determination of the legal basis and require-ments for all 503 privately owned public spaces, based onthe assembled legal documents and supporting material.The team conceived an analytical framework, converted toa database template, to guide the space-by-space inquiry,with sections devoted to legal basis, zoning computations,required size, required hours of access, required and per-mitted amenities, compliance and enforcement history, andsources of information. The analytical framework and tem-plate are described more fully later in this chapter," Giventhe various purposes sought to be achieved by the project,the team chose the vessel of a relational computer-baseddatabase to hold the results of this work.'
The third step of the research project involved thepreparation of a preliminary comprehensive list of build-ings with privately owned public space. Some of thisinformation would come from lists compiled years earlier
~re:ficskin-aethoeLIbb
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in independent efforts undertaken by the Department ofCity Planning and Kayden." and some would be newlyprepared. The project used base map analysis, field sur-veys, and review of citywide real estate information tocast as wide a net as possible, even if it resulted in ensnar-ing buildings ultimately stricken from the list. Maps divid-ing the city into numbered blocks and lots were examinedto detect outdoor spaces located on lots with large com-mercial and residential buildings constructed since 1961.7
Field surveys placed surveyors in commercial and res-idential neighborhoods likely to have privately ownedpublic space. The surveyors walked up and down everystreet and recorded every outdoor and indoor space thatlooked like privately owned public space. In the case ofurban and residential plazas, the task would be easiest inthat the Zoning Resolution required the posting of publicspace plaques or signs at the space. In the case of "as-of-right" plazas and arcades, however, surveyors would haveto examine visual clues, such as the size and apparentdate of the host building, and the size, dimensions, loca-tion, and quality of the apparent public space, to helpwith initial identification. For example, buildings con-structed in the 1950s, or buildings four stories tall andoccupying most of the zoning lot, would not be sponsorsof privately owned publ ic space, even if a space that oth-erwise resembled privately owned public space actuallyexisted on the lot. Conversely, spaces at buildings con-structed in the late 1960s with a height of 35 stories wouldbe likely public space candidates. The project also com-pared lists of commercial and residential buildings com-piled by private real estate brokerage firms, real estateresearch organizations, and commercial real estate pub-Iishers, with the information cu lied from base map analy-sis and field surveys. Although the initial list had morethan 360 buildings, it was eventually reduced to 320.
The fourth step of the research project was the assem-bly of all documents and supporting materials necessaryto determine the legal basis and requirements for everyprivately owned public space in the city. These docu-ments divided into three categories: large-format, blue-print plans containing zoning computations and site planssubmitted in support of an application for approval by aCity agency; text-based documents recording special per-mits, authorizations, modifications, certifications, vari-ances, and other actions taken by the approval-grantingagency; and text-based documents filed by the owner,including restrictive declarations and performance bonds,affecting its private property. Although the project hadsome information collected over the years by the Depart-ment of City Planning and, to a lesser extent, by Kayden.it treated the research effort as if it were statting anew. Aspart of th is "wide net" approach, the project conductednumerous research expeditions to relevant public agen-cies and their archives to retrieve all available informationon privately owned public spaces. At the Department ofBuildings, where developers and owners file applications
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Memorandum of Law of Amicus CuriaeNew York Civil Liberties Union
People v. Nunez, Docket No. 2011 NY 082891
Exhibit C
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Tila Clti' Planning COtl11111ssionrecomlllllnds that tho nw,p undercOflslôeratloll beapproved after ndo¡f.ion of thé relß!ed map change (CP-20m).
IDONAtD H. ELLIOTT, CllairmllrNLAWRENCE M, ORTG-N V1ce-Chalr!llQl'l,HARMON H. GOLDS1'ONFA ELI OIl! c. GUGGENHEIMÉ~ WALTEl<McQUADE, nEVERLY M. SP TT, JAMES G, SWEENEY, Conn $$Iq¡~~..--ZONING-130lWUGH (11' MAtnJATTAN-
Nø, 4 (CP.Z0222)IN THE MATTER OF an .pplh:aUon dated, February 15, 1968 PlU'tUl.nt toSOCtjQII8 74·7~l "nd 14·742 of the Zoning Resolution from U. S. 8t~ Co~.UQllfor It '¡HiclaJ ~rrult for the (ollowlng ~tlthotizations()n Il deVII/()jlll'lttlt lndudln,U101'ot tlilU1 one b1øçkl
(a) 'l'a permit thc total noor area to be distributed without regard (or 2:onin¡:lot Hncs'
(b) to r:erl1llt the building: comprising the development to bo located withoutregard for Il 1 the applicable height lind setback re~ulaclOIl$1 and(c) To permit II tower to occupy Itlore than 4 per cent of the lot area Qi the
zonlllg' lot on which it Is Iocated, but Ilot more than 40 per cent Qt the tntIre site.<,The development III Oll Qtoperty bounded by aroadway¡ Ged"r'Street, ChurchStreet and CortlartdtStreet Borough of .Manhattan.
. Planll for this proposed development ¡¡re all ûle with the Cit* Plannin..q Com-rnhJion Md !nay be slleu In Room 15ÇX),2 t.nrayetto S'treet, Nework, N. •
' (On February 29, I~ Cal .. No, 3, the Coit1missfo/l /lxed March 1J, l%8 for ilhearmg:¡ Oll March 13, l ,Ca~ No. 36, the h¢fldng was dOSèd,)On motion, the Collow/ull favorable .report Was UnanImously ado~ted I
• Març l 2(J, 1968.Tt) Sl'crrlary, Bc>nrdof ES/ima!e Itom CII~ PIUllllfflf¡ Cmlllllit,doll.'On February 16, 1?§B, IL l'è~re!(!Tlh~ive of Vn ted State! Steel Cör¡¿:ratiou liItx\'!ln
,~ppliC!;ltlol1, ~ltSll¡¡tlt to SectlolÍ$ 4·741 and 74·74io£ thé Zoninff Resolut on, for a ,pcclalpermit for t ie following tmthol'Í:tatiOlÍ5 0011 develofment IOC!tI( Uff möre tMn Olle block:
(a) To Pèrtnit Il\e!otal floor area to bel Istrib(lted wit 10IIt regard: ior ~ollltli'101 lines; ,(b) To permit the buildIng comprisIng the development to. b~ 1000r¡tedwltholll
regllrd £orcetiain of the appllcabl~hei¡¡ht alld setbad( re!l'l1tlltiOtlsi and .'(~) 1'0 penttIt II tower tG occuPy more tban 40 per ecnt of the lot area of the!
tonlns, 101 011 Which it is IDefIted, but not mo~ than 4{) percellt oí Iha entire! site.
¡The' eve mment b on propetZ bôuncled by Broadway, CC!f'~r Strcetc Churclt Streetand Cortlalldt tr<!et, Horou-gh of anhannll,tThe Ptopcrt~ involved (lon5r~ts of two blocks, bot/I ltl the féa ownersh~ of the appl/.,\1lmIS; Tite nort rly blOl:k is bounded hy Xlfoadway, Cortlalldt Stt<'et, urch Strett,
'jarnt Liberty Street. The J!óutherly block is bounded by lJroad wayc Ubèrty Street, QmrchStrC"ltAAd Ced1\T Stfi!ct. ,
The lIPplicMts proPOSé toer~t a 54-slory office buildingontlie northerly brock, TheflOOr aroa wlll I'xr~cI that which would be /)etmitted rg rlght for Ihl$ block alöne inthe existing C5-5 D¡~tl'ktt btlt will Ilot eXC<lC( thI'! totaloor nrea 'pt'rllllttcd for the twohleockø as n whöle. The !t11I1dlll!,\, will t:omply wlth dill lI(ll,llcJlhto IS"I!tbackrci;t1l1ntiOll50UBro.1.cfwl'lY,Cortlal1dt Ellrt'et, and ('hunh Street. but \V1Jt (lIleroadr 011 tllC setback reWI1I'ffl
¡t'rom Lll)¿rty Street. The buildlnlt wil! cOtlstltlileA towor ()t'eURY/ill!' mOr«! thlln IlQ 4(}per cent år ili.~l\rea of th~ tlOl'ther~ block whlf¡h woulet be p'ert111tt~d by rlgohtUlldcr theIlMvîdons ot cetlon 33·45 ol the otllng Rem utiOIl, but WIll Mt exceoo 40 pcI' (:Ctlt ottile tWG block:! (IS Il whole.
iTh<l npp!i~ati'1!1wn~ ihe subject of Il public hCflrlng du!)' heló by the COll1tlllss!otlot!.
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March 13, 1968¡ ellI. No.4. • ' .No °PJXllIItIOtt to the npDlicntiol1 developed, lind the hearIng Was dosed. TIH~ npplir ...
Itroll wa$ consIdored f\lrther nt It meetIng atlhe Commisnlol1 hèlel on Untelt 20, 1%8,Cnl. N'o. ..... l I l j k '!
IThe CommissIon is of thI) Op1ll10n t jat t I S pro Cet mu es II sign fieant contriblltloltto thI;! development at tht LÖ'\I/er M'nnh¡¡ttallhusllless nrea. ~ rorn:entratll1/t all oE theoffiae development on Il .Ingle 1ltOl:k the otiló!' blOl:KCUli be €re for 1Il!!t1latc development\ fIS , lar JJd U$ef\11 lru €t TIl'è pr0fti«ld design by the I\relíltelltt,$hows lUt Opell AA scap .1'('<\ with trees, !ltt IIi lIr¢l\9!\1l the lleceSS\l.!)' lil{htll1g. ThlU
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th~ CHy, w11l gain what amount¡¡ to à !lßrmnnont O~11 rk It'¡ Ule hel\rt of cne of Ú\C _.mod dcn~ely built-up areas In the wøt1ê. t 18 nel a cause of Ull& ublic benefitth?t thll CommissIon has viewed 1111$nppllclItlon w¡l11 aver,
}Ih~ iltP..pllcal1tshave Rrollos~<l a handsome Om~i) bullúitlg of 54 stories wlth allservlee -trduct> tlg below grade, 'Xhcy have deYèlopcd 11.1\ outstanding' sit\! pla~ taking mnxlmum!\J VaJ1
1dt(\geof tbe slope down of ten teet from Broadway \0 Church Street with a ¡edes
o~ w e and &hallow ~tePll. '. 'On the c~lrse levels oí (lIe buildIng below th~ ~Iaza they will \ltovldc'!l, paBSM{è.
way tillit will Hnlí tin extenalon' of the Fulton Street ~tatlon pll\tforrrt of the IR'!',L~xlf\g1oll 'Avenne LIM tn Cortlimdt Street' wlth: tho tiMT' at Cortlamlt Street. t\IChmch Street the ~P8~bteWa.y will connect luto 1\ tunne]: under the' EMT' directly Intotho World' .'l'rade Center, l'hUI, a. dIrect, tlilk betwt:j!t\ Wo subwa~'s' IIl1tt the PA'rHstallot'l will be I\thlevet1. 'fI¡ls will re~ult III 'om~ rehe£ of the cong~5ted 5tree~ Sy$télúIJl\rtlcutarly during ,the peak mornIng and evenIng' rUm homs, ' ,. ,, Th1: owner~ of the vlIlldiÍ1g have agreed to continue cOIl$vltntlcll1 with the City Plultw
nlng Comm!uloo' h.. the <1e\niled dcvtl(l~êt1t ol 1t$ plnn9, and to make IlO s\lbstalltÎvechangea wl\ljout thBPproval oí the Commlaslön. "
Subsequent to tha hearing, the appllcatlt submitted !lIans "Z-l/' 'and"Z~2" and"Plru;a J..e\'1!lt' dated Marcil 15. 196$, $\¡ow!n« • minot' modification oí the I)tans orlp;loal1y~\lbtl1¡ttcd. TI1~ C0(11mlßsioil doe$ not consider theRe plllns to constHllte a substal1t!vech"oge. '. 'As a. condition fot' th~ conaidcra:tiot'\ of this application by the Commission, the toi-lowlllr mInimum re<¡ulret11cnts nrc fmitid tQ be Sl\tisfied, In accontancc'l with Section7+74 of the ZOfIlng ~e$ol\lti(in t . '
• (1\) T~ ~olilng tota ¢om[lrl~¡ng tho $iro ~or the development Inclttde land Inmore than one bl~k{ and are deSIgm.t¢d Ily thclrownel: as, Il 51teall of whieh is to!Je developed Il~ il un ti '
(b) The totat lot I\rea of tlla zonIng lots c<X\1prlslng the site la· !tOt less th~n60,000 sQuar¢ feet¡ IIndc(lch tonIng lot' QCcnpios an entité block I
. (e), 'l'he tot "t'ta of ¡\tl)' zoning lot to be ocwpied b~ II building having \'florethnll th~ \\ll\x!II\Um noorarea pertt1!tted 1\5 1\ matter of' right is 110t less thnn 40,000squarc£~t l ¡tid, .
(cl) Each ~ontng lot withIn thcdèvelópmcllt has ti re¡:¡ulnr or II.pproximlltetyregula!' ,hape, and for II df¡¡tante of lit lellst 190 feet .Is dIrectly across the ~trect'from the otiter l1:oohlg' lot Inc1u(ted hl Ihé tkvelopmcllt. :As 1\ result oE !lIvc~tigatlóll Imd sludy, the CommissIon 'h~ det~nnlntd titat the
º-rop'owd <tc;lvel?pn10tltCOl1íOrlilS with the find!(lB'~ rèqu!red IlnMr ·Section 74q42 o~ theZonftlg Rt!SölitMn, 1\$ fo\1ow& I " . .
(a) 'rhl\( the cllstr1butlon of !tOOl' area atld locatio!l or the b\\Îldlng wî1l resultla better site ,phu1Illnl1 ~Ild beuer architectural re1ationshl¡l$ of the. bui!cllng ulld opetttpaces to adjacent streets lind surroul\dlrtg development' !Ind wlll thus helle fit beththe,l1cl¥hl1orhoocl lIm\ thèCily M Il whole¡ , .
, (b}' Tha.t the di5trllint!on oi Ilopr a,rea ntld IDeation of Ihe builditlf( WII! Mtunduly. Increl\$\':, the bulk of ~he buil<1nnl 11\ tiny olla blOCK or \In(hl1~ ~b$truct ac~es~of !i¡¡\'It I\lldlllr, to l]lC detrl\tI'I!t1t of tfie <X1cupants ot' \Iser~ oí bUIldIngt tn nearbyblocll$ or of V~O\lIf.lUSlI1g dtu puhlte streets i lind
(cl Allhougb the tower will occupy more thrlt'! 40 per cent of Ihu lot aren of{h.,~onlni! lot 'on whIch It la located, at leMt S() per cent of the' entire sHe wH! b~ ~dl\vetopc(t aa Il j:J~~~ , .', C01\s<quent!y, ~Cotilm¡ß5ton ~\lproves the np¡¡licatloll, sllhJect to tIle C011dltlol\~
emlmerated In the followIng rC$I;l!nthm t . , " .ResQlved By the CI~ PhUlIIIlljf Coromîilalon that the npplkß.tlol1 dated Februl!.ty
15, 1968. witl. plt\n$ èll!ltled "Service Level" atll\ "'ColIcourS(! Le\'el" dated Fehf\ll\l'rt l%8¡ lild \lIIIns "Z.t." HZ·Z' I\l\d "Pt[¡,u Levéi" lInted Ml\fQh 1$, l%B,ol UtllteilStatet Stt!cl 1Córw.I'l\~ion for 1\ $pedat ~rm¡t tor the fo1towin&, Illlthoriz!lt¡OII~otl Ildevelopment tncluding mora than all!! block': . "
(t\) To ~rtl\lt tnll tötaltlool' atea to b¢ distributed without reg~rd tör ~oning',lot 1inel:i . ' , .
(b) 'to permit tite buildIng cømprMt1!1' the development to 'be locllte<! Wi\OOlltregard for «Irlaln oí the Il{>P lca.blche!ght ;tlld s~thd'¡ re~utatloll81 al1d
(o) To ptrmlt It towot, to OCCM?t'more thM .ro Pet cent ot the lotlt!"ell ofthé zonhi, löt on whIch It I, tóCàt('Í~~t not mote dtän MI ~r ceut ol the entirt
. ß\tl!¡ fot .. development on' {It<)JlÓrt.y boutIde<l' by Broadwlw. ~r Street, Chum.Strw. and Cortlándt Síreot, Jloro..."h of 'Manl»lttaf1, be arid hèl'eby la tlp¡ir0v,edt
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217 March 20, l%8
" Wf$l!a!llt9, StctiooJ+74'Cll. t!lÇZorl!ri$,lt~ç;lliti~,-8ïï1íJé~UÍ)t!i~rg~liïW!tiii' èo.i;o':,~c' 'illtlooss ' , '"c,'::: ,_-' , ........ _.. _~ "
~ " 1. 'rhe .\1fetnls" shall ~ devct~ in ~lzc I'\m! 1lt't'2JllIetnent $Ub~tMt!;úI)'U prOjX!kd &ud j/,S Itldlc¡téd on the plans iiled with thlll lI!>plicl¡.tlotil2. The dçvelopment tlWl comply wIth .U :lWllc¡¡ble provisioua olZoninll RC501uf¡~ except flir Ihe tl1<XlificatlollS hct<!ln grnt1ted;
,3. No çeryifjCl\tCl o{ liCQupal1C,y IO(' the pr~ed officctowet sball ~,js$ueduntd theexutmll bUlldlnlr ;¡,~ 13~ Broadway $hall ho reduced to 1:\ otJ(!,seorybuUdlng with n\e(:h¡~ penthOUt~ 125 Broadw¡y, u w roo\l1le<4 must b¢demo.tlshed wIthin aix '(6) monthi after United States, Steel Corporation or!ta SllcceS$ors of ;¡.sslgns Qb!::¡jf» exclusive possession of 135 Uniadway lUId InnG event Inter than JUlJeSO, 1980. ..
Any ccrtllic¡¡tc Qf OCcupancy for the propo$cd office tower shall hé limitedto ä maximum floor arta of 1,&»,562 $£.Iuare feet M long ilS the preunt three-atory building at 1J9 'Broadway continuel to 5iàñ4 (ltl addltlon to the OlllHWry
IbuJldill!.\' witti ll1¢challlcat pet¡thou$e Ilt 136, Ilroadw,liiy), 139 Broadway must ~de:molJ$hcd no later than Juno JO, :l972, to be I'ep!:wéd with % E ace inac.::ordnnce with the telltative plul! entitled "P¡a~a Level" dl\t~¡tiled with thlil\ppHca!ÎOtI of Unlt~ Stât~ Stee! Corpomtion,
lAtter the, tOlat demolition I)i 135 BrOlldway and 139DroadMiY, tile southerly~~d-Wc¡!6dd~v~toI=!1tr~~::'IV,hat .i,~"!l,(¡W, TctnplcStreet.. Wtl¡"'he, ~'C"C!, O e to us "" '
-~ • o ill dmg or o cr stl'Ucture 1\000e the plaza grado will ever boem-ted Oll the south~lJ' bloclc of tite! devclojm1tntlucludlnS what bl!oW 'rempleStreet without 1.11C prior COltS<lnt of tnC' City Planning CommIssion and tileBoard oí Estlmat~
5,. The rretn¡s(ls shall be developed, by tho appl/Cltnt$ to Improve the $outh.er!y blo<:k Q the deyelo..\ll\1ent including what is 'now Temple Street (whon ietI'title to Templo S~rtet iJ ohtailled OJ' Unitcrl Statet Stee Corporation) &1 Ilau with tf I In and vin Illld atin $ulMtatltlally
Ul aCeor' e WIth the ton tat vt flan, ent t e '1\%:\ ve, ed M~c/¡ 15,I %8, tiled with the I\j)plicntrorJ (¡ United Stnt¢$ St~el C.:lrjlOratlOlI.
6. The Rppllcanh shall COllstruct, II paS$~gelVa:v Ul1der the BuildlllS' frOlnits e.ast!!rlyproperty lino tQ Its \'testerly property. Hne ~ set forth In plat\.$ Ofltile with the COllilnl$slon In acçorûance wltll the plans elltltllld "COllCOUr&e 14vellfo.à!ld "SèM"i~e Lcvel,H dated Februar.)' 1,1%8 Iilea with the application di Unite4S~teS Stelfl CorporatiOll, .
¡ 7. 'l'he apeelaI ~rmit ltetcln approved $hal! 'ilot tl\ke effecl ulltIl tile relatedelty mäl' challges (CP 2ö2Z8 and CP 20229), whIch are t!1OsubJeçt oí sep.iltaterepor~ du.ted March 20, 1968, Cal. NOll. 2 and 3, rcspeetlvely, are ¡¡pproved bi'
' the Board of Estimate togeIner with sultabla agreelllentbetweeu the City flndthe devëlo,P.et5, whIch ~gl'Céruellt shall be t~oo.rdcd, t'lm whh the Innd.!\1ld bmc!
'al1 5UC~S1or. and assIgns to Ullited States Steel ColJloratlon,'l'he nbove rœolu~on, duly adopted by the City Plaunlng CommIssion on March 2.0
11968 Oil. :N'(), 4, together wIth Il COllY oí Ule applicatIon 'lUIdpians of the proposoobuilditl¡t arc herewith filed with Ute Secretary oi th~ &ard of Eslinmte pur~uatlt toSection 74-10 ot the Zonlns ResolutJ()Il, ,
DONALD H. ELLIOTT~OllÛt1I1a~ LAWR&NCE M" ORTON', Vlce.ChaJrmll..ll,HArtMON U, GOLDSTON EtJrNuR C, Gl)GGENHEtMER, WALTER Mc.QUADE, BEVERLY M, SPA '1\ JAMES G, SWEENEY. Commis!1oneu,
""""'"'-On motioll, the Commission adjourned at 9,40 a, ru, to meet Wednesday, MarchtJ, 1968, Ilt 1(l~. !ti" iu Room 16, City Hall Mnl1hattan,
SALVA'fORE c. GAGLIARDO, Acting Se¡:retar;v.
-------, ----... - .. - -_._-
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People v. Nunez, Docket No. 2011 NY 082891
Memorandum of Law of Amicus CuriaeNew York Civil Liberties Union
Exhibit D
A Public Realm on Private Property; New study identifies and rates hundreds of spaces th... Page 1 of 3
~b!1;~!1\ut!ol'k ¡¡¡,mc¡,; Archives
A Public Realm on Private Property; New study identifies and rates hundreds of spacesthat earned zoning bonuses.By DAVID W. DUNLAPPublished: October 15, 2000
THERE is a realm of public space in New York Citymore than 80 acres in extent -- greater, that is, than Battery Park, Carl Schurz Park,Morningside Park and Tompkins Square Park combined -- of which the public knows almost nothing.
The city paid for this space through a 39-year-old incentive program that has permitted developers who furnished plazas, arcades, walkways andatriums to build 16 million square feet more floor area than would ordinarily have been allowed. That is roughly seven Empire State Buildingsabove and beyond normal zoning limits.
But no methodical records were kept of the diverse, dispersed public spaces that resulted. So while community groups struggled over this ill-kempt plaza or that padlocked arcade, no one had a comprehensive inventory of privately owned public space: where it was, what it was, whoowned it, how they had benefited, what amenities were required, how many are actually offered and whether the space was being kept trulypublic.
That is about to change. A book analyzing everyone of the city's 503 privately owned public spaces at 320 buildings in Manhattan, Brooklyn andQueens is to be published Friday. It rates all the spaces. Fifteen were found to be of such high quality (what the book terms destination spaces)that they draw visitors from across the city, while 66 neighborhood spaces attract people from the community. But 207 marginal spaces, to usethe authors' words, are poorly enough designed or maintained that they actually deter the public from using them.
The study, by Jerold S. Kayden of Harvard University, the City Planning Department and the Municipal Art Society, involved three and a halfyears offield surveys and what Mr. Kayden called "forensic accounting," reconstructing a broken trail of approvals, permits and agreements. Ithas already made news with its conclusion that more than half the spaces have failed in some way.
The Giuliani administration has announced an enforcement effort including three civil lawsuits against the owners of public spaces that cityofficials believe have been illegally stripped of amenities, illegally closed to the public or illegally annexed by commercial interests.
A more enduring consequence ofthe study, however, is likely to be its enumeration of a1l3,584,034 square feet of privately owned public space.In essence, it opens New Yorkers' eyes to the amenities to which they are entitled and informs landlords oftheir obligations. The book, "PrivatelyOwned Public Space: The New York City Experience" (John Wiley & Sons), will later be supplemented with a database on the planning agency'sWeb site.
What makes this census of so much potential use to open-space advocates is that it casts light on many public areas that, by design ormaintenance, are not self-evident. It is almost impossible to demand unimpeded access or to enforce requirements for amenities like seating,plantings, drinking fountains and bicycle racks when neither citizens nor city officials know that a space is designated for public use in the firstplace.
Frequently, there are no signs to say the public is welcome. Sometimes, owners or tenants implicitly assert that spaces are private by installingdoors, gates, fences and barricades, or by allowing restaurants and stores to take over areas set a,sidefor the public, a phenomenon that Mr.Kayden, an associate professor in the Harvard Graduate School of Design, describes as "cafe creep."
Few New Yorkers, for example, realize that the four-story limestone-clad atrium in the Henri Bendel store at 712 Fifth Avenue, between 55th and56th Streets, is technically part of a "permanent passageway," 2,100 square feet of public space that extends to the midblock lobby of theadjoining office tower. This particular space did not yield a development bonus but was required under the terms of a special permit granted tothe project.
The new study states that the Fifth Avenue atrium "at all times shall be restricted to unobstructed lobby use and may not be used for any retailsales activity." However, on Wednesday, six tables, eight chairs and eight stools were set up in the atrium for demonstrating Laura Merciercosmetics. A representative of Laura Mercier in the store said that no selling was done in the atrium, only brief makeovers for customersinterested in sampling products.
But the book calls it a "commercial takeover." And Kent L. Barwick, president of the Municipal Alt Society, said the problem recurs. "WhatBendel keeps doing is wrong," he said. "They're bringing the department store into the temple. That activity diminishes the grandeur of thatspace."
Also at issue is the ability of visitors to view the Lalique windows that date to 1910, when the landmark building was a Coty perfumery, AnthonyHebron, a spokesman for the Limited Inc., which owns Bendel, said the company was committed to assuring "continued public viewing access,"although he acknowledged that "there have been some times when a little ofthe space was briefly occupied." The Lalique windows are beingrefurbished, he said.
Bendel is scarcely alone in appropriating open space for its own use. In one instance, the city government itself has done so.
http://www.nytimes.com/2000/1 0/15/realestate/public- realm -private-property -new-study -i. .. 2/1512012
A Public Realm on Private Property; New study identifies and rates hundreds of spaces th... Page 2 of 3
"It stands as a perfect example of the lack of information that existed and of the value of the book," said David Karnovsky, counsel to theplanning department.
Along the Washington Street facade of the 40 Rector Street office building, a sliver of plaza --really no more than a wide place in the sidewalk--has been taken over by a one-story scooter shed for the Police Department Downtown Center. It was built in cooperation with the Alliance forDowntown New York, which manages the lower Manhattan business improvement district.
"Neither I nor, indeed, anyone here had any idea that this little area was a bonused plaza," said Carl Weisbrod, president ofthe Alliance, in an e-mail message. In its days as a restaurant, he said, the space was hidden from the street by a high fence.
"The building owner suggested that we use this area for the First Precinct scooters and we were only too happy to do so," Mr. Weisbrod said. "Infact, one might say that the area is more public now than at any time in the recent past."
Joseph B. Rose, director of the planning agency and chairman ofthe City Planning Commission, noted that the police substation proposal hadgone through public review, even though no one involved realized at the time that it was being built on 795 square feet of bonus-generatingspace.
Another public space that eludes recognition is the midblock plaza behind the Westvaco Building, 299 Park Avenue, from 48th to 49th Street. Itlooks like the driveway that nearby signs declare it to be. Gates at either end declare: "Not a Walkway."
BUT according to the survey, this "Private Driveway" is in fact palt of a 15,313-square-foot plaza around the building that generated adevelopment bonus of 153,130 square feet for Fishel' Brothers, which built and still owns the towel'. The midblock palt of the plaza is roughly7,000 square feet. At a bonus rate of 10 square feet of floor area for every square foot of plaza, that would mean it accounted for 70,000 squarefeet of office space, Ol' almost three floors in the 42-story building.
The survey reports statements from the owner that the plaza is used by the Secret Service. (The Waldorf-Astoria Hotel is across the street.)However, one cal' parked there on a recent afternoon was registered to Fishel' Brothers. Telephone and e-mail messages seeking comment on theplaza from Fishel' Brothers were not returned.
One space that partly disappeared even before the new study could draw it to the attention of passers-by is the arcade on the Lexington Avenue
side of245 Park Avenue.
The 14,098-square-foot arcade generated a bonus of 42,294 square feet, more than a full floor of the 44-stOlY towel'. Now, about 65 feet of thearcade along Lexington Avenue, at the 46th Street corner, have been filled in. The owner, Brookfield Financial Properties, may put a restaurantthere.
According to city planners, the rationale began with a calculation by Brookfield that mechanical space had increased in the building. Becausemechanical space is not counted by zoning rules as floor area, that would technically have reduced the overall square footage of the building,
thereby reducing the zoning bonus needed and, in turn, the commensurate amount of public space the owner is obliged to provide.
Brookfield said in a statement that it had to enlarge mechanical space in the 33-year-old building to meet tenants' needs for electric power andair-conditioning. "While that step decreases the amount of usable office space in the building and the public space allotment," the statement said,"it was essential to ensuring 245 Park's future as a Class A property and significant contributor to the city's tax rolls."
It is not the first time that such an alteration has been made to public space without public review. Speaking generally of the practice, Mr. Rosesaid: "Public space cannot vanish overnight because of a recalculation of floor area. These were agreements between the public and privatesector.
"It's not hard to imagine such modifications to existing space serving the public interest," Mr. Rose said, "but the important thing is that thepublic have the right to review and approve such modifications."
The City Planning Department has filed three civil lawsuits and issued eight violation notices with the Environmental Control Board, anadministrative tribunal.
The lawsuits are against 40 Broad Street, an office building downtown with a plaza from which the required benches, planters and trees havebeen removed; Parc East Towel', an apartment building at 240 East 27th Street, which has locked a midblock passageway to its mini-park andwaterfall; and Worldwide Plaza on Eighth Avenue, between 49th and 50th Streets, where city officials say that the required chairs and tableshave been appropriated by restaurants on the edge ofthe plaza.
Open-space advocates believe the study can be put to use at a grassroots level. Thomas Balsley, a landscape architect who has designed numerouspublic spaces, envisions a "plaza posse" of citizens and community groups that would monitor spaces and report problems to the city.
Complaints about plazas that are not open or that fail to provide required amenities can be made to the Buildings Department at (212) 227-7000,Monday through Friday, 8 a.m. to 5 p.m. The caller should press 2 at the prompt, refer to "public space" and be as specific as possible about theaddress and problem.
On Oct. 28, the Municipal Art Society will send out volunteers to update the field surveys, in an operation dubbed the Holly Watch, after the lateWilliam H. (Holly) Whyte, a student of urban open space. This event is tied into the society's exhibition, "The World's Most Expensive PublicSpace," at the Urban Center, 457 Madison Avenue, between 50th and sist Streets.
http://www.nytimes.com/2000/1 0/15/realestate/public- realm -private- property -new-study -i... 2/15/2012
A Public Realm on Private Property; New study identifies and rates hundreds of spaces th... Page 3 of 3
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Copyngllt 2012 The New York Times Comgany I Privacy Policy 1M I Contact u.~I Work for Us"-I....S"'ite""M""'a"'p-L1",In",de""x,;;;bl"",'K""e""y..""or"'d --'
Some results may be surprising. M. Barry Schneider, the chairman of Community Board 8 on the Upper East Side, has long been vexed by thelocked gate to the garden of the Concorde, 220 East 65th Street. "It's a lovely plaza with a pool and rushing water and you can't get there fromhere," he said.
A glimpse at the survey, however, reveals that it is not the garden but a garage driveway that constitutes the public space.
http://www.nytimes.com/2000/1 0115/realestate/public-realm-private-property-new-study-i... 2/15/2012
Memorandum of Law of Amicus CuriaeNew York Civil Liberties Union
People v. Nunez, Docket No. 2011 NY 082891
Exhibit E
.,.September 19, 2007 I Calendar No. 21 N 070497 ZRY
CITY PLANNING COMMISSION
IN THE MATTER OF an application submitted by the Department of City Planning pursuant toSection 201 of the New York City Charter for an amendment of the Zoning Resolution of the City ofNew York to revise provisions related to privately owned public plazas, Community District 4,Borough of the Bronx; Community District 2, Borough of Brooklyn; Community Districts l, 2, 3, 4,5, 6, 8, Iû, 11, and 12, Borough of Manhattan; and Community Districts 2 and 12, Borough ofQueens.
The application for an amendment of the Zoning Resolution was filed by the Department of City
Planning on May 31, 2007, to revise and update design and operational standards related to
privately owned public plazas.
BACKGROUND
The first zoning regulations pennitting floor area bonuses in exchange for the construction of
privately owned public plazas were adopted in 1961 and, since that time, over 250 such spaces have
outdated criteria regarding the design of successful public spaces.
been created in Manhattan, Brooklyn, and Queens. While each of these spaces provides much-
needed public open space in the dense commercial and residential districts of New York City, many
of these plazas are deficient in their configuration, elevation, amenities, or other design features.
These deficiencies are at least partially attributable to the lack of specific design guidelines or
Public plazas, the subject of this application, are a subset of a class of open spaces commonly
termed Privately Owned Public Spaces (POPS). This term collectively refers to several types of
PROPOSED ZONING TEXT AMENDMENT
TI1.eDepartment of City Planning has maintained detailed records of all bonus plazas created under
the various zoning provisions and has continued to visit plazas and document their successes and
shortcomings. This ongoing analysis of bonus plazas has revealed that, while the introduction of
residential and urban plaza standards and gradual refinement of these guidelines has improved the
quality of plazas, there are still numerous instances of plazas that lack basic amenities or exhibit
design features that inhibit public use and enjoyment. For example, it is not unusual to find plazas
that provide limited seating options, deliberately inhibit seating with spikes, and have obstructions
that block visibility within the plaza area. These types of deficiencies are at least partially
attributable to outdated and inconsistent standards in the existing zoning text.
In addition, the zoning emphasizes a distinction between residential and urban plazas that is no
longer meaningful or useful. Residential plazas, while originally envisioned for residential
buildings in residential zoning districts, are increasingly provided in commercial districts that have
developed a strong mixed-use character such as Ladies' Mile and eastern Chelsea. Therefore,
regulations that were intended to distinguish between the unique needs of residential and
commercial user populations are no longer justified or appropriate.
TI1.eDepartment therefore proposes revisions to the standards for 1961 plazas, urban plazas, and
residential plazas and the creation of a new plaza type: the "public plaza". The proposed text
10 N 070497 ZRY
Memorandum of Law of Amicus CuriaeNew York Civil Liberties Union
People v. Nunez, Docket No. 2011 NY 082891
Exhibit F
18 COUNCIL MEMBERS: Simcha FelderEric GioiaRobert JacksonMelinda Katz
1
2 CITY COUNCIL
3CITY OF NEW YORK
4-------------------------------x
5THE TRANSCRIPT OF THE MINUTES
6of the
7SUBCOMMITTEE ON ZONING
8 And FRANCHISES
9 -------------------------------x10
11October 9, 2007Start: 10:05 a.m.Recess: 12:04 p.m.
12
13City HallCommittee RoomNew York, New York
14
15 B E F O R E:
16 TONY AVELLAChairperson,
17
19
20
21
22
23
24 LEGAL-EASE COURT REPORTING SERVICES, INC.17 Battery Place - Suite 1308
25 New York, New York 10004(800) 756-3410
20 designed and I'm worried about this more in
14 maintained, less well used and frequently these are
15 the spaces that come to us with applications for
16 night time closing because of safety issues. The
17 lobby, for example, doesn't front on these spaces.
18 COUNCIL MEMBER KATZ: What is the out
19 provision? Let's just say that a building is
21 other boroughs besides Manhattan. What are the out
22 provisions? A developer wants to put an open air
23 area in there. It would be good for the building.
24 The residents of the building think it's a good --
25 you know the future residents -- It would up the
15
l ZONING AND FRANCHISES
2 value for them. What's the out provision?
3 MR. BOTSFORD: The ultimate out
4 provision is a special permit which is available to
5 modify any of the design standards of public plazas
6 due to unique site conditions, for example. So if
7 there is an extraordinary circumstance where the
8 building entrance would need to be located elsewhere
9 that could be achieved via special permits.
la COUNCIL MEMBER KATZ: Any
Il extraordinary circumstances are defined by whom?
12 MR. BOTSFORD: Well the extraordinary
16 COUNCIL MEMBER KATZ: Really? You
13 circumstances -- That's not actually in the zoning
14 regulation, that specific language. That was my
15 language.
17 know I kind of though that.
18 So it would be a special permit
19 basically to the Council and have to go through the
20 whole process?
21 MR. BOTSFORD: Yes. Yes, full
22 process.
23 I'd also like to note that this isn't
24 also required that this be the only building
25 entrance. For example, there could be other
16
1 ZONING AND FRANCHISES
2 entrances that front on other streets.
3 COUNCIL MEMBER KATZ: I'm just
4 thinking that sometimes you want a plaza, even if
5 it's not in the perfect location.
6 The second thing that we talked about
7 is the barriers of the open air cafe. I understand
8 the idea of not wanting to cut it off, but my
9 concern came more so with the idea of painting the
10 ground in order to see that there's no creep out
11 into the plaza. Is that a requirement, or is that
Memorandum of Law of Amicus CuriaeNew York Civil Liberties Union
People v. Nunez, Docket No. 2011 NY 082891
Exhibit G
NEW YORK CIVIL LIBERTIES UNION
125 Broad StreetNew York, NY 10004212,607,3300212,607,3318www,nyclu,org
Taylor PendergrassSenior Staff AttorneyDirect Line: 212,607,3344tpendergrass@nyclu,org
NYCLUHAND DELIVEREDAND SENTVIA FIRSTCLASSMAIL
January 9, 2012
Commissioner Robert LiMandriDepartment of Buildings280 Broadway, 7th floorNew York, NY 10007
Re: Violations at 1 Liberty Plaza
Dear Commissioner LiMandri:
The New York Civil Liberties Union, the Center for Constitutional Rights, and the NationalLawyers Guild's New York City chapter write regarding the ongoing violations of city law at 1Liberty Plaza (165 Broadway), owned and managed by Brookfield Office Properties, SinceNovember 15, 2011, metal barricades have encircled the perimeter of Liberty Plaza, Inaddition, members of the public are subject to ad hoc, arbitrary and inconsistent rules andconditions restricting their use of the park, These practices have substantially modified LibertyPlaza, making it a wholly inhospitable space for the public, Putting aside for the moment theserious constitutional concerns raised by these practices, it is abundantly clear that suchrestrictions are in direct conflict with zoning laws, Brookfield's legal obligations under a 1968special zoning permit, and longstanding City policy, These restrictions significantly interferewith the public's use of Liberty Plaza on an ongoing and daily basis, and should be endedimmediately,
A, Laws governing Liberty Plaza require unobstructed public access and prior approval ofdesign modifications,
By the terms of a March 20, 1968 special zoning permit, the owner of 1 Liberty Plaza gainedvaluable zoning concessions in exchange for constructing and maintaining what is now LibertyPlaza as a "permanent open park" for the "public beneñt.'" Under City zoning laws, LibertyPlaza is defined as a "public plaza," and one over five hundred privately owned public spaces("POPS") in New York City,2 Under these laws, at least 50% of the sidewalk frontage of a publicplaza must be free of obstruction, and circulation paths must connect to each of the street
1City of New York Special Zoning Permit, CP-20222, No, 4, p,21S (March 20, 1968),
2 NYCZoning Resolution § 12-10,
The New York Affiliate of the American Civil Liberties Union I Jonathan Horn, President I Donna Lieberman, Executive Director
Furthermore, an owner's ability to restrict the public's use of a public plaza is constrained byzoning laws and by City policy. An owner of a public plaza may not, of course, forbid conduct inpublic plazas that is otherwise protected by the constitution. In addition, an owner "shall notprohibit behaviors that are consistent with the normal public use of a public plaza.:" Any otherrestrictions an owner seeks to impose on the public's ability to use or accessa public plaza mustbe "reasonable," pursuant to long established City pollcv." Finally, any prohibition on conductin a public plaza must be clearly posted in wrlttng,"
frontages.' In addition, any proposed modifications to public plaza's design must first gothrough an approval process before those changes can be made."
B. Blocking Access to Nearly All of Liberty PlazaViolates City Zoning Law and Brookfield'sLegal Obligations.
As noted above, to ensure the public's ability to freely enter and exit public plazas, zoning lawrequires that at least 50% of Liberty Park's frontage be unobstructed, and also mandatesunrestricted access to and from circulation paths. The metal barricades encircling Liberty Plazaenclose far more than 50% of the frontage and block access to major nearby walkways, inviolation of zoning laws.
For nearly two months public ingress and egress to Liberty Plaza has been blocked by metalbarricades encircling the public plaza. The public is only able to enter and exit Liberty Plaza attwo gaps, and at these points members of the public have been subject to searches of theirpersonal belongings by security personnel."
In addition, a barricaded encirclement patrolled by security personnel seriously interferes withthe public's use and enjoyment of Liberty Plaza, in violation of Brookfield's legal obligation tomaintain the space as a permanent open park. Any member of the public would be reluctant orunwilling to enter an area closed in by metal barricades with only two exits. This modificationpresents even more serious safety concerns when large numbers of people are attempting toenter or exit the park through two narrow gaps in the barricades. The barricades have all butended Liberty Plaza's role as a functioning public plaza.
3 NYCZoning Resolution §§ 37-721; 37-723; 37-726.
4 NYCZoning Resolution §§ 37-62 et. seq; 37-78; 74-91.
5 NYCZoning Resolution § 37-752.
6 The New York City Department of City Planning, Jerold S. Kayden, and the Municipal Art Society of New York,Privately Owned Public Space: The New York City Experience (John Wiley & Sons, 2000), p.38 (liThe Department ofCity Planning has taken the position that an owner may prescribe 'reasonable' rules of conduct").
7 NYCZoning Resolution § 37-73 et. seq.
8 Security personnel at Zuccotti Park at various times have included NYPDofficers, off-duty NYPDofficers employedby Brookfield, and private security staff employed by Brookfield, who often act in concert with, take directionfrom, and rely upon, NYPD officers.
Page 2 of 4
C. Constantly-Changing Unwritten Rules Unreasonably Restrict the Public's Use of LibertyPlaza in Violation of City Law.
Finally, the barricades constitute a major design modification to Liberty Plaza-and as theirpresence at the park approaches two months, a seemingly permanent one-that circumventedthe approval process required before the design of a public plaza can be altered. Thebarricades should be removed immediately.
Brookfield has purported to adopt written "rules of conduct" governing Liberty Plaza. Themanner in which these rules were adopted raise serious constitutional concerns, as do the rulesthemselves." Even assuming these regulations could be validly enforced, however, securitypersonnel go far beyond these written rules by selectively enforcing ever-shifting and unwrittenad hoc prohibitions. These unjustifiable restrictions are a serious, ongoing and dailyinfringement on use of the public plaza.
At the heart of these restrictions is the assertion of security personnel that certain items areprohibited in the park. The written "rules of conduct" do not, of course, prohibit any particularitem from entering Liberty Plaza. Instead, consistent with zoning laws, the written rules forbidonly conduct. These rules do not, and could not, entitle security personnel to turn an individualaway from a public plaza simply because he or she has a personal item that security personnelspeculate might be potentially used to engage in prohibited conduct sometime in the future.
Nevertheless, security personnel have declared that certain personal possessions are prohibitedin Liberty Plaza. The unwritten list of prohibited items varies daily and is wildly inconsistent.Individuals have been refused entry for possessing food, musical instruments, yoga mats,cardboard signs, shawls, blankets, "prohibited containers," chairs, bags of varying sizes, andnumerous other personal items. To effectuate the enforcement of the unwritten list of"prohibited items," security personnel have stopped individuals attempting to enter LibertyPlaza and forced them to submit to a search of their personal belongings. Individuals whorefused to permit their personal belongings to be searched have been prohibited from enteringthe public plaza.
Page 3 of 4
Almost all the items that have been prohibited in Liberty Plaza-signs, bags, containers, food,musical instruments, etc.-have also been allowed to enter the park at other times. Who issearched and what is prohibited is arbitrary and inconsistent. It varies by the day, the type ofactivity in the park at the time, the attire of the person attempting to enter, and the caprice ofsecurity personnel.
The inconsistent and selective enforcement of unwritten and constantly changing rules, andpreemptive searches of individuals attempting to enter the park, violates the terms of thespecial zoning permit which obligates Brookfield to maintain Liberty Plaza as a permanent openpark for the public benefit. These practices also violate zoning laws by prohibiting behavior that
9 In addition, as written and posted by Brookfield, the rules appear to violate City zoning laws governing themanner and form for "prohibition signs". See N.Y. Zoning Resolution §§ 37-747; 37-751; 37-752.
***
is normally permitted in public plazas. Finally, selectively enforcing unwritten rules is patentlyunreasonable, and therefore violates longstanding New York City policy constraining the type ofregulations on conduct an owner may adopt in a public plaza.
Metal barricades, preemptive searches, and selectively enforcing ever-changing unwritten ruleshave become established features of Liberty Plaza. These practices infringe on clearlyestablished constitutional rights, and they also violate zoning laws, Brookfield's legal obligationsunder the 1968 special zoning permit, and City policy. As the Mayor has noted with regard toLiberty Plaza, "we must never be afraid to insist on compliance with our laws."lO Thesepractices violate city law and should be ended immediately, restoring Liberty Plaza to its placeas a permanent open park that is open and accessible to all members of the public on an equalbasis.
We request a prompt final determination from the Department of Buildingsll and/or any otherappropriate New York City agency, in writing, with regard to this complaint.
Sincerely,
<1-f- 'P-â--Taylor PendergrassSenior Staff AttorneyNew York Civil Liberties Union
Baher AmzyLegal DirectorCenter for Constitutional Rights
Gideon Orion OliverPresidentNational Lawyers Guild, New York City Chapter
10 Statement of Mayor Michael R. Bloomberg on Clearing and Re-Opening of Zuccotti Park (Nov. 15, 2011).
11 NYCCharter § 643 (Department of Buildings "shall administer and enforce" zoning laws); NYCZoning Resolution§ 71-00 (same); NYCZoning Resolution § 37-78(d) (an owners' failure to comply with requirements applicable topublic plazas "shall constitute a violation" of zoning laws and Department of Buildings may enforce the violation byrevocation of building permit, revocation of certificate of occupancy, or any "other applicable remedies").
Page 4 of 4
Memorandum of Law of Amicus CuriaeNew York Civil Liberties Union
People v. Nunez, Docket No. 2011 NY 082891
Exhibit H
DATE: OCTOBER 25,2011
COMMUNITY BOARD #1 - MANHATTANRESOLUTION
COMMITTEES OF ORIGIN: QUALITY OF LIFE AND FINANCIAL DISTRICT
QUALITY VOTECOMMITTEE VOTE: 8 In Favor O Opposed O Abstained O Recused
FINANCIAL DISTRICTCOMMITTEE VOTE: 5 In Favor O Opposed O Abstained O Recused
PUBLIC MEMBERS: 2 In Favor O Opposed O Abstained O Recused
BOARD VOTE: 33 In Favor 3 Opposed 1 Abstained O Recused
RE: Occupy Wall Street protest in Zuccotti Park
WHEREAS: Community Board 1 (CB 1) supports Occupy Wall Street's (OWS) FirstAmendment right to protest, and
WHEREAS: CB 1 supports OWS's First Amendment right to free assembly, and
WHEREAS: CB 1 has previously been on record twice as supporting extension of the"millionaire's tax" to offset budget cuts to education, an issue that has also beenraised by many in OWS, and
WHEREAS: CBl is concerned that the magnitude of the situation at Zuccotti Park is not beingfully documented because calls to 311 have been turned away on the grounds thatthe NYPD is already aware of the situation; now
WHEREAS: CB I opposes the use of excessive and unnecessary force by the City of NewYork and/or Brookfield Office Properties to address this situation, and
WHEREAS: CB 1 believes that preserving Constitutional rights and also proactivelyaddressing the increasing frustration among many local residents and smallbusinesses regarding health, public safety, noise, sanitation and other communityconcerns are in no way mutually exclusive, and indeed both can be accomplished,and
THEREFOREBEITRESOLVEDTHAT: CB 1 calls on OWS, the City of New York, all elected officials representing
Lower Manhattan, Brookfield Properties and all major stakeholders to cometogether to address the following issues which are adversely affecting quality oflife in this community:
l) Limit use of drums, trumpets, tambourines, bugles, air homs, shouting andchanting, and all other sources of noise to two hours per day, in midday.
2) Arrange access to bathrooms off-site, and eliminate use of retail shops andresidential building doorways as bathroom facilities.
3) Enforce previously declared commitments by OWS to adopt all of the provisionsof the Good Neighbor Policy (attached) that have been previously agreed to ineight prior meetings with OWS over the past four weeks.
4) Work with local small businesses to address economic impacts.5) CB 1 requests a meeting with NYPD as soon as possible to discuss the necessity
for extensive deployment of pedestrian barricades in the central Financial District,and the removal of all except those deemed absolutely necessary for security andpublic safety.
6) CB 1 urges the NYC Department of Information Technology andTelecommunications to establish a consistent policy of accepting, recording,tracking and referring to the appropriate city agencies all 311 calls regardingdisturbances in and around Zuccotti Park.
Exhibit I
People v. Nunez, Docket No. 2011 NY 082891
Memorandum of Law of Amicus CuriaeNew York Civil Liberties Union
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Statement by BP Stringer, Congressman Nadler, and State Senator Squadron upon Passageof a Community Board 1Resolution Regarding Occupy Wall Street
Last week, we called on Brookfield to delay its clean-up of the park to allow for dialogue and, ultimately, a long-termsolution that works for the corn munity and protects the First Amendment rights of OWS.
Tonight's Corn m unity Board resolution is an attempt to establish a sens ible framework that respects the protesters'fundamental rights while addressing the very real quality of life concerns for res idents and bus inesses aroundZuccotti Park. Protecting the needs of Lower Manhattan and the rights of OWS do not need to be mutually exclusive.
We must all work together to make that framework a reality.
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Citywide Privately Owned Public Space
Current Public Plaza Standards
The 2007 zoning text amendment made significant changes to the design standards for privatelyowned public plazas. Previous standards for urban and residential plazas were replaced with anew set of design standards that apply to all privately owned public plazas.
For the full zoning text related to the public plaza design standards, which includes the 2009follow-up text amendment, please read Article III Chapter 7 Section 70 of the New York CityZoning Resolution.
1. Privately Owned Public Spaces 2. Current Public Plaza Standards 3. History4. 2007 Text Amendment 5. 2009 Follow-up Text Amendment 6. Inventory
For further information see website at :http://www.nyc.gov/html/dcp/html/pops/plaza_standards.shtml#hours
Ethics Materials
Within Each Lawyer’s Conscious a Touchstone: Law, Morality, and Attorney Civil Disobedience, by Robert M. Palumbos, 153 University of Pennsylvania Law Review 1053 Lawyering for Social Change, Karen L. Loewy, 27 Fordham Urban Law Journal 1869
(1057)
WITHIN EACH LAWYER’S CONSCIENCE A TOUCHSTONE: LAW,MORALITY, AND ATTORNEY CIVIL DISOBEDIENCE
ROBERT M. PALUMBOS†
Lawyers, like all citizens, inevitably face conflicts between their re-sponsibility to the law and their moral obligations. Attorneys, however,have a unique range of options for resolving such conflicts. They notonly have power and privilege in the legal system that other citizenslack, but they also assume a heightened duty to that system and to thelaw. As the Model Code of Professional Responsibility states, “[t]o law-yers especially, respect for the law should be more than a platitude.”1
Civil disobedience has become an accepted method for citizens toresist the authority of the state on moral grounds.2 By committingcivil disobedience3 and willingly accepting judicial punishment, onecan protest the moral content of a law while still respecting the legalduty it imposes. This Comment addresses whether the current rulesof professional ethics leave the option of civil disobedience availableto attorneys, and asks under what circumstances attorneys may be jus-tified in exercising that option.
† B.A. 1999, The Johns Hopkins University; M.A. 1999, The Johns Hopkins Univer-sity; J.D. Candidate 2005, University of Pennsylvania. I would like to thank ProfessorGeoffrey C. Hazard, Jr. for offering his thoughts as I shaped this Comment. I am alsograteful to Steve Bero, Melanie McMenamin, and Indraneel Sur for their extraordinar-ily helpful thoughts on a draft of this Comment.
1MODEL CODE OF PROF’L RESPONSIBILITY EC 1-5 (1980).
2See In re Eastburn, 914 P.2d 1028, 1029 (N.M. 1996) (per curiam) (“Civil disobe-
dience, militant protest, inflammatory rhetoric, and other forms of resistance to estab-lished authority have had an important role in the history of democracy.”); LindseyCowen, The Lawyer’s Role in Civil Disobedience, 47 N.C. L. REV. 587, 587 (1969) (“[I]t ap-pears that most persons who have written on the subject believe that under certain cir-cumstances conduct that is illegal, and therefore punishable by the state, may neverthe-less be morally justified.”); Monroe H. Freedman, Legal Ethics from a Jewish Perspective,27 TEX. TECH L. REV. 1131, 1138 (1996) (noting that the author, a law professor, sup-ported civil disobedience against the Vietnam War and himself committed civil disobe-dience); William H. Pryor, Jr., Christian Duty and the Rule of Law, 34 CUMB. L. REV. 1, 8(2003) (implying that the author, the sitting Attorney General of Alabama, believed civildisobedience was justified under certain circumstances to protest unjust laws).
3I will use “civil disobedience,” “conscientious noncompliance,” and other related
terms interchangeably to refer to “the violation of law by nonviolent means where op-position to the law is based on a deeply held conviction that the law itself is in conflictwith some higher principle.” Robert B. McKay, Civil Disobedience: A New Credo?, 2 GA.L. REV. 16, 19 (1967).
1058 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 153: 1057
Attorney civil disobedience is hardly novel. The man who fa-mously demonstrated the power of civil disobedience to the world,Mohandas Gandhi, was trained in the English common law system andpracticed law for more than twenty years.4 Far from being an obstacleto moral reform, Gandhi’s legal training was instrumental in the de-velopment of nonviolent resistance to British imperial control of In-dia. Gandhi maintained a very lawyerly respect for the law and the le-gal system even as he defied it.5 This Comment explores the extent towhich the American bar has accepted Gandhi’s example of reform forits own lawyers.
After reviewing the moral and philosophical justifications for civildisobedience in Part I, I will examine the codes of professional ethics6
and related case law in Part II to determine the position of the organizedbar on attorney civil disobedience. This discussion makes clear that, de-spite the bar’s insistence in its official rules that its members obey andrespect the law, there is a measure of unofficial tolerance for conscien-tious noncompliance by lawyers. Unfortunately, it remains uncertainfrom the application of the ethics rules how far this tolerance goes.
Part III addresses normative arguments for and against permittinglawyers to engage in civil disobedience in light of the legal profes-sion’s relationship to law and society. I argue that the main criticismsof attorney civil disobedience overlook key elements of the bar’s rela-tionship to the law, to the public, and to the legal system. While law-yers should be cognizant of a heightened responsibility to obey thelaw, the theoretical and practical arguments in favor of allowing themto commit civil disobedience, under some circumstances, are strongerthan those in opposition.
4John Leubsdorf, Gandhi’s Legal Ethics, 51 RUTGERS L. REV. 923, 923 (1999).
5See id. at 938-39 (describing the respect with which Gandhi submitted himself to
the law’s judgment as an important part of his philosophy).6
Unless otherwise specified, I will use the terms “codes of ethics” or “ethicsrules” to refer collectively to the Model Code of Professional Responsibility (ModelCode) and the Model Rules of Professional Conduct (Model Rules), promulgated bythe American Bar Association and now binding in most states. See ABA COMPENDIUMOF PROF’L RESPONSIBILITY RULES AND STANDARDS 637 (2004) [hereinafter ABACOMPENDIUM] (listing the forty-five jurisdictions that have adopted the Model Rules).Though the Model Rules superceded the Model Code in 1983, I will consider both theModel Code and the Model Rules in this Comment. The Model Code remains rele-vant because “many provisions of the Model Rules are based on provisions of theCode.” NATHAN M. CRYSTAL, AN INTRODUCTION TO PROFESSIONAL RESPONSIBILITY 7(1998). In addition, prior court decisions based on the Model Code still hold true un-der the Model Rules. Id. Thus, discussing the approach of the Model Code towardsattorney civil disobedience provides a broader and more accurate view of the bar’s atti-tude on this issue.
2005] WITHIN EACH LAWYER’S CONSCIENCE 1059
Finally, in Part IV, I will elaborate on the circumstances in whichattorney disobedience is justified. I propose to amend the rules of le-gal ethics to acknowledge explicitly that attorneys should subject thelaw to some personal moral scrutiny. By recognizing that moral obli-gations may overcome legal duties, the canons of legal ethics willstrengthen an important safeguard against injustice. However, since itis appropriate that attorneys exercise a greater degree of caution thanother citizens before committing civil disobedience, the rules shouldestablish clear consequences for justified noncompliance. Currently,attorneys face a high-stakes gamble as to how the bar’s disciplinarybodies will respond to their disobedience. Leaving their careers tothe whims of the profession’s disciplinary discretion makes the cost ofattorney civil disobedience too high. Yet, imposing some professionalconsequences on attorneys is appropriate because it will make themevaluate more rigorously the principle for which they are willing tobreak the law and consider the social costs of their disobedience.
I. THE PURPOSES OF AND JUSTIFICATIONSFOR CIVIL DISOBEDIENCE
The concept of justified civil disobedience has deep roots in ourjurisprudence and has survived challenges to its philosophical founda-tions.7 Traditional natural law theory, which has influenced Westernlegal tradition for centuries,8 posits a necessary connection betweenlaw and morality.9 Best illustrated by St. Augustine’s proposition that“an unjust law is no law at all,”10 natural law theory claims that a law
7See United States v. Dorrell, 758 F.2d 427, 435 (9th Cir. 1985) (Ferguson, J., con-
curring) (“Civil disobedience has a long heritage in this country, beginning as far backas the Boston Tea Party.”).
8See JEFFRIE G. MURPHY & JULES L. COLEMAN, PHILOSOPHY OF LAW: AN
INTRODUCTION TO JURISPRUDENCE 12-14 (rev. ed. 1990) (describing the developmentof natural law theory by Plato, Aristotle, Cicero, and St. Thomas Aquinas, as well as itsreformulation by the thinkers of the Enlightenment and the French and AmericanRevolutions).
9See id. at 11 (“Natural law theories maintain that there is an essential (concep-
tual, logical, necessary) connection between law and morality. . . . [A]ccording to natu-ral law theory, it is part of the very meaning of ‘law’ that it passes a moral test.”); see alsoLARRY ALEXANDER & EMILY SHERWIN, THE RULE OF RULES: MORALITY, RULES, ANDTHE DILEMMAS OF LAW 184 (2001) (describing the natural law proposition that “lawmust be essentially connected with morality”).
10AUGUSTINE, ON FREE CHOICE OF THE WILL 8 (Thomas Williams trans., Hackett
Publ’g Co. 1993) (ca. 395). This quote has been called a “slogan” of natural law, seeMURPHY & COLEMAN, supra note 8, at 11, and was used by Martin Luther King, Jr., tojustify his own civil disobedience, see MARTIN LUTHER KING, JR., Letter from BirminghamJail, in WHY WE CAN’T WAIT 76, 82 (1964), available at http://www.stanford.edu/
1060 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 153: 1057
lacking moral legitimacy is not legally valid.11 Legal positivism, whichgrew out of the Enlightenment in reaction to natural law theory,12 sev-ered the essential link between law and morality.13 Whereas naturallaw theory understands legal validity as a normative category, positiv-ism treats it as a purely descriptive one. Positivists look to a law’spedigree—not its moral content—to determine its legal legitimacy.14
Valid laws are those issued by the sovereign in accordance with the“rule of recognition” of the legal system.15 They impose an obligationon citizens to obey, and they become a standard within the society forcriticizing and justifying behavior.16
It was against the background of the debate between natural lawand positivism that Henry David Thoreau, the “father” of modern-daycivil disobedience,17 developed his understanding of one’s right tobreak the law. Thoreau accepted the positivist perspective that mor-ally repugnant laws were still legally binding, but claimed that his
group/King/popular_requests/frequentdocs/birmingham.pdf (last visited Dec. 31,2004).
11ALEXANDER & SHERWIN, supra note 9, at 187 (characterizing the natural law per-
spective that laws “can be normative in the way they claim only if they are consistentwith moral norms”).
12MURPHY & COLEMAN, supra note 8, at 19. Enlightenment figures such as Tho-
mas Hobbes and Immanuel Kant shifted jurisprudential inquiry away from natural lawtheory and laid the groundwork for John Austin’s system of positivism. See THOMASHOBBES, LEVIATHAN 185 (Richard Tuck ed., Cambridge Univ. Press 1991) (1651)(“[E]very subject in a Common-wealth . . . hath covenanted to obey the Civill [sic]Law”); IMMANUEL KANT, THE METAPHYSICS OF MORALS 55 (Mary Gregor trans., Cam-bridge Univ. Press 1991) (1797) (arguing that one can inquire into what is legal with-out inquiring into what is moral).
13See ALEXANDER & SHERWIN, supra note 9, at 188 (describing the positivist posi-
tion as one that recognizes the sovereign’s rules as law even if those rules are “terriblyimmoral”); H.L.A. HART, THE CONCEPT OF LAW 185-86 (2d ed. 1994) (defining positiv-ism as “the simple contention that it is in no sense a necessary truth that laws repro-duce or satisfy certain demands of morality”).
14See MURPHY & COLEMAN, supra note 8, at 22 (noting Austin’s argument that un-
der positivism “the legal is distinguished from the nonlegal in terms of pedigree,” notmorality).
15See HART, supra note 13, at 100 (“Wherever such a rule of recognition is ac-
cepted, both private persons and officials are provided with authoritative criteria foridentifying primary rules of obligation.”); cf. 1 JOHN AUSTIN, LECTURES ONJURISPRUDENCE 6-11 (Robert Campbell ed., Jersey City, Frederick D. Linn & Co. 1875)(arguing that laws are commands by the sovereign backed by threat of force, not moralauthority).
16See HART, supra note 13, at 55-56 (noting that a law, unlike a custom or habit,
becomes a measure for criticizing behavior and a justification for demanding certainactions).
17Cowen, supra note 2, at 588 n.6; Kenneth Jost, Opinion, Oliver North and the Son
of Sam, CHRISTIAN SCI. MONITOR, Nov. 4, 1991, at 18.
2005] WITHIN EACH LAWYER’S CONSCIENCE 1061
moral obligations could nevertheless outweigh his duty to obey thelaw.18 Arguing that even a just government authorized by “the sanctionand consent of the governed” had “no pure right over [his] personand property,”19 Thoreau chose to withhold his taxes and accept im-prisonment rather than fund the government’s support for slaveryand its engagement in the Mexican War.20 Thus was born the modernconcept of civil disobedience, under which “[p]ersons are thought tobe justified in violating the law if, but only if, they are prepared to bepunished for their disobedience.”21
Positivism remains, by and large, the dominant American ap-proach toward legal ethics today.22 Nevertheless, the history of thetwentieth century strongly impressed upon Western culture the tragicpotential of obeying laws merely because they are legally valid. Wefear what William Simon described as the “nightmarish slippery slopeof Positivism” that “leads to compliance with jurisdictionally adequatebut morally evil laws like the Nazi enactments requiring reporting Jewsand dissidents or the antebellum Fugitive Slave Laws.”23 We have seen
18See HENRY DAVID THOREAU, WALDEN AND CIVIL DISOBEDIENCE 231 (Owen
Thomas ed., W.W. Norton & Co. 1966) (1849) (declaring that it is better to break thelaw than to be the “agent of injustice” through one’s obedience).
19Id. at 243.
20See id. at 228 (discussing the need to “do justice to the slave and to Mexico”); see
also United States v. Dorrell, 758 F.2d 427, 435 (9th Cir. 1985) (Ferguson, J., concur-ring) (“Some, like Thoreau, chose to refrain from society’s fundamental obligation topay taxes for the common benefit in order to express their repugnance to a govern-ment that fostered slavery.”).
21HEIDI M. HURD, MORAL COMBAT 274-75 (1999); see also KING, supra note 10, at
83-84 (“I submit that an individual who breaks a law that conscience tells him is unjust,and who willingly accepts the penalty of imprisonment in order to arouse the con-science of the community over its injustice, is in reality expressing the highest respectfor law.”); Pryor, supra note 2, at 8 (contrasting civil disobedience, in which the indi-vidual accepts punishment, with lawbreaking in which an individual seeks to evadepunishment).
22Cf. WILLIAM H. SIMON, THE PRACTICE OF JUSTICE: A THEORY OF LAWYERS’
ETHICS 37 (1998) (“Legal ethics is the only area in which [practicing lawyers] continueto cling to [the positivist approach].”) Few would seriously argue the traditional natu-ral law position that an unjust law lacks legal validity. See MURPHY & COLEMAN, supranote 8, at 7, 11-12 (criticizing natural law theory for insisting that “no rule can count aslaw unless what it requires is at least morally permissible” and thus failing to realize theobvious fact that “law and morality are in some sense different even if closely related”);David Luban, Conscientious Lawyers for Conscientious Lawbreakers, 52 U. PITT. L. REV. 793,801 (1991) (noting that “natural law theories are quite out of favor with contemporarylawyers”).
23William H. Simon, Should Lawyers Obey the Law?, 38 WM. & MARY L. REV. 217, 224
(1996); see also Maura Strassberg, Taking Ethics Seriously: Beyond Positivist Jurisprudence inLegal Ethics, 80 IOWA L. REV. 901, 916-17 (1995) (recounting the argument that “the
1062 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 153: 1057
the reality of legal regimes that were so unjust that noncompliancewith them became, to some, a moral obligation superceding the legalduty to obey the law.24 Modern advocates of positivism have recog-nized the need for some moral inquiry into a citizen’s duty to the law,noting that “the certification of something as legally valid is not con-clusive of the question of obedience.”25 Consequently, though main-stream American society rejects classical natural law theory, it also re-sists a categorical duty to obey valid laws26 and recognizes civildisobedience as a valid form of protest and a valid democratic checkon unjust laws.27
Though the right of citizens to engage in civil disobedience iswidely accepted, it remains highly contested whether attorneys have(or should have) the same right.28 This is clearly a significant questionfor our society generally and for lawyers in particular. Attorneys enjoyunique privilege and power within the judicial system; their rights,status, and actions inherently affect our legal environment in ways thatthose of other citizens do not. Our willingness as a society—and thebar’s willingness as a profession—to tolerate attorney noncompliance
actions of the German legal community under the Nazis resulted from the modernpositivist attempt to maintain the distinction between legal and moral validity”).
24See KING, supra note 10, at 84 (justifying the violation of unjust laws in Nazi
Germany and communist countries); Stephen Ellmann, To Live Outside the Law YouMust Be Honest: Bram Fischer and the Meaning of Integrity, 26 N.C. J. INT’L L. & COM. REG.767, 768-70 (2001) (describing lawbreaking by judicial actors within the South Africanapartheid system).
25See HART, supra note 13, at 210 (“[Men] should preserve the sense that the certi-
fication of something as legally valid is not conclusive of the question of obedience,and that . . . its demands must in the end be submitted to a moral scrutiny.”).
26Id.; Simon, supra note 23, at 228 (“Mainstream American legal culture incorpo-
rates both Positivist and Substantive perspectives, giving emphasis to one or the otherin some areas, while trying awkwardly to synthesize them in others.”); Strassberg, supranote 23, at 905 (stating Ronald Dworkin’s position that “recognizing the inherent le-gitimacy of much civil disobedience is fundamental to overcoming the separation be-tween law and morality”).
27See supra note 2.
28Compare David Luban, Legal Ideals and Moral Obligations: A Comment on Simon, 38
WM. & MARY L. REV. 255, 259 (1996) (“[B]ecause lawyers are often better positionedthan nonlawyers to realize the unfairness or unreasonableness of a law, lawyers oftenshould be among the first to violate or nullify it, or to counsel others that it is accept-able to violate or nullify it.”), and Simon, supra note 23, at 218 (arguing that the domi-nant view on legal ethics is skewed far too heavily in the positivist direction, restrictinga lawyer’s ability to facilitate a moral outcome), with Timothy P. Terrell, Toward Duty-Based Lawyering?: Rethinking the Dangers of Lawyer Civil Disobedience in the Current Era ofRegulation, 54 ALA. L. REV. 831, 834-35 (2003) (claiming that lawyer civil disobedienceshould be discouraged because it necessarily undermines the legal system’s claim tolegitimacy).
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illuminate the American attorney’s relationship to the law in severalways.
First, the acceptability of civil disobedience by lawyers necessar-ily reflects a judgment about the interests that attorneys represent.Our position on this issue reveals whether we view lawyers purely asagents mediating the respective interests of their clients and thestate, or whether we also consider them accountable to society forbroader moral interests. Second, since one justification for civildisobedience is that there is a personal right to violate the law outof moral obligation,29 forbidding attorney noncompliance stripslawyers of a prerogative that has come to be understood as a basicelement of citizenship. It is prudent to recognize explicitly whetherthis sacrifice is one of the collateral effects of the decision to be anattorney.
Third, since lawyers are among the primary actors implementingthe state’s edicts, their capacity to disobey unjust or evil laws is par-ticularly relevant to our concern about the slippery slope of positiv-ism.30 Given the powerful role of attorneys in the legal system—bothpractical and symbolic—their acts of noncompliance will almost cer-tainly have a greater impact (for good and bad) than those of othercitizens. Finally, the issue of lawyer civil disobedience potentially re-stricts the type of laws that can be justifiably disobeyed. Since thereare some legal obligations imposed only on attorneys by virtue oftheir profession,31 these rules may only be disobeyed by attorneys.32
A determination that lawyer disobedience is prohibited would meanthat these laws are not considered susceptible to noncompliance, aproposition that contradicts our society’s general acceptance of theconcept of civil disobedience.
29Cf. United States v. Sisson, 297 F. Supp. 902, 910 (D. Mass. 1969) (“When the
state through its laws seeks to override reasonable moral commitments it makes a dan-gerously uncharacteristic choice.”); THOREAU, supra note 18, at 243 (“[T]o be strictlyjust, [government] must have the sanction and consent of the governed. It can haveno pure right over my person and property but what I concede to it.”).
30See Strassberg, supra note 23, at 916 (noting that “judges and lawyers obeyed and
enforced [the] ‘valid’ laws” of Nazi Germany).31
See, e.g., PA. RULES OF PROF’L CONDUCT 1 (2001) (establishing legally bindingrules of professional responsibility for attorneys admitted to the Pennsylvania bar).
32See, e.g., 1 GEOFFREY C. HAZARD, JR. & W. WILLIAM HODES, THE LAW OF
LAWYERING § 9.20 (3d ed. Supp. 2003) (noting that under the original Model Rule1.6(b)(1) (amended in 2002, see infra note 57), a lawyer would have had to violate therequirement of client confidentiality in order to save a life, and suggesting that an at-torney in this situation would be justified in engaging in civil disobedience).
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II. THE TREATMENT OF ATTORNEY CIVIL DISOBEDIENCE UNDERTHE CODES OF PROFESSIONAL ETHICS
Lawyer civil disobedience differs from that of other citizens be-cause attorneys are subject to binding professional rules of ethics towhich they alone must answer.33 This fact allows for attorney civil dis-obedience in two possible forms: (1) violations of substantive law, and(2) violations of binding professional ethics requirements.34 With re-spect to the former, attorneys, like all other citizens, are subject tocriminal liability. Unlike other citizens, however, attorneys also facepotential punishment under their codes of ethics for such lawbreak-ing.35 The latter form of civil disobedience is available only to lawyersand punishable under professional disciplinary rules, not the criminallaw.36 This discussion will not distinguish between the two forms oflawyer disobedience because the operative question is the same forboth types: what are the consequences to an attorney under the codesof professional ethics for conscientiously violating legally bindingrules?37
33See Strassberg, supra note 23, at 904 (“In all fifty states, lawyers are governed and
will continued [sic] to be governed by positive rules.”).34
See Mary C. Daly, To Betray Once? To Betray Twice?: Reflections on Confidentiality, AGuilty Client, an Innocent Condemned Man, and an Ethics-Seeking Defense Counsel, 29 LOY.L.A. L. REV. 1611, 1628-29 (1996) (describing violation of ethics rules for moral rea-sons as civil disobedience).
35See infra text accompanying notes 39-46 (describing the characterization of law-
breaking by attorneys as misconduct under professional norms).36
See MODEL CODE OF PROF’L RESPONSIBILITY EC 7-1 (stating that the “bounds of thelaw” include enforceable professional regulations in addition to substantive law); see alsosupra note 32 (describing an attorney’s breach of client confidentiality as potential civildisobedience).
37There is a significant body of literature that discusses the professional ethics
problems an attorney faces while representing clients contemplating civil disobedience,including: Geoffrey C. Hazard, Jr., How Far May a Lawyer Go in Assisting a Client in LegallyWrongful Conduct?, 35 U. MIAMI L. REV. 669 (1981); Luban, supra note 22, at 793-98;Martha Minow, Breaking the Law: Lawyers and Clients in Struggles for Social Change, 52 U.PITT. L. REV. 723 (1991); Joel S. Newman, Legal Advice Toward Illegal Ends, 28 U. RICH.L. REV. 287 (1994); Stephen L. Pepper, Counseling at the Limits of the Law: An Exercise inthe Jurisprudence and Ethics of Lawyering, 104 YALE L.J. 1545 (1995). Such representationcould theoretically constitute attorney disobedience to the ethical codes, which pro-hibit lawyers from counseling or assisting a client “in conduct that the lawyer knows iscriminal.” MODEL RULES OF PROF’L CONDUCT R. 1.2(d) (2003); see also MODEL CODEOF PROF’L RESPONSIBILITY DR 7-102(A) (“[A] lawyer shall not . . . [c]ounsel or assist hisclient in conduct that the lawyer knows to be illegal . . . .”). These representationalissues, however, are largely beyond the scope of this Comment. Though they might becharacterized as questions about attorney disobedience to the rule of law, these issuesinvolve very thorny problems of client autonomy, role morality, and the attorney’sgatekeeper function in the legal system. See, e.g., DAVID LUBAN, LAWYERS AND JUSTICE:
2005] WITHIN EACH LAWYER’S CONSCIENCE 1065
The codes of ethics present a striking obstacle to answering thisquestion. The ethics rules impose seemingly conflicting duties onlawyers with respect to civil disobedience.38 On the one hand, thecodes state in no uncertain terms that lawyers have a “duty to upholdlegal process”39 and to show respect for the law by obeying it.40 Boththe Model Rules of Professional Conduct (Model Rules) and theModel Code of Professional Responsibility (Model Code) explicitlydefine professional misconduct to include illegal actions. The ModelCode states that a “lawyer shall not . . . [e]ngage in illegal conduct in-volving moral turpitude” or “any other conduct that adversely reflectson his fitness to practice law.”41 The Code warns against “even minorviolations of law by a lawyer,”42 and holds attorneys responsible for thelaw at all times, regardless of whether they are acting in their profes-sional or personal capacities.43 The Model Rules establish that it is
AN ETHICAL STUDY 148-66 (1988) (discussing the dominant principle of nonaccount-ability of attorneys for the decisions of their clients). Such issues are related to, butdistinct from, the question of whether attorneys may violate the law for moral reasonsoutside of their representational roles; these deserve separate attention.
Moreover, while important unresolved questions remain about representing clientsconsidering conscientious lawbreaking, there appears already to be greater agreementin the legal community about the propriety of such representation than there is aboutactual attorney disobedience. See MODEL RULES OF PROF’L CONDUCT R. 1.2(d) cmt. 6(“[T]he fact that a client uses advice in a course of action that is criminal or fraudulentdoes not of itself make a lawyer a party to the course of action.”); Newman, supra, at 290-92 (arguing that the professional codes of ethics clearly allow an attorney to give neutrallegal advice to a client that will likely be used to commit a crime); Press Release, Na-tional Lawyers Guild, National Lawyers Guild Supports Acts of Civil Disobedience inProtesting Preemptive Strike Against Iraq (Oct. 3, 2002) (announcing intent to providelegal support and materials to individuals and groups considering civil disobedience),available at http://www.nlg.org/news/statements/iraq_cd.htm (last visited Dec. 31,2004).
38See Judith A. McMorrow, Civil Disobedience and the Lawyer’s Obligation to the Law,
48 WASH. & LEE L. REV. 139, 139-41 (1991) (discussing how a lawyer’s “special obliga-tions both to uphold the law and to strive to make the law just” make it unclearwhether attorneys may commit civil disobedience).
39MODEL RULES OF PROF’L CONDUCT Preamble para. 5.
40See MODEL CODE OF PROF’L RESPONSIBILITY EC 1-5 (“Obedience to law exempli-
fies respect for the law. To lawyers especially, respect for the law should be more thana platitude.”); ABA Young Lawyers Div., Lawyer’s Pledge of Professionalism, in ABACOMPENDIUM, supra note 6, at 437 (“I will encourage respect for the law and our legalsystem through my words and actions.”).
41MODEL CODE OF PROF’L RESPONSIBILITY DR 1-102(A); see also id. EC 1-5 (declar-
ing that attorneys should “refrain from all illegal and morally reprehensible conduct”).42
See id. EC 1-5 (“[E]ven minor violations of law by a lawyer may tend to lessenpublic confidence in the legal profession.”).
43See id. (stating that a lawyer’s duty to demonstrate respect for the law and the
legal profession is due to “his position in society” as an attorney); McMorrow, supra
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“professional misconduct for a lawyer to . . . commit a criminal act thatreflects adversely on the lawyer’s honesty, trustworthiness or fitness asa lawyer.”44 Thus, compared to the Model Code, the Model Rules nar-row the scope and degree of illegal conduct for which attorneys areresponsible.45 Nevertheless, a pattern of minor violations remains suf-ficient to discipline an attorney under the Model Rules, including theuse of temporary or permanent disbarment.46
Taken by itself, such language would prohibit attorney civil dis-obedience fairly clearly. The ethics rules, however, also impose onlawyers a duty to improve the law by seeking to make it more just. TheModel Code advises attorneys to “[a]ssist in [i]mproving the [l]egal[s]ystem”47 and to strive to make the law more “just, understandable,and responsive to the needs of society.”48 The Model Rules similarlyemphasize that lawyers should improve the law and the legal system.49
Thus, the professional rules of ethics place on lawyers two sets ofresponsibilities that intersect and conflict on the question of conscien-tious lawbreaking. Civil disobedience is one potential mechanism by
note 38, at 152 (noting that, under the Model Code, the ABA rejected “any distinctionbetween professional and personal conduct, stating that a lawyer must comply with ap-plicable rules at all times”); see also In re Preston, 616 P.2d 1, 5 (Alaska 1980) (rejectingattorney’s contention that he should not be disciplined for illegal conduct because it“was unrelated to his professional skill and ability to practice law”).
44MODEL RULES OF PROF’L CONDUCT R. 8.4.
45See id. R. 8.4 cmt. 2 (“Although a lawyer is personally answerable to the entire
criminal law, a lawyer should be professionally answerable only for offenses that indi-cate lack of those characteristics relevant to law practice.”); William H. Simon, MoralPluck: Legal Ethics in Popular Culture, 101 COLUM. L. REV. 421, 424 n.13 (2001) (de-scribing the Model Rules as taking “a more moderate line” on violations of the law byattorneys than the Model Code).
46See MODEL RULES OF PROF’L CONDUCT R. 8.4 cmt. 2 (“A pattern of repeated of-
fenses, even ones of minor significance when considered separately, can indicate indif-ference to legal obligation.”); Strassberg, supra note 23, at 902 n.14 (criticizing DavidLuban’s proposal for giving attorneys who commit justified civil disobedience “no com-fort that their careers will or should survive”); Terrell, supra note 28, at 835-36 (notingthat attorney civil disobedience risks the punishment of disbarment).
47MODEL CODE OF PROF’L RESPONSIBILITY Canon 8.
48Id. EC 8-2; see also id. EC 8-9 (“The advancement of our legal system is of vital
importance in maintaining the rule of law and in facilitating orderly changes; there-fore, lawyers should encourage, and should aid in making, needed changes and im-provements.”).
49See MODEL RULES OF PROF’L CONDUCT Preamble para. 6 (“[A] lawyer should
seek improvement of the law, access to the legal system, the administration of justiceand the quality of service rendered by the legal profession.”); id. Preamble para. 7 (“Alawyer should strive . . . to improve the law and the legal profession . . . .”); id. R.6.1(b)(3) (emphasizing that lawyers should participate “in activities for improving thelaw, the legal system or the legal profession”).
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which lawyers might seek to make the law—or the rules governing thelegal profession—more just.50 Yet, the rules appear to forbid suchwell-intended lawbreaking.
One possible solution to this conflict, identified in the Model Code,is simply to limit an attorney’s efforts to improve the law to “lawfulmeans.”51 This resolution is deficient in three respects. First, the ModelRules lack a similar restriction.52 Second, the Model Code’s limitationon attorney disobedience is in tension with its claim that “[e]ach lawyermust find within his own conscience the touchstone against which totest the extent to which his actions” are ethical.53 Likewise, the ModelRules note that a lawyer’s professional duties must be informed by“personal conscience,” not merely the obligations imposed by theblack letter words of the codes of ethics.54 The spirit of such advicesurely opens the door, however slightly, to attorney civil disobedience.Finally, attorneys may face circumstances in which lawful efforts toimprove the law or prevent injustice are either ineffective or impossi-ble.55
Consider, for example, a case in which a client tells her lawyer thatshe committed the crime for which another person is about to be exe-cuted.56 Until 2002, if a client refused to waive confidentiality, the law-
50See HAZARD & HODES, supra note 32, § 9.20 (suggesting that if a lawyer violated a
professional ethics rule on moral grounds, “[t]he publicity arising from such a casemight well lead to salutary changes in the law—a hallmark of conscientious civil dis-obedience”); Leslie Griffin, The Relevance of Religion to a Lawyer’s Work: Legal Ethics, 66FORDHAM L. REV. 1253, 1261 (1998) (arguing that civil disobedience is one option forcriticizing an unjust law and that “the legal profession needs criticism to improve itsown standards”).
51Cf. MODEL CODE OF PROF’L RESPONSIBILITY EC 8-2 (stating that a lawyer “should
endeavor by lawful means to obtain appropriate changes in the law”).52
See MODEL RULES OF PROF’L CONDUCT R. 6.1(b)(3) (stating that a lawyer should“provide any additional services through . . . participation in activities for improvingthe law, the legal system or the legal profession” (emphasis added)); id. R. 6.1 cmt. 8(providing a nonexhaustive list of examples of how a lawyer may work to improve thelaw); cf. supra note 45 and accompanying text (noting that the Model Rules adopt amore moderate approach to illegal lawyer conduct).
53MODEL CODE OF PROF’L RESPONSIBILITY Preamble.
54See MODEL RULES OF PROF’L CONDUCT Preamble para. 7 (“Many of a lawyer’s
professional responsibilities are prescribed in the Rules of Professional Conduct, aswell as substantive and procedural law. However, a lawyer is also guided by personalconscience and the approbation of professional peers.”).
55See Minow, supra note 37, at 727-39 (describing the limits on lawful reform, the
potential negative consequences in pursuing it, and the advantages that civil disobedi-ence offers in certain situations).
56See Monroe H. Freedman, The Life-Saving Exception to Confidentiality: Restating
Law Without the Was, the Will Be, or the Ought to Be, 29 LOY. L.A. L. REV. 1631, 1632,
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yer would have been prohibited by the Model Rules from taking stepsto prevent the execution.57 In essence, the lawyer had no “lawful” op-tions at her disposal to ensure a just result.58 In such instances, dis-obeying the law may be the most ethical course of action because it isthe only way to prevent the legal system from committing a grave in-justice. The “lawful reform” limitation fails to take such situations intoaccount.
The case law offers little help in resolving this conflict or in clarify-ing what the consequences of conscientious noncompliance are underthe codes of ethics. There are few instances on record in which prac-ticing attorneys have committed civil disobedience and been subjectto disciplinary proceedings.59 Professor Monroe Freedman provides apersonal account of what is perhaps the prototypical example of at-torney civil disobedience. Freedman writes that he “openly violatedthe rules against advertising and solicitation, intentionally courtingdisciplinary action, because [he] believed that those rules deprivedpoor and unsophisticated people of essential information abouttheir rights.”60 The District of Columbia Bar Association brought dis-ciplinary charges against Professor Freedman, but eventually agreedwith his position and issued “the first opinion anywhere approving ad-vertising and solicitation of clients.”61 He notes that “[w]hen asked by
1636-37 (1996) (arguing that client confidentiality should be violated in the face of theloss of an innocent life). Perhaps the best known example of a life-or-death profes-sional ethics problem occurred in Spaulding v. Zimmerman, 116 N.W.2d 704 (Minn.1962). Attorneys for a defendant in a personal injury suit involving a car accident dis-covered that the plaintiff had a potentially fatal aneurysm which may or may not havebeen caused by the accident. Id. at 707. It was clear that the plaintiff was unaware ofthe condition. Id. at 708. The defense attorneys completed settlement negotiationsand never informed the plaintiff of the aneurysm, out of respect for their client’s in-terests in the case. Id.
57In 2002, Rule 1.6 of the Model Rules was amended to permit breaches of client
confidentiality in order “to prevent reasonably certain death.” MODEL RULES OFPROF’L CONDUCT R. 1.6(b)(1). The change in this Rule illustrates that the law govern-ing attorneys, like other positive law, can and should evolve to accommodate overrid-ing moral principles.
58I assume that, in this situation, an attorney’s “noisy withdrawal” would not have
been helpful to the innocent defendant. See id. R. 1.16 cmt. 7 (noting that an attorney,in such situations, might be permitted to withdraw representation).
59See Daly, supra note 34, at 1628 (noting that the author had “located no in-
stances of civil disobedience directed to the judicial branch in its capacity as the regu-lator of the legal profession”); Griffin, supra note 50, at 1260 n.17 (admitting that theauthor did “not know how often civil disobedience ha[d] been invoked in disciplinarysettings”).
60Freedman, supra note 2, at 1137.
61Id. Professor Freedman also writes that he engaged in civil disobedience several
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reporters and others how I, as a lawyer, could commit civil disobedi-ence, I answered, ‘I was a free person, with moral responsibility, be-fore I was a lawyer.’”62
Some lawyers have raised a civil disobedience defense to lawbreak-ing that courts found lacking in moral justification.63 Though suchdefenses were unsuccessful, the willingness of courts and disciplinaryboards to consider them suggests that there may indeed be a role forconscientious disobedience in professional ethics cases. One state barcommittee stated that “a single act of civil disobedience did not callinto question an attorney’s fitness to practice law,” but that “frequentand/or continual misdemeanor convictions of this nature may resultin more serious professional consequences.”64
The treatment of applicants for admission to the bar provides afair—though imperfect—comparison of how the rules of ethics areinterpreted with regard to civil disobedience.65 The certificationprocess is analogous to disciplinary proceedings in that state bars re-quire applicants, like their members, to be of good moral charac-ter.66 Criminal conduct in both contexts reflects on an attorney’smoral fitness because it shows a lack of respect for the law.67 The re-
times to protest the Vietnam War, but does not mention whether disciplinary actionresulted from these acts. Id. at 1138.
62Id. at 1138.
63See In re Preston, 616 P.2d 1, 4 (Alaska 1980) (noting that the Disciplinary Board
of the Alaska Bar Association concluded that an attorney’s distribution of drugs wasnot an act of civil disobedience intended to change the law); In re Disciplinary ActionAgainst Stanbury, 561 N.W.2d 507, 511 (Minn. 1997) (rejecting attorney’s claim thathis failure to pay court fees was an act of civil disobedience and holding that “it is notthe system that is in need of reexamination and reform,” but rather the defendant).
64McMorrow, supra note 38, at 154 (citing Virginia Legal Ethics Opinion No. 1185,
VA. LAW. REGISTER, Oct. 1989, at 14).65
The comparison between the certification process and disciplinary proceedingsis limited by the fact that certification is based on more stringent requirements thandisciplinary review. See Deborah L. Rhode, Moral Character as a Professional Credential,94 YALE L.J. 491, 547 (1985) (describing the “double standard” between the admissionand disciplinary processes that results because “both substantive and procedural re-quirements are more solicitous of practitioners than applicants”). Consequently, ille-gal conduct is more likely to be flagged during an admissions inquiry as a sign of moraldeficiency than in the context of disciplinary action against a practicing attorney.
66See Konigsberg v. State Bar of Cal., 353 U.S. 252, 273 (1957) (recognizing the
importance of allowing state bars to select their own members, but adding that thesemembers should be of good character); MODEL CODE OF PROF’L RESPONSIBILITY EC 1-2 (stating that applicants to the bar who are deficient in moral standards are not quali-fied); Rhode, supra note 65, at 546 (“[T]he justification for regulating the personalbehavior of licensed attorneys is in many respects analogous to that underlying the cer-tification process.”).
67See Rhode, supra note 65, at 537 (noting that applicants are often rejected from
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sponse of bar committees to applicants with civil disobedience intheir background varies widely. Some states see politically or morallymotivated lawbreaking as deeply problematic for bar admission,while others see it as almost admirable.68 The California SupremeCourt, for example, held that an applicant’s multiple arrests in thecontext of the civil rights movement did not disqualify him from thepractice of law, noting that such noncompliance might be consid-ered a product of “the highest moral courage.”69 By contrast, Illinoisdenied admission to a conscientious objector to World War II on thegrounds that his pacifist views prevented him from complying with astate constitutional requirement that applicants serve in the state’smilitia during time of war.70 Thus, while the treatment of bar appli-cants suggests that there is some tolerance of civil disobedienceamong the bars, the states differ too widely in this respect to drawany clear lessons.
Part of the difficulty in determining the consequences of civil dis-obedience under the rules of ethics is simply that the codes them-selves, like nearly every other form of positive law, are subject to manyreasonable interpretations.71 To prohibit illegal conduct that involves“moral turpitude”72 or “reflects adversely on the lawyer’s honesty,trustworthiness or fitness as a lawyer”73 invites the disciplinary boardsto inject subjective values, including their own sense of morality, into
bar admission due to illegal activities, “regardless of the likelihood of their repetitionin a lawyer-client relationship,” because they “would demean the profession’s reputa-tion”). The primary difference between disciplinary procedures and bar admissioninquiries is that in the former, the bar bears the burden of showing the attorney’smoral deficiency, while in the latter, applicants bear the burden of showing their ownmoral fitness. See Hallinan v. Comm. of Bar Examiners, 421 P.2d 76, 80 (Cal. 1966)(stating that applicants to the bar bear the burden of showing moral fitness, while thebar bears the burden of proving attorneys are unfit during disciplinary hearings);Rhode, supra note 65, at 547 (same).
68See Rhode, supra note 65, at 542-43 (describing the variety of reactions to an ap-
plicant’s arrest in connection with political activity among the bars of Arkansas, Cali-fornia, Idaho, Missouri, New York, Nevada, and Virginia).
69Hallinan, 421 P.2d at 87.
70See In re Summers, 325 U.S. 561, 571-73 (1945) (affirming the Illinois Supreme
Court’s rejection of the University of Pennsylvania Law School’s beloved ProfessorClyde Summers from the bar).
71See Strassberg, supra note 23, at 901 (arguing that the “modern articulation of
legal ethics as positive law” might “seriously undermine the justification” for engagingin civil disobedience).
72MODEL CODE OF PROF’L RESPONSIBILITY DR 1-102(A)(3); see also id. EC 1-5 (de-
claring that attorneys should “refrain from all illegal and morally reprehensible con-duct”).
73MODEL RULES OF PROF’L CONDUCT R. 8.4(b).
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their review. It should hardly be surprising, then, that the record ofapplying the rules provides few definitive answers.
The secondary literature also does little to narrow the range of in-terpretations of the Model Rules and Model Code. Some commenta-tors argue that the ethics codes obviously prohibit any conscientiousdisobedience.74 Others seem to suggest that one can fairly understandan attorney’s professional obligation to permit civil disobedience.75
Most acknowledge that the various rules contain ambiguities that al-low for considerable “interpretive leeway” on the issue.76
Without clear indications of the consequences of conscientiouslawyer noncompliance in the codes of ethics, the case law, or the sec-ondary literature, the most honest—and realistic—resolution to theissue is that the disciplinary prosecutors who enforce the rules cur-rently retain enormous discretion as to how to treat civil disobedi-ence.77 Though perhaps intellectually unsatisfactory, this conclusionshould hardly be surprising. We accept the propriety of prosecutorial
74See, e.g., Luban, supra note 22, at 796 (claiming that under the Model Rules, “a
lawyer who engages in conscientious disobedience to law is no better than a streetcriminal, and indeed may be worse if her conscientious disobedience arises from anideology that is hostile to the American legal system”); Simon, supra note 45, at 424(noting that there is “no tolerance . . . for civil disobedience” in the rules of profes-sional ethics).
75See, e.g., Cowen, supra note 2, at 597 (noting that a lawyer could theoretically
“stand on the same footing as the nonlawyer” in committing civil disobedience).76
Terrell, supra note 28, at 831; see also McMorrow, supra note 38, at 151 (“Both[the Model Rules and Model Code] contain broad ambiguities.”).
77See Strassberg, supra note 23, at 905 (“The actual application of ethical rules
suggests a far less rigid construction than might be assumed. Bar associations and statedisciplinary institutions . . . do not necessarily display the rigid adherence to the lim-ited reach of a rule or specified exceptions which a formalist approach to the ruleswould dictate.”). But cf. Bruce A. Green, Lawyer Discipline: Conscientious Noncompliance,Conscious Avoidance, and Prosecutorial Discretion, 66 FORDHAM L. REV. 1307, 1311 (1998)(“[T]he extent of disciplinary prosecutors’ discretion may be especially limited be-cause they lack the independence of criminal prosecutors.”).
Some commentators have noted that the benefits of prosecutorial discretion maybe far greater in cases involving attorneys in large firms. See, e.g., Steven France, Canthe Bar Regulate the Large Firms?, LEGAL TIMES, Jan. 31, 1994, at 28 (noting that the widediscretion in disciplining prominent attorneys raises serious questions about whetherthe bar is willing or able to regulate attorneys at large firms, or whether its disciplinarypower is directed only at “the occasional stray solo practitioner who pockets moneyfrom a client’s escrow account”); Susan P. Koniak, Who Gave Lawyers a Pass?, FORBES,Aug. 12, 2002, at 58, 58 (noting that the bar’s disciplinary authorities “would be ab-surdly outgunned” when attempting to discipline attorneys at large firms). This raisesimportant questions about the bar’s disciplinary process that are beyond the scope ofthis Comment.
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discretion in the criminal justice system as a check on unfair laws.78 Itis certainly possible that the dearth of case law in this area is influ-enced by prosecutors turning a blind eye to conscientious disobedi-ence. And as Professors Geoffrey Hazard and William Hodes havenoted, bar authorities undoubtedly approach attorney civil disobedi-ence with sensitivity to the moral context of the lawbreaking.79 In aself-regulated profession in which moral judgment and political inde-pendence are prized,80 we should expect—and respect—such sensitiv-ity.
Of course, it would be discomforting to any attorney contemplat-ing civil disobedience that her professional fate is left to the discretionof a prosecutor with a moral compass potentially different from herown. Attorneys committing civil disobedience currently risk discipli-nary actions that include temporary or permanent disbarment.81 It isclear from this discussion that there is some tolerance, though perhapsonly unspoken, of the role of civil disobedience by attorneys.82 Thismay be cold comfort, however, given the stakes at play for lawyers.
III. REFUTING THE ARGUMENTS AGAINSTATTORNEY CIVIL DISOBEDIENCE
Critics of attorney civil disobedience note that there is far more atstake when lawyers break the law than simply the consequences for anattorney’s career. They argue that noncompliance by the bar has po-tentially much broader costs to the legal profession, to society, and tothe law itself. In their minds, attorney civil disobedience is inappro-priate in a legal system that is “generally just, even though not per-
78See, e.g., Simon, supra note 23, at 226 (“Prosecutorial nullification is widely con-
sidered legitimate in circumstances where the application of a statute produces an es-pecially harsh or anomalous result or where an entire statute, usually an old one,seems out of tune with contemporary sentiment . . . .”).
79HAZARD & HODES, supra note 32, § 9.20 (arguing that it is unlikely that bar
authorities would discipline an attorney for violating the rules of ethics to save a life).80
See supra text accompanying notes 53-54 (highlighting the ethics rules’ emphasison an attorney’s personal conscience); see also Konigsberg v. State Bar of Cal., 353 U.S.252, 273 (1957) (“It is also important both to society and the bar itself that lawyers beunintimidated—free to think, speak, and act as members of an Independent Bar.”).
81See supra note 46 and accompanying text; cf. Luban, supra note 28, at 259 (argu-
ing that the Model Code and Model Rules should be amended to permit lawyers tocommit civil disobedience without jeopardizing their licenses).
82See supra text accompanying notes 63-69 (discussing the various ways in which
the bar has recognized there may be some tolerance of conscientious disobedience byattorneys).
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fect.”83 Thus, regardless of whether attorneys can commit civil disobe-dience under the ethics rules, it remains contested whether theyshould.
In this section, I will respond to the four major arguments againstcivil disobedience by analyzing the relationships among the legal pro-fession, the law, and the public. When these relationships are prop-erly understood, it becomes clear that none of these institutions wouldbe threatened by an ethics regime that explicitly tolerated attorneycivil disobedience.
A. Attorney Civil Disobedience and Respectfor the “Rule of Law”
The first major objection to attorney disobedience is that it sig-nificantly weakens the law’s normative power.84 Because the law’sauthority depends in large part on the willingness of individuals in oursociety to accept and obey it, erosion of respect for the “rule of law” isa serious threat to our legal system.85 Critics of attorney disobedienceclaim that attorney attitudes toward the law “rub off” on nonlawyers.86
Citizens take cues from attorneys when developing their own sense ofobligation to respect the law. Attorneys who disobey the law—evenconscientiously—convey to the lay public the potentially dangerousmessage that the law should be ignored when an individual deems itappropriate to do so.
Related to this claim is the concern that attorney disobedience hasa second, more direct effect on the authority of our legal system.While it is deeply problematic for the average citizen not to feel par-ticularly obligated to follow the law, it would be disastrous if the barhad the same lax attitude.87 Attorneys are judicial actors whose role is
83Terrell, supra note 28, at 834.
84See id. at 835 (“[D]isobedience to the legal and ethical rules of the [legal] sys-
tem necessarily undermines the system’s claim to legitimacy.” (emphasis omitted)).85
See MURPHY & COLEMAN, supra note 8, at 29 (stating that a stable legal order re-quires that the majority of citizens must view the laws “as standards of criticism and jus-tification”).
86See David B. Wilkins, In Defense of Law and Morality: Why Lawyers Should Have a
Prima Facie Duty to Obey the Law, 38 WM. & MARY L. REV. 269, 292 (1996) (“[T]he atti-tudes that lawyers convey about the law are likely to rub off on their clients, therebymultiplying the effects of lawyer noncompliance. Even nonclients are likely to pick upimportant messages about the appropriate moral standing of law from the conduct oflawyers.” (footnote omitted)).
87See HART, supra note 13, at 116-17 (arguing that judicial actors must accept the
internal perspective of the legal system in which they operate); MURPHY & COLEMAN,
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to implement and interpret the laws. A legal system in which lawyersfelt no particular commitment to the rule of law would be ineffectiveat enforcing social norms and likely unstable. Increasing tolerance forattorney civil disobedience might lead individual attorneys to becomeoverly emboldened to make their own judgments about which lawsdeserve respect and which ones do not.88 This could greatly under-mine the consistency and effectiveness of the legal system.
In short, critics charge that attorney lawbreaking “is likely to havelarger negative consequences than similar actions” by nonlawyers.89
Civil disobedience may be acceptable for citizens, but legal ethicsshould not lightly tolerate lawyer noncompliance because it signifi-cantly undermines our society’s respect for the legal system and therule of law. Such arguments appear to mirror the reasoning of theprovisions in the Model Rules and Model Code, which emphasize that“respect for the law should be more than a platitude” for attorneys.90
Attorneys have a special relationship to the law that gives them a spe-cial responsibility to obey it.
Such claims certainly have some merit. One can vividly imaginethe injustice of a legal system in which lawyers routinely violate the lawthemselves. Moreover, the actions of attorneys undoubtedly affect theattitude of others towards the law. Nevertheless, there are severalcounterarguments to this position—both theoretical and practical—that significantly undermine its criticism of attorney civildisobedience.
1. Civil Disobedience DemonstratesRespect for the Law
The first response to the claim that lawyer noncompliance weak-ens respect for the law is based on the very nature of civil disobedi-ence. As Dr. Martin Luther King, Jr. wrote in his Letter from Birming-ham Jail, “an individual who breaks [a] law that conscience tells him isunjust, and who willingly accepts the penalty of imprisonment in or-der to arouse the conscience of the community over its injustice, is inreality expressing the highest respect for the law.”91 By submitting
supra note 8, at 29 (noting the importance of judicial actors respecting the normativepower of the law).
88Cf. Luban, supra note 22, at 809 (arguing that lawyers may commit civil disobe-
dience because they are “obligated to respect the law only when the law deserves re-spect”).
89Wilkins, supra note 86, at 292.
90MODEL CODE OF PROF’L RESPONSIBILITY EC 1-5.
91KING, supra note 10, at 83-84.
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oneself voluntarily to the legal system’s judgment, one recognizes andaffirms the law’s authority and the legal obligations it imposes, evenwhile protesting its morality.92 This aspect of civil disobedience doesnot change simply because it is a lawyer who commits it.
Civil disobedience puts a choice to the authority figures it chal-lenges: punish the lawbreaker and affirm the value of the rule; disas-sociate from the system because it is unjust; or acknowledge mistake inthe rule and change it.93 Far from weakening the law’s authority, civildisobedience affords the state an opportunity to strengthen its norma-tive power. In response to conscientious lawbreaking, the legal systemreevaluates the rule that was violated, struggles with the moral issues itimplicates, and strengthens the legal obligation imposed by affirmingthe law and punishing the lawbreaker. It is true that a judicial pro-nouncement radically out of line with a society’s common moralitymay undermine the public’s sense that the law in question is just anddeserving of respect, but this is in no way exacerbated by the fact thatthe lawbreaker is an attorney.
92See Leubsdorf, supra note 4, at 938-39 (describing the respect with which Gan-
dhi submitted himself to the law’s judgment as an important part of his philosophy).In contrast, David Luban has argued for what I believe is a more radical view of civildisobedience. He claims that citizens and lawyers are “obligated to respect the lawonly when the law deserves respect.” Luban, supra note 22, at 809. “When the law isevil, unfair, or hopelessly stupid . . . the obligation [to obey it] vanishes and disobedi-ence is in order.” LUBAN, supra note 37, at 35. While such rhetoric is similar to that oftraditional civil disobedience, it differs significantly by opening the door to the claimthat immoral laws impose no legal obligation on citizens. Luban’s position all but col-lapses the distinction between moral and legal obligation. See Luban, supra note 22, at809 (suggesting that the “ground of [legal] obligation lies in some morally relevantproperty of laws”).
This approach is much closer to the traditional natural law perspective—i.e., thatan unjust law is not a valid law—than it is to my operative conception of civil disobedi-ence, under which one recognizes a valid legal obligation that is simply trumped by acompeting moral duty. See id. at 801-02 (arguing that the law implies a “utopian ideal”and acknowledging the similarity between his position and natural law); id. at 806 (stat-ing that lawyers should consider the “natural-law legality” of a contested law when con-sidering whether to take a case). The understanding of civil disobedience I have inmind here, however, is decidedly not based on natural law. By willingly accepting pun-ishment from the legal system, a conscientious objector recognizes a law’s legal validityand separates her moral obligations from her legal ones. Such a separation has astrong positivist flavor to it, in spite of the moral protest involved. See HART, supra note13, at 210 (arguing that morally iniquitous laws may still be valid, but that the legal ob-ligations they impose can be overcome by nonlegal, moral inquiry).
93See Freedman, supra note 2, at 1137 (explaining how the author’s civil disobedi-
ence forced the bar to change an ethics rule); Leubsdorf, supra note 4, at 932 (re-counting Gandhi’s statement that a judge must either inflict punishment on the law-breaker or disassociate from the “evil” law at issue).
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An example of the opportunity conscientious lawbreaking offersto strengthen legal obligation is provided by the case of Alabama Su-preme Court Chief Justice Roy Moore, who defied a federal injunctionthat ordered him to remove a monument of the Ten Commandmentshe had placed at the courthouse.94 While there are unique aspects ofMoore’s case that distinguish it from the typical conscientious disobe-dience,95 the matter is fairly comparable to attorney civil disobediencefor the purposes of evaluating its effect on public respect for the law.In both cases, the defiance is public, based on a moral objection tothe law, and committed by a judicial actor.
Chief Justice Moore’s defiance provided the federal and state ju-diciaries with the opportunity to strengthen the rule of law. The fed-eral judiciary affirmed the importance of the First Amendment’s pro-tection of separation of church and state, and the Alabama statejudiciary reinforced the principle that “[n]o man in this country is sohigh that he is above the law.”96 Regardless of one’s moral views aboutMoore’s actions, the incident left no doubt as to his legal obligationsunder the First Amendment. As one might expect in a pluralistic so-ciety, Moore had strong supporters whose respect for the law andsense of duty to it was shaken by the incident.97 But for other citizens,
94See Pryor, supra note 2, at 1 (“On August 14, 2003, Chief Justice Roy Moore an-
nounced that he would not obey an injunction of the U.S. District Court for the Mid-dle District of Alabama to remove a monument with a depiction of the Ten Com-mandments from the rotunda of the State Judicial Building.” (footnote omitted)); seealso Stan Bailey, Moore Kicked Off State’s High Court: ‘No Man . . . Is So High as to Be Abovethe Law,’ Court Rules, BIRMINGHAM NEWS, Nov. 14, 2003, at A1 (describing the conse-quences of Justice Moore’s defiance of the federal injunction).
95For starters, there is a genuine question as to whether or not Chief Justice
Moore’s defiance actually qualifies as justified civil disobedience. See Pryor, supranote 2, at 2 n.7 (noting that Moore himself was equivocal about whether his actionsconstituted justified civil disobedience); Anthony J. Sebok, Ten Commandments DefianceDoesn’t Meet Civil Disobedience Test, CNN.COM, Aug. 26, 2003 (arguing that Moore’s de-fiance was not justified civil disobedience), available at http://www.cnn.com/2003/LAW/08/26/findlaw.analysis.sebok.commandments. In addition, Moore’s posi-tion as a judge distinguishes his disobedience from that of a private citizen. See Pryor,supra note 2, at 8 (observing that Moore’s moral position was different from Dr. MartinLuther King, Jr.’s in part because Moore was a public official); Sebok, supra (arguingthat Moore had a “special obligation to obey the law and to obey duly adjudicated in-terpretations of the law” because he was a judge).
96In re Moore, No. 33, slip op. at 9 (Ala. Ct. of the Judiciary Nov. 13, 2003) (quot-
ing United States v. Lee, 106 U.S. 196, 220 (1882)), available at http://www.judicial.state.al.us/documents/final.pdf, aff’d, Moore v. Judicial Inquiry Comm’n,No. 1030398, 2004 WL 922668 (Ala. Apr. 30, 2004).
97See Pryor, supra note 2, at 2 (referring to Moore’s supporters); Bailey, supra note
94 (describing the support Moore received even after his punishment by the AlabamaCourt of the Judiciary).
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particularly those who take their cues about the law’s validity and wor-thiness from the judicial system itself, the lesson of Moore’s defiancewas that he violated a fundamental principle of our society and thatthe judicial system responded by disciplining him accordingly. Thelaw functioned fairly and efficiently, dealing with Moore as it wouldhave another lawbreaker without his considerable official stature.Surely this was a victory for the rule of law, not a defeat.
2. The Double Standard for Judging Attorney Civil Disobedienceand Routine Legal Practices
There is something particularly hollow about the claim that attor-ney civil disobedience weakens respect for the law in light of manycommon practices that we expect and encourage in the name of“zealous representation.”98 As a matter of course in their daily work,lawyers seek to utilize the law to the advantage of their clients, often atthe expense of the public good, a law’s clear purpose, or the interestof justice.99 Attorneys exploit loopholes in the tax code,100 structuretransactions to avoid pesky regulations,101 and argue for far-fetchedconstructions of the law to further client interests.102 After the col-lapse of Enron, the public learned that it was “routine” (though per-
98See MODEL CODE OF PROF’L RESPONSIBILITY Canon 7 (“A Lawyer Should Repre-
sent a Client Zealously Within the Bounds of the Law”).99
See Robert W. Gordon, The Independence of Lawyers, 68 B.U. L. REV. 1, 10 (1988)(noting that lawyers “are expected and even encouraged to exploit every loophole inthe rules, take advantage of every one of their opponents’ tactical mistakes or over-sights, and stretch every legal or factual interpretation to favor their clients”); StephenF. Smith, Cultural Change and “Catholic Lawyers,” 1 AVE MARIA L. REV. 31, 48 (2003)(“‘[J]ustice’ to the contemporary lawyer is whatever his client wants to achieve andnothing more.” (emphasis omitted)); Mike France, Commentary, Close the Lawyer Loop-hole, BUS. WK., Feb. 2, 2004, at 70, 70 (characterizing attorney advice on risky tax shel-ters as a “get-out-of-jail-free card” for clients).
100See George Cooper ed., The Avoidance Dynamic: A Tale of Tax Planning, Tax Eth-
ics, and Tax Reform, 80 COLUM. L. REV. 1553, 1555-60 (1980) (recounting a debateabout the ethics of aggressive representation and “tax avoidance”); David B. Wilkins,Legal Realism for Lawyers, 104 HARV. L. REV. 468, 520-21 (1990) (describing the practiceof tax attorneys giving clients advice that furthers client interests, regardless of whetherthe advice is contrary to the public purpose of the tax code).
101See Deborah L. Rhode & Paul D. Paton, Lawyers, Ethics, and Enron, 8 STAN. J. L.
BUS. & FIN. 9, 17-24 (2002) (describing the role of attorneys in structuring the transac-tions that later forced Enron into bankruptcy); see also Koniak, supra note 77, at 58(“[W]ithout lawyers few scandals would exist, and fewer still would last long enough tocause any real harm.”).
102See MODEL CODE OF PROF’L RESPONSIBILITY EC 7-4 (permitting attorneys to ar-
gue in favor of any construction of the law, without regard “to the likelihood that theconstruction will ultimately prevail”).
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haps not legal) for lawyers to give advice that would have the effect offrustrating federal investigations.103 A century ago, future Justice LouisBrandeis noted that it increasingly seemed to be the project of attor-neys to “evade or nullify the extremely crude laws by which legislatorssought to regulate the power or curb the excesses of corporations.”104
The messages sent by the legal profession through such represen-tation are clear: a client’s interest supercedes the public interest; thelaw is vulnerable to seemingly endless manipulation; even the clearestof legal duties is subject to debate.105 The effect of such messages,conveyed to the public by nearly every aspect of the modern legal pro-fession, is unquestionably significant to our society’s attitude towardsthe law. Lawyers who stretch the fabric of the law to its breaking pointwhile representing clients seek to reshape the applicability of a legalduty to fit their client’s interests, which may overlap with the publicgood—but only coincidentally.106 Such representation strips the law ofits veneer of generality, the characteristic that is most critical to oursociety’s internal sense of obligation to the law.107 Such a pervasive at-titude in the legal profession must weaken our society’s respect for therule of law at least as much as it is purportedly weakened by attorneycivil disobedience, by which lawyers demonstrate their devotion to the
103See Rhode & Paton, supra note 101, at 24 (describing the profession’s reaction
to the actions of Nancy Temple, the in-house Arthur Andersen attorney whose adviceduring the Enron affair eventually helped lead to the firm’s downfall).
104Louis D. Brandeis, The Opportunity in the Law, Address to the Harvard Ethical
Society (May 4, 1905), in BRANDEIS ON DEMOCRACY 52, 57 (Philippa Strum ed., 1995).105
These attitudes are central to an attorney’s education during law school. Asone commentator noted of his own law school experience:
Legal writing was . . . the assembly of new, partisan structures from the variouscomponents discovered in the process of deconstructing relevant cases. Itdidn’t matter, apparently, that these new structures were routinely built ofblocks intended for entirely different purposes, that ill-fitting componentswere mangled or left out, that the completed structure often served the law-yer’s purposes as much as his client’s. The point was to create a building thatlooked better than one’s opponents’ . . . even if it was just a house of cards.
CHRIS GOODRICH, ANARCHY AND ELEGANCE: CONFESSIONS OF A JOURNALIST AT YALELAW SCHOOL 95 (1991); see also Robert Granfield & Thomas Koenig, “It’s Hard to be aHuman Being and a Lawyer”: Young Attorneys and the Confrontation with Ethical Ambiguityin Legal Practice, 105 W. VA. L. REV. 495, 501 (2003) (“Law school teaches students tobecome tough-minded, hyper-rational, and insensitive to issues beyond the interests oftheir client—a perspective that undermines ethical decision-making.”).
106See Pepper, supra note 37, at 1554 (arguing that the legal profession’s approach
to the law “may lead the client to respect the law less”).107
See LUBAN, supra note 37, at 48-49 (“[T]he principle of partisanship in the legalprofession threatens to undermine the generality of law and thus to abrogate themoral authority of law. It is only its generality, its fairness, that elevates law from a co-ercive system to a system exerting moral—and not just physical—force.”).
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public interest and affirm the legal authority of the law by willingly ac-cepting punishment.
Critics of lawyer civil disobedience seem to apply two sets ofrules to attorney actions that affect respect for the law. They fearthe effect of morally motivated noncompliance by attorneys, but de-fend a model of the profession that sacrifices respect for the gener-ality of law to a client’s interests. This apparent inconsistency is notmerely a product of applying different standards to attorney actionstaken while representing a client than to actions taken in one’s in-dividual capacity.108 For example, in the context of criticizing attor-ney disobedience, Professor Timothy Terrell also condemns the de-velopment of a “duty-based” practice of law, which emphasizessociety’s interests over those of one’s clients.109 Terrell cites severalexamples of the trend toward duty-based lawyering that he findsparticularly troubling, including recent strategies to hold attorneysaccountable for their role in questionable transactions within thehealthcare industry, as well as the Sarbanes-Oxley Act’s requirementthat attorneys breach confidentiality to prevent securities fraud.110
Whatever one thinks about the merit of these attempted reforms ofthe legal profession, it is clear that they were intended to rehabili-tate our society’s respect for and trust in the law after instances inwhich attorneys’ advocacy for their clients seemed to go too far.111
Thus, Terrell’s criticism of these changes, juxtaposed with his fearthat attorney civil disobedience will weaken respect for the law,112 isperplexing.
I should not be misunderstood as taking a position directly on thequestion of whether it is proper for attorneys to engage in so-called“aggressive lawyering” in their clients’ interests. There are strong ar-guments that keeping the interests of clients at the center of attorneyadvocacy helps the law to evolve and improve for the benefit of soci-ety. It is a model that protects a client’s autonomy and provides acheck on the power of the state.113 My critique is limited to noting the
108See Terrell, supra note 28, at 847 (defining attorney civil disobedience to in-
clude violations of ethics rules committed to protect a client’s interests).109
See id. (stating that a duty-based practice of law would fundamentally changethe legal profession).
110See id. at 848-51 (listing examples of duty-based lawyering).
111See id. at 850 (finding that the Sarbanes-Oxley provision was enacted to
strengthen investor confidence and trust in the securities laws).112
See supra note 84.113
See, e.g., Stephen Ellmann, Lawyering for Justice in a Flawed Democracy, 90 COLUM.L. REV. 116, 176-81 (1990) (reviewing LUBAN, supra note 37) (arguing that Luban’s
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inconsistency of those who claim that attorney civil disobedience isflawed because it weakens respect for the law while simultaneously de-fending routine practices of lawyers that likely have a more adverse ef-fect on the rule of law. Civil disobedience and aggressive lawyeringimplicate the same interests: improvement of the law and resistanceto the state’s potential for injustice. These goals either outweigh theneed for attorneys to protect the public’s respect for the law, or theydo not. If they do, however, they should do so in both contexts.
3. The Inconsistent Position of the Organized Baron Attorney Civil Disobedience
Past actions by the organized bar cast doubt on how seriously oneshould take its insistence in the Model Rules and Model Code that at-torneys display an almost sacred respect for the law.114 When it comesto the law governing lawyers, the bar has demonstrated far less respectfor the law than one might assume based on its pronouncements inthe codes of ethics. According to Professor Susan Koniak, the bar has“flouted and bypassed court attempts to articulate the law governinglawyers . . . [and] used its own power to insist on a law that divergesfrom the ‘official’ law articulated by the courts.”115 In so doing, thebar has suggested that respect for the state’s law appropriately takes aback seat to other considerations in certain instances.
At various times in recent history, the bar has asserted its claim toself-regulation when threatened with increased government oversight.116
On occasions when the government has regulated lawyers over the ob-jections of the legal profession, the bar has directly resisted the newrules. When state courts began to require attorneys to violate tradi-tional rules of client confidentiality to prevent fraud, the ABA—ratherthan accept and respect the determination of the judiciary—insistedthat the profession was under no such obligation.117 The bar’s resis-
proposal to restrict the partisanship of lawyers when such partisanship violates com-mon morality would severely interfere with client autonomy).
114See supra text accompanying notes 39-46 (describing the strong emphasis in the
Model Rules and Model Code that attorneys demonstrate respect for the law).115
Susan P. Koniak, When Courts Refuse to Frame the Law and Others Frame It to TheirWill, 66 S. CAL. L. REV. 1075, 1092 (1993).
116See Koniak, supra note 77, at 58 (“Twice in its history [the SEC] had gotten se-
rious about regulating the bar. Both times the bar beat the agency back.”); Koniak,supra note 115, at 1091 (describing the reaction of the bar to the government’s prose-cution, in the early 1990s, of the law firm Kaye Scholer for its participation in the Lin-coln Savings and Loan scandal).
117See Koniak, supra note 115, at 1094-96 (describing the bar’s extensive struggle
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tance included an acknowledgement that “lawyers may (and perhapseven should) refuse to comply with lower court orders requiring dis-closure of information that the lawyer believes to be confidential, evenin circumstances in which the clear weight of legal authority mandatesdisclosure.”118 In 1989, when the IRS requested attorneys to reportcash payments in excess of $10,000, “[t]he vast majority of lawyers re-ceiving the IRS demand letter refused to comply.”119 No cry issued inresponse from the organized bar about the importance of respectingthe rule of law; far from it. In fact, bar leaders encouraged attorneysto continue their resistance.120
In other words, notwithstanding the lofty rhetoric in the ModelCode and Model Rules that “[t]o lawyers . . . respect for the lawshould be more than a platitude,”121 the bar has supported attorneycivil disobedience. Certainly this cannot, and should not, be takenas a general endorsement of noncompliance by the ABA. It should,however, give us some perspective about the consequences of lawyerdisobedience on our society. In real-world applications of the eth-ics rules, even the organized bar has recognized that there are someextralegal principles that outweigh an attorney’s legal duty and herprofessional responsibility to demonstrate respect for the law.While it is conceivable that the bar views the rule of client confiden-tiality as the only principle for which it is worth an attorney break-ing the law, it is more reasonable to believe that there are compet-ing moral precepts of greater worth for which civil disobedience isalso justified.122
with state courts over the issue of disclosure of confidential information).118
Wilkins, supra note 86, at 276-77; see also Koniak, supra note 115, at 1102 (“Eth-ics opinions advising lawyers what to do when faced with state law that appears to re-quire disclosure or some other infidelity to the client suggest that a lawyer is free toignore the weight of court authority.”).
119Susan P. Koniak, The Law Between the Bar and the State, 70 N.C. L. REV. 1389,
1405 (1992).120
See id. at 1406-07 (describing the reactions of leaders of the state and nationalbar associations to the attorney noncompliance); Wilkins, supra note 86, at 277 (“[B]arleaders continue to urge lawyers to defy an IRS regulation requiring lawyers to reportcash payments by clients above a certain amount.”).
121MODEL CODE OF PROF’L RESPONSIBILITY EC 1-5.
122See HAZARD & HODES, supra note 32, § 9.20 (arguing that a lawyer would be jus-
tified in violating client confidentiality in order to save a life).
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4. Isolated Acts of Attorney Civil DisobedienceDo Not Threaten the Rule of Law
A final common-sense response to the claim that attorney civildisobedience will erode respect for the law is that any adverse im-pact on the rule of law from a lawyer’s isolated act of noncompli-ance will be minor.123 Any negative impact on the public would verylikely remain localized for the simple reason that it would be rarefor the disobedience to be publicized more widely.124 Moreover, at-torney civil disobedience is almost certain to remain relatively iso-lated. While nearly every lawyer recognizes flaws in the legal system,few lawyers question the law’s legitimacy so deeply that they wouldresort to noncompliance on more than a rare occasion.125 Evidenceindicates that many attorneys hold views similar to those of theirprivileged clients—hardly the citizens from whom one expects wide-spread civil disobedience.126 One survey reported that only aboutone in every six attorneys in large firms had ever refused an assign-ment or potential work solely because it violated her personal val-ues.127 Such empirical evidence about the attitudes of attorneysstrongly suggests that a codified ethical acknowledgement that somemoral obligations may trump an attorney’s duty to respect the lawwill not open the floodgates to widespread attorney civil disobedi-ence.
123See Wilkins, supra note 100, at 511 (“An isolated act of lawyer nullification does
not threaten the rule of law.”).124
See Fred C. Zacharias, The Lawyer as Conscientious Objector, 54 RUTGERS L. REV.191, 212 n.85 (2001) (“Although lawyer ‘misconduct’ often is publicized in the press,the lawyer’s notoriety typically is limited to the local jurisdiction. The systemic effectsof the lawyer’s conduct will probably be similarly confined.”). There are, of course,exceptions to the general thesis that attorney civil disobedience receives only local at-tention. Cf. supra text accompanying notes 94-97 (discussing the case of AlabamaChief Justice Roy Moore).
125See Kathryn Abrams, Lawyers and Social Change Lawbreaking: Confronting a Plural
Bar, 52 U. PITT. L. REV. 753, 778 (1991) (noting that many lawyers do not “questionthe legitimacy of the legal system,” and that even those who do so do not widely resortto civil disobedience).
126See Wilkins, supra note 100, at 513 (“Empirical evidence indicates that many
lawyers—particularly those representing the powerful—hold views about legal meritthat strikingly resemble the interests of their clients.”). But see Abrams, supra note 125,at 761-66 (arguing that attorneys who represent oppressed or powerless clients are lesslikely to view the legal system as wholly legitimate).
127Robert L. Nelson, Ideology, Practice, and Professional Autonomy: Social Values and
Client Relationships in the Large Law Firm, 37 STAN. L. REV. 503, 534-35 (1985).
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B. Attorney Civil Disobedience and Respect for Lawyers
The second major argument commonly offered against attorneycivil disobedience is that it reduces the public’s respect for the legalprofession. Given that our society generally assumes all citizens have aduty to follow the law, attorney civil disobedience may reflect nega-tively on lawyers generally. The public may trust lawyers less, for fearthat they have their own agenda and that their professional ethics areinadequate.128 Nonlawyers may perceive attorney noncompliance tobe symptomatic of a double standard in the legal profession, wherebylawyers, while ostensibly counseling others to obey the law, feel at lib-erty to disobey it themselves.
Reducing the public’s trust in the legal profession has worrisomeimplications for client service, as well as for the legal system as awhole. Lawyers enjoy power and privileges that are contingent onmaintaining the public’s trust in the profession. A lawyer’s ability toconceal information under attorney-client confidentiality that othercitizens would be required to disclose is just one example of such aprivilege. For the profession to continue justifying such specialtreatment, society must believe that attorneys are people of integ-rity.129 In addition, as trust of lawyers erodes, the legal system be-comes more unstable. Clients must depend on attorneys to honortheir duty of zealous representation;130 judges must rely on lawyers toact as upright “officers of the court” who will play fair while servingtheir clients. The judicial process depends on the trust that all sidesplace in attorneys to uphold their duties. Thus, the charge that law-yer civil disobedience weakens respect for the legal profession is a se-rious concern.
As an initial matter, it should be noted that our society hardlyseems to hold lawyers in high esteem today. A brief survey of the
128See Zacharias, supra note 124, at 211-13 (describing the potential impact of at-
torney defiance on the public’s perception of the legal profession).129
See France, supra note 99, at 70 (relating the character requirements for attor-neys to their extensive power in the legal system). In addition, Professor TimothyTerrell has argued that “[i]f and only if the rule of law has a normative foundationdoes the ‘role’ a lawyer plays as a professional have any moral standing.” Terrell, supranote 28, at 834. Thus, by undermining the public’s sense of duty to obey the lawthrough their acts of civil disobedience, Terrell believes that attorneys weaken the veryaspect of the law that gives them their unique power in the legal system.
130See MODEL CODE OF PROF’L RESPONSIBILITY EC 7-1 (“The duty of a lawyer, both
to his client and to the legal system, is to represent his client zealously within thebounds of the law . . . .” (footnotes omitted)).
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genre of “lawyer jokes” provides a fairly strong indication of this fact.131
Consider just a small sampling:
Question: Why did the research scientist substitute lawyers for rats in hislaboratory experiments?
Answer: Lawyers breed more rapidly, scientists became less attached tothem, and there are some things that rats just won’t do.
132
Q[uestion]: What is the difference between a catfish and a lawyer?
A[nswer]: One is a disgusting, bottom-feeding scavenger, and the otheris just a fish.
133
More methodically gathered evidence confirms that the public hasa negative view of lawyers. In a recent public opinion poll, eighteenpercent of respondents believed that attorneys had high ethical stan-dards. Lawyers were positioned near the bottom of professions in thiscategory, ranking above the likes of car salesmen and advertising prac-titioners but below Congressmen.134 In another survey, only about onein every four people said they trusted lawyers to tell the truth, posi-tioning them nineteenth out of the twenty professions considered.135
While negative social views of the legal profession are hardlynovel,136 the recent highly publicized corporate scandals have furthertarnished the image of attorneys.137 Lawyers played key roles in theEnron, Tyco, and Global Crossing affairs.138 As legal ethics expert Ste-phen Gillers has noted, whereas lawyers would ideally serve as “brakes
131For a survey of this comedic craft, start with Lawyer Jokes, at
http://www.ahajokes.com/lawyer_jokes.html (last visited Dec. 31, 2004); Lawyer Jokesand Cartoons, at http://www.lawyer-jokes.us (last visited Dec. 31, 2004); and http://www.lawyerjokes101.com (last visited Dec. 31, 2004).
132Robert C. Post, On the Popular Image of the Lawyer: Reflections in a Dark Glass, 75
CAL. L. REV. 379, 379 (1987).133
Smith, supra note 99, at 49.134
Gallup Poll, Nov. 19-21, 2004, available at http://www.pollingreport.com/values.htm (last visited Dec. 31, 2004).
135The Harris Poll, Nov. 14-18, 2002, available at http://www.pollingreport.com/
workplay.htm (last visited Dec. 31, 2004).136
See, e.g., LAWRENCE M. FRIEDMAN, A HISTORY OF AMERICAN LAW 94-96 (2d ed.1985) (noting that distrust and resentment of lawyers dates back to colonial times,perpetuating ancient English prejudice); WILLIAM SHAKESPEARE, THE SECOND PART OFKING HENRY THE SIXTH act 4, sc. 2 (“The first thing we do, let’s kill all the lawyers.”).
137See Smith, supra note 99, at 48 (“The image of lawyers reached new lows with
the wave of corporate scandals that shook Wall Street in 2002.”).138
See id. at 48-49 (describing the involvement of lawyers in the Enron and Tycoscandals); Koniak, supra note 77, at 58 (noting that Simpson Thacher & Bartlett’s in-vestigation of a whistle-blower memo about Global Crossing was “even worse than thatby Vinson & Elkins of the Sherron Watkins/Enron memo”).
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on bad conduct,” the reality is that “client pressures have turned [law-yers] into more of a gas pedal.”139
One might argue that the prevalence of such bleak views about at-torneys lends support to the claim that lawyer civil disobediencewould be harmful to the profession. If the bar is on the brink of los-ing the public’s confidence altogether, the last thing we want is thepublic to see attorneys flouting the authority of the law. This conclu-sion is flawed. It overlooks the reasons for the bar’s scarred imageand, consequently, misunderstands the effect of civil disobedience onthe profession.
Evidence suggests that the two ideas that most contribute to thenegative view of attorneys are the impression that they are money-hungry and the belief that they “manipulate the legal system withoutany concern for right or wrong.”140 The common perception is thattoday’s lawyer “all too often strives only to be ‘aggressive’ . . . not inthe pursuit of justice but only in the prurient, self-serving interests ofhis or her own clients.”141 It is hard to imagine how publicity of a law-yer taking a deeply held moral stand, while willingly accepting the le-gal system’s punishment, would add to these negative images of theprofession. On the contrary, such actions display the characteristicsthat the public seems to believe are lacking among lawyers: self-sacrifice, concern for the public interest, and recognition of the ruleof law.
It is significant that among our culture’s most revered images oflawyers are those who protect justice over rigid and impersonal rulesand preserve moral integrity over personal interests. Atticus Finch,perhaps the most dignified lawyer in our shared cultural memory,agrees at the conclusion of To Kill a Mockingbird to lie to the townabout the circumstances of Bob Ewell’s death—that is, to obstruct jus-
139Mike France, What About the Lawyers?, BUS. WK., Dec. 23, 2002, at 58, 59 (quoting
Professor Gillers’s discussion of whether the SEC’s new regulations on lawyers go farenough), available at http://www.businessweek.com/print/magazine/content/02_51/b3813093.htm (last visited Dec. 31, 2004).
140Post, supra note 132, at 380 (noting that 32% of respondents to a 1986 National
Law Journal poll thought that the most negative aspect of lawyers was their interest inmoney, and 22% believed it was their exploitation of the legal system); see alsoCATHERINE CRIER, THE CASE AGAINST LAWYERS: HOW LAWYERS, POLITICIANS, ANDBUREAUCRATS HAVE TURNED THE LAW INTO AN INSTRUMENT OF TYRANNY—AND WHATWE AS CITIZENS HAVE TO DO ABOUT IT 180-98 (2002) (describing how attorneys usemoney to influence the legal and political system, in order for them to make moremoney).
141Smith, supra note 99, at 47-48.
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tice—in order to protect the innocent Boo Radley.142 John Grisham’slawyer-heroes often violate professional ethics to achieve justice.143 Ontelevision’s The Practice, the attorneys repeatedly demonstrate whatWilliam Simon calls “moral pluck,” which often requires them to ig-nore their legal or ethical duties in the interest of what is right.144
Such characters have in common an element of rebelliousness, gener-ally revealed by their willingness to bend or break the strict edicts ofthe law to arrive at the just result. If popularity is any indication, theirdefiance of the law seems to have earned such attorneys our admira-tion, not condemnation.145
Of course, life is not a movie, and I do not argue based on fic-tional works that attorney civil disobedience would actually improvethe public’s respect for the legal profession. I merely claim that it ishighly unlikely that our society would condemn lawyers who commitcivil disobedience because they display precisely the virtues that thepublic seems to want the bar to internalize. We must recognize that,to some extent, the legal profession is in a no-win situation when itcomes to public respect. In an adversarial legal system, in which indi-viduals rely on lawyers to protect their rights, attorneys are both lovedand reviled for the very same thing: strong advocacy of their client’sinterests.146 We hate the fact that, in the words of Vito Corleone,“[l]awyers can steal more money with a briefcase than a thousand menwith guns and masks,”147 but find it far less troubling when they are“stealing” on our behalf. Attorney civil disobedience would not affectthis dynamic one way or another because it appeals to the best view oflawyers as protectors of justice and virtue, especially when it comes
142HARPER LEE, TO KILL A MOCKINGBIRD 274-79 (1960); see also Simon, supra note
45, at 421-22 (characterizing Atticus Finch’s actions as obstruction of justice, but not-ing that it is clear to the audience that Atticus has “do[ne] the right thing”).
143See Simon, supra note 45, at 425-29 (discussing the prototypical role of ethics
violations in John Grisham’s novels).144
See id. at 435-40 (describing the complicated role that morality plays in the tele-vision series).
145See, e.g., CRIER, supra note 140 (dedicating her book to Henry Drummond,
from Inherit the Wind, and Atticus Finch, from To Kill a Mockingbird); Simon, supra note45, at 437-38 (describing a scenario on The Practice in which an attorney flouts profes-sional responsibility norms and noting that “most of us” probably sympathize with andadmire him for it).
146See Post, supra note 132, at 380 (“[L]awyers are applauded for following their
clients’ wishes and bending the rules to satisfy those wishes; and they are at the verysame time condemned for . . . using the legal system to get what their clients want,rather than to uphold the right and denounce the wrong.”).
147MARIO PUZO, THE GODFATHER 220 (1969).
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outside of the client context. Some official tolerance for lawyer non-compliance might not improve the public’s respect for the profession,but it would not weaken it either.
C. Attorney Civil Disobedience and the Bar’sVoluntary Promissory Obligation
The third argument against attorney civil disobedience is thatlawyers have voluntarily agreed to obey the law by choosing theirprofession and agreeing to its ethical norms.148 This contractarianperspective of a lawyer’s duty to the law holds that, even thoughother citizens have a right to commit civil disobedience, attorneyshave a heightened duty to obey the law by virtue of their consciousdecision to become lawyers.149 When attorneys promise to upholdand obey the law, they impose on themselves an additional moralduty that is distinct from every citizen’s obligation to uphold therules of the state. In essence, this argument claims that attorneysfreely forsake the option of future civil disobedience the momentthey take their oaths for the bar.
The emphasis on the legal profession’s promissory obligationto obey the law is inimical to the traditional concept of an inde-pendent bar capable of making free moral and political judg-ments.150 The Supreme Court noted more than forty-five years agothat a “bar composed of lawyers of good character is a worthy ob-jective but it is unnecessary to sacrifice vital freedoms in order toobtain that goal.”151 The freedom to judge, criticize, and resist thestate’s authority is not taken from lawyers by their choice of profes-sion.152
148See Wilkins, supra note 86, at 290 (“[U]nlike ordinary citizens, lawyers have ex-
pressly promised to obey the law. . . . By expressly undertaking this commitment, law-yers have entered into a voluntary agreement with society that, like any other promise,has independent moral weight.”); see also McMorrow, supra note 38, at 142 (noting thatstate bars “may compel a bar applicant to take an oath of office,” which likely includesa promise to uphold the law).
149See Terrell, supra note 28, at 846 (“Lawyers voluntarily join an association that
imposes duties on them.”).150
See Konigsberg v. State Bar of Cal., 353 U.S. 252, 273 (1957) (“It is also impor-tant both to society and the bar itself that lawyers be unintimidated—free to think,speak, and act as members of an Independent Bar.”).
151Id.
152See id. (noting that lawyers must remain “unintimidated,” with the freedom to
act on independent moral and political judgments); see also In re Sawyer, 360 U.S. 622,631 (1959) (“We start with the proposition that lawyers are free to criticize the state ofthe law.”).
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There are compelling reasons to be wary of encroaching on thebar’s independence. Attorneys are among the primary judicial actorswho interpret and implement the law. Their ability to make autono-mous moral assessments of the law and publicly protest an immoralrule is a critical check on injustice in our legal system. The acquies-cence of the legal profession to the tragedies of Nazi Germany vividlyillustrates this point.153 In the aftermath of World War II, scholarsconsidered how the German legal community had “easily succumbedas a willing tool of the Nazis.”154 While no consensus emerged aboutthe cause for the lack of resistance, it was clear that the profession as awhole had prioritized its legal duty to the state more highly than itsmoral obligations, to an appalling end.155 This remains a powerful ex-ample of the dangerous potential that emerges by stripping the bar ofits ability and willingness to resist the state.
The concept of an independent bar presupposes that attorneysdo not forfeit all of their freedom to engage in conscientious dis-obedience simply by joining the bar.156 Lawyers cannot possibly pre-dict every moral problem they will encounter later in practice at thetime they take their oaths.157 The concept of an independent legalprofession would be meaningless if it applied only at the momentan attorney takes an oath, but was negated by that oath. The pur-pose of an independent bar is to provide ongoing vigilance against
153See Simon, supra note 23, at 224 (discussing the dangers to a society when law-
yers pledge “compliance with jurisdictionally adequate but morally evil laws like theNazi enactments requiring reporting Jews and dissidents”).
154Strassberg, supra note 23, at 917.
155See id. at 917-18 (describing the debates among scholars over the role of legal
positivism in Nazi Germany).156
See Zacharias, supra note 124, at 202 n.56 (arguing that attorneys do not forsaketheir right to conscientiously disobey the law when they join the bar).
157Id. There is an argument to be made, based on contract law, that a lawyer may
be released from her oath to obey the law in cases where the state of the law frustratesthe lawyer’s principal purpose of working for justice. See Krell v. Henry, 2 K.B. 740, 748(Eng. C.A. 1903) (releasing defendant from his obligations under a contract whichhad its basic purpose frustrated prior to performance); RESTATEMENT (SECOND) OFCONTRACTS § 265 (1979) (stating the principle of discharge by supervening frustra-tion); supra notes 47-49 and accompanying text (outlining the obligation in the ethicsrules to make the law more just). It is unclear, however, that this argument would havemuch traction in light of the competing principle of assignment of risk in long-termcontracts for foreseeable events. See N. Ind. Pub. Serv. Co. v. Carbon County Coal Co.,799 F.2d 265, 278 (7th Cir. 1986) (stating that the frustration of purpose defense isimproper where the parties have assigned the burden of risk in a contract); Lloyd v.Murphy, 153 P.2d 47, 50 (Cal. 1944) (holding that the risk of a frustrating event that isreasonably foreseeable is assumed and cannot be grounds for a frustration of purposedefense).
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future injustice. Lawyers must make moral judgments about the lawas it changes, not as it was when they agreed to uphold it in theiroath.
Professor Freedman notes that an attorney remains “a free person,with moral responsibility,” despite taking the oath for admission to thebar.158 Attorneys unavoidably assume a measure of moral responsibil-ity for the substantive outcomes of the law because they “exercisequasi-legislative power in deciding whether a given legal commandapplies to a particular case.”159 Given this responsibility, it is reason-able to expect that the concept of attorney independence would alsogive attorneys some autonomy over the decision to resist an unjustlaw.160 Civil disobedience is an accepted form of protest by other citi-zens and a critical tool for attorneys to prevent injustice that is notremoved by an oath.161 The voluntary decision to join the bar cannotalone strip lawyers of this freedom.
D. Attorney Civil Disobedience and the Bar’sPrivileged Position
The final argument against attorney civil disobedience is basedon the fact that lawyers enjoy far more power within the legal systemthan other citizens. Some critics of lawyer noncompliance claimthat the additional opportunities attorneys have to initiate reformlawfully make their civil disobedience unjustified.162 Actions thatmight be defensible if taken by a nonlawyer are inappropriate forlawyers, who have far greater legal options at their disposal.163
Other commentators argue that the power attorneys have within the
158Freedman, supra note 2, at 1138; cf. THOREAU, supra note 18, at 243 (arguing
that even a just government authorized by “the sanction and consent of the governed”had “no pure right over [his] person”).
159Wilkins, supra note 100, at 514.
160See id. (arguing that lawyers must have the “right to reject the formal require-
ments of rules and roles in situations when following the official path would producesubstantively bad results”).
161See supra notes 2, 27 and accompanying text (supporting the proposition that
civil disobedience is an accepted form of protest).162
See Cowen, supra note 2, at 597 (arguing that attorney civil disobedience israrely justified since lawyers have “a greater opportunity than does the layman to rec-tify allegedly unjust or immoral laws within the existing legal structure”).
163This argument presupposes that the validity of civil disobedience depends, in
part, on the unavailability of other forms of protest. Others contend that such an as-sumption is unnecessarily restrictive on civil disobedience. See, e.g., Luban, supra note22, at 801 (stating that one’s duty to obey the law turns solely on whether the laws areworthy of respect).
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legal system comes with the legitimate expectation that attorneyswill exercise it.164 Attorneys alone may pull the levers of legal re-form, established as a form of democratic protection of citizens.165
Thus, when lawyers choose to break the law in protest instead ofutilizing the legal options available, they betray their role in ourdemocracy.166
There are two responses to this objection. First, a lawyer’s powercomes hand-in-hand with insight into the legal system that other citi-zens lack. In addition to giving attorneys a privileged position, a law-yer’s professional role provides her with unique opportunities to seethe law operate wrongly or unfairly. Attorneys have a better sense ofwhich laws create the greatest injustices and which may actually beimproved through noncompliance. Moreover, an attorney’s role dif-fers from that of nonlawyers in that they are charged as guardians ofthe administration of justice.167 These differences between membersof the legal profession and other citizens may actually make “a law-yer . . . particularly well equipped to break or disregard the law as anact of civil disobedience.”168
In addition, it is possible to exaggerate the power attorneys havewithin the legal system. We have already seen the ways in which thispower is limited.169 Even for attorneys, lawful reform of unjust laws
164See Wilkins, supra note 86, at 274 (“Lawyers are more than ordinary citizens;
they have been given a monopoly by the state to occupy a position of trust both withrespect to the interests of their clients and the public purposes of the legal frame-work.”).
165See id. (describing the role of lawyers as monopolistic and noting that this role
is tied to the social good).166
Not everyone agrees that lawyers should be regarded as playing a unique rolewithin our society. See Charles Fried, The Lawyer as Friend: The Moral Foundations of theLawyer-Client Relation, 85 YALE L.J. 1060, 1080 (1976) (“Some of the more ecstatic criticshave put forward the lawyer as some kind of anointed priest of justice . . . . But this iswrong. In a democratic society, . . . . [e]very citizen has the same duty to work for . . . theestablishment of just institutions, and the lawyer has no special moral responsibilitiesin that regard.” (footnote omitted)).
167See supra notes 47-49 and accompanying text (noting the duty imposed on law-
yers to improve the law).168
Carrie Menkel-Meadow, Private Lives and Professional Responsibilities? The Rela-tionship of Personal Morality to Lawyering and Professional Ethics, 21 PACE L. REV. 365, 388(2001); see also Luban, supra note 28, at 259 (“[B]ecause lawyers are often better posi-tioned than nonlawyers to realize the unfairness or unreasonableness of a law, lawyersoften should be among the first to violate or nullify it, or to counsel others that it isacceptable to violate or nullify it.”).
169See text accompanying notes 55-58 (describing the limits on lawful reform by
lawyers).
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may be either impossible or strictly limited.170 A lawyer may be theonly individual who can protest the law, and civil disobedience may bethe only way to lodge such protests. Thus, the power of attorneysalone should not prevent us from explicitly tolerating their civil dis-obedience.
IV. PROPOSALS FOR OFFICIAL TREATMENT OFATTORNEY CIVIL DISOBEDIENCE
The current rules of legal ethics overdeter attorney civil disobedi-ence due to the simple fact that they do not address it directly. Attor-neys are left with little guidance from the organized bar about whichprinciples, if any, constitute a moral justification for violating the law.Moreover, the ethics rules are of little help in determining the profes-sional consequences of disobedience.171 With so much uncertaintyabout civil disobedience in the law governing lawyers, committing itremains a high stakes gamble. As demonstrated in Part III, the justifi-cations for excluding a more forthright discussion of conscientiousnoncompliance in the Model Code and Model Rules are weak. Rec-ognizing the option of attorney civil disobedience will not threaten thepublic’s respect for the law, the legal system, or the legal profession.
Even the critics of attorney civil disobedience agree that there aresome instances in which it is unreasonable to impose on lawyers acategorical duty to obey the law. The case of Nazi Germany presents amoral baseline at which these commentators concur that noncompli-ance is justified.172 The more complicated issue is how to define a law-yer’s duty to obey the law in legal regimes, such as ours, that are “gen-erally just.”173 In this section, I will propose amendments to the ModelRules to better identify and accommodate instances of justified civildisobedience in the context of the American legal system.
170See Minow, supra note 37, at 727-39 (describing the limits on lawful reform, the
potential negative consequences in pursuing it, and the advantages that civil disobedi-ence offers in certain situations).
171See supra Part II (discussing the uncertain treatment in the legal ethics rules
and case law of attorney civil disobedience).172
See Terrell, supra note 28, at 833-34 (acknowledging that lawyers in a thoroughlyunjust system may justifiably disobey the law); Wilkins, supra note 86, at 285 (“[N]oteven the most ardent defenders of the Dominant View of legal ethics, or of Positivismmore generally, believe that either lawyers or citizens are under an absolute moral ob-ligation to obey the law no matter how evil or corrupt.”).
173See Wilkins, supra note 86, at 285 (noting that the important question is how to
define the bar’s prima facie obligation to obey the law).
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A. Defining Civil Disobedience
Civil disobedience should be incorporated into the Model Rulesas a defense to mitigate the effects of the charge that an attorney hasviolated her legal duties.174 To recognize such a defense in thecodes, we must define what constitutes civil disobedience. This task
174The difficulty of identifying attorney civil disobedience in some cases is illus-
trated by the recent development of multidisciplinary practices (MDPs). The mostprominent types of MDPs are those which offer business consulting, financial plan-ning, and legal services to their clients all at once by “partnering . . . lawyers and non-lawyers in multi-task service firms.” Jeffrey M. Jones, Comment, Bend, but Don’t Break:MDP Proposal Bends in the Right Direction, but—Crack!!—Goes Too Far, 54 SMU L. REV.395, 395 (2001). While they provide the advantages of “one-stop shopping” to clients,lawyers working in MDPs routinely breach ethics rules about fee sharing, conflicts ofinterest, and client confidentiality. See id. (“But despite the business efficiencies ofMDPs, such a combination of services is wrought with ethical difficulty.”); see also LindaGaller, Problems in Defining and Controlling the Unauthorized Practice of Law, 44 ARIZ. L.REV. 773, 774 (2002) (citing an ABA resolution that rejected MDPs by spelling out thecore values that MDPs would ostensibly violate).
Some observers have argued that MDPs are “blatantly violating” the rules of legalethics and that their lawyers are engaged in massive civil disobedience, essentially dar-ing bar disciplinary boards to try to stop them. See Lawrence J. Fox, Accountants, theHawks of the Professional World: They Foul Our Nest and Theirs Too, Plus Other Ruminationson the Issue of MDPs, 84 MINN. L. REV. 1097, 1097, 1105 (2000) [hereinafter AccountantsAre Hawks] (describing the hiring of thousands of lawyers by the Big 5 accountingfirms as civil disobedience); Lawrence J. Fox, Those Who Worry About the Ethics of Negotia-tion Should Never Be Viewed as Just Another Set of Service Providers, 52 MERCER L. REV. 977,988 (2001) (arguing that accountants have tried to justify “the civil disobedience of thethousands of lawyers they have hired”); see also Galler, supra, at 774 (proposing solu-tions to address the civil disobedience of the accounting firm MDPs and their lawyers).
Other observers believe that, whatever the transgressions of MDPs, characterizingtheir growth as civil disobedience goes well overboard. See, e.g., Erica Blaschke Zolner,Comment, Jack of All Trades: Integrated Multidisciplinary Practice, or Formal Referral System?Emerging Global Trends in the Legal and Accounting Professions and the Need for Accommoda-tion of the MDP, 22 NW. J. INT’L L. & BUS. 235, 252-53 (2001) (criticizing the claim thatlawyers at MDPs are engaging in civil disobedience as a “doomsday prediction” thatinaccurately depicts a crisis in the legal profession). The MDPs themselves, as they in-terpret the rules of ethics, argue that they have not violated them, conscientiously orotherwise. See Fox, Accountants Are Hawks, supra, at 1100 (reciting the MDP argumentthat their lawyers are not subject to the rules of professional ethics because they arenot practicing law).
No one—especially not the bar—seems to know quite how to handle the MDPs.Their practices represent a significant and intentional departure from current profes-sional norms, but enforcement of the ethics provisions supposedly violated by MDPshas remained lax, and MDPs vigorously fought the few enforcement proceedingsbrought against them. See Jones, supra, at 425-26 (remarking that there is “very little inthe way of enforcement [of the disciplinary rules] to show” for all the concern aboutMDPs, and reporting that an enforcement action against an MDP failed because theMDP “simply overwhelmed the bar with a phalanx of defense lawyers” (quoting Krys-ten Crawford, The Enemy Has Landed, and They Count Beans, AM. LAW., Dec. 1998, at16)).
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is more difficult than it would first seem. There is a wide range ofattorney behavior that falls within the “gray areas” of positive law,with the result being that there are times when it may be difficult topin down which actions constitute actual noncompliance. This isespecially true when the alleged wrongdoer refuses to acknowledgeher offense.
A definition of civil disobedience in the ethics rules should in-clude four elements. First, the act constituting civil disobediencemust be public. An attorney’s actions should only fall within the defi-nition if she acknowledges that she has broken the law and offers civildisobedience as a defense. Though there may be instances in whichnonpublic lawbreaking is more effective for ensuring a just result,such behavior does not demonstrate the respect for the law that re-deems an attorney’s defiance and gives the system an opportunity torespond.175 Moreover, if a nonpublic violation were to become public,it would undermine trust in the legal profession much more than if ithad been public from the beginning.176
Second, the disobedience must be nonviolent. A civil disobedi-ence defense cannot be a safe harbor for violence. Noncompliancewith unjust laws loses its legitimacy when it is violent.177
Third, the attorney must offer an explanation of her defiancebased on moral or religious conviction.178 David Luban has persua-sively argued that the obligation to obey the law can be understood,in part, as an obligation to our fellow citizens.179 When attorneys(and other citizens) seek to convince the legal system that violatingthis obligation was justified, they owe their fellow citizens an explana-tion of why they believed the law was “wrong, stupid, or unfair.”180
Though identifying when an attorney’s moral or religious beliefs ac-tually compel her to violate the law is a delicate matter, the jurispru-dence regarding conscientious objectors to military service provides ahelpful comparison. Citizens have been relieved from their militaryduty on grounds of ethical standards that had a “functional role in
175See Zacharias, supra note 124, at 214-16 (discussing the problems caused by se-
cret conscientious objection by attorneys).176
See id. at 215-16 (“[S]ecret conscientious objection may contribute to the pub-lic’s general image of ineffective or disloyal lawyering . . . .”).
177Cf. King, supra note 10 (describing the legitimacy of nonviolent direct action).
178See Griffin, supra note 50, at 1259-61 (arguing that the civil disobedience model
is appropriate for lawyers who break the law for religious reasons).179
See LUBAN, supra note 37, at 35-43 (explaining the proposition that respect forthe law is “respect for our fellows”).
180Id. at 47.
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guiding the objector’s behavior throughout his everyday activities,”when these beliefs were held extremely deeply, and when the objec-tor demonstrated his strength of convictions by accepting punish-ment.181 These standards provide the bar with a touchstone by whichto judge whether an attorney’s asserted moral commitments aregenuine.
Finally, civil disobedience should exclude activities motivatedprimarily by material self-interest.182 An attorney who cannot establishthis element is unlikely to succeed in establishing the previous one ei-ther. Explicitly stating this requirement, however, emphasizes—to thelegal profession and to the public—the features of self-sacrifice andconcern for the public interest that are central to civil disobedience.
B. Limiting Disciplinary Discretion
Commentators disagree on how much discretion should be af-forded to disciplinary bodies in punishing attorneys who engage incivil disobedience. Generally, those scholars who wish to restrict dis-cretion in punishing defiant attorneys are those who are also skepticalof the propriety of attorney civil disobedience.183 I believe, however,that a call for constrained discretion in the bar’s disciplinary system isan important element of making the legal profession more tolerant oflawyer noncompliance.
There are two ways in which disciplinary discretion should be lim-ited. First, I propose to limit the range of professional consequencesthat attorneys currently face for civil disobedience. The ethics rulescurrently provide no hint of the consequences of conscientious non-compliance. Rather, attorneys are left to gamble on the response ofthe bar’s disciplinary authorities, with little help in determiningwhether their disobedience will be ignored, result in a slap on thewrist, or cost them their licenses.184 Without a clear picture of the riskto their careers, attorneys cannot make an informed evaluation ofwhether they should conscientiously violate a law. Establishing a more
181See Zacharias, supra note 124, at 202-05 (discussing legal standards for granting
conscientious objector status).182
Cf. Luban, supra note 28, at 259 n.34 (suggesting that civil disobedience shouldexclude actions taken by a lawyer for “intended pecuniary gain”).
183See, e.g., Terrell, supra note 28, at 831-34 (opposing increased discretion in in-
terpreting the rules and criticizing attorney civil disobedience in a “generally just” legalsystem).
184See supra text accompanying note 77 (describing the uncertainty about the bar’s
response to civil disobedience).
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limited range of punishment within the ethics rules for discipliningcivil disobedience will allow lawyers to consider noncompliance morethoughtfully. Because of a lawyer’s heightened duty to obey the law,some professional disciplinary consequences are appropriate for at-torneys who commit civil disobedience.185 But at the same time, theprofessional penalty to attorneys cannot be so great that their veryability to practice law may be at stake, as it currently is.186 Attorneysshould be subject, at the very worst, to no more than a temporary sus-pension of their ability to practice.
I also propose to limit the ability of disciplinary counsel to turn ablind eye to attorney civil disobedience.187 As Professor Bruce Greenhas observed, the attitude of disciplinary counsel towards conscien-tious lawbreaking is often that lawyers should go ahead and do it, but“[j]ust don’t tell us about it.”188 This form of prosecutorial discretionundermines the justifications for and effectiveness of attorney civildisobedience in several ways. First, the exercise of such discretionstrips civil disobedience of its value as a tool for improving the law. Bygiving a defiant attorney a pass, the bar minimizes the law-moralityconflict that the lawyer’s disobedience highlights. This robs both thebar and the legal system of an opportunity to publicly evaluate the at-torney’s criticism and to adequately consider the most appropriate re-sponse. Second, attorneys who have committed civil disobedienceshow their respect for the law by accepting punishment. If lawyersface no disciplinary proceedings for their violations, this element ofrespect is not displayed to the public. This potentially undermines thepublic’s respect for the law and for the legal profession.189 Finally,prosecutorial discretion detracts from the generality of the ethics rulesand weakens their moral authority.190 This is contrary to the purposeof civil disobedience, which is to strengthen legal authority, not toundermine it.
185See supra notes 148-49 and accompanying text (discussing a lawyer’s increased
responsibility to obey the law).186
See Terrell, supra note 28, at 835-36 (noting that disbarment is a potential con-sequence of civil disobedience).
187Compare id. at 840 (arguing against increasing discretion within legal ethics to
accommodate civil disobedience), with Strassberg, supra note 23, at 951-52 (supportingincreased prosecutorial discretion for justified noncompliance).
188Green, supra note 77, at 1308 (quoting an unidentified disciplinary counsel).
189See supra Part III.A-B (discussing how attorneys show respect for the law by ac-
cepting punishment willingly).190
See supra note 107 and accompanying text (noting that the fairness and gener-ality of the law is the feature that earns it our respect).
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CONCLUSION
Though lawyers must often resolve conflicts between their legalduties and their moral obligations, the Model Rules and Model Codeprovide little guidance to attorneys for resolving these struggles. Theethics rules are unhelpful in determining if or when moral principlesoutweigh a lawyer’s obligation to obey the law, leaving attorneys whowish to engage in civil disobedience to gamble their careers on thediscretion of the bar’s disciplinary authorities. Moreover, the argu-ments offered for continuing to ignore conscientious noncompliancein the codes of ethics are unpersuasive.
The legal profession should directly address the issue of civil dis-obedience in its rules of ethics. The bar will be strengthened by theexplicit acknowledgement that moral considerations can supercedeeven an attorney’s legal duties. Our society expects lawyers, who re-main its most important custodians of the law’s fairness and justice, toexercise moral judgment for the good of our legal system. As Gan-dhi’s example teaches us, an attorney need not sacrifice her respectfor the law or undermine her role in the legal system by committingcivil disobedience. It is past time for the bar to recognize the possibil-ity that an attorney may best fulfill her duties to the law and to our so-ciety through conscientious noncompliance.
Fordham Urban Law JournalVolume 27, Issue 6 1999 Article 4
Lawyering for Social Change
Karen L. Loewy∗
∗
Copyright c©1999 by the authors. Fordham Urban Law Journal is produced by The BerkeleyElectronic Press (bepress). http://ir.lawnet.fordham.edu/ulj
Lawyering for Social Change
Karen L. Loewy
Abstract
This Note explores the significance, legitimacy and methodology of lawyering for socialchange. It begins by examining lawyers’ motives for entering into such work and the theoreti-cal approaches toward political lawyering and the methodologies employed to effect change. Itraises the question of whether it is justifiable for a lawyer to drive social change specifically con-sidering his unique access to the legal system. The Note concludes that it is entirely legitimate fora lawyer to engage in work for social change in order to ensure that the rights of all people areprotected whether through litigation, public education seminars, rallies, lobbying or writing forscholarly journals.
LAWYERING FOR SOCIAL CHANGE
Karen L. Loewy*
The continued existence of a free and democratic society de-pends upon recognition of the concept that justice is based uponthe rule of law grounded in respect for the dignity of the individ-ual and his capacity through reason for enlightened self-govern-ment. Law so grounded makes justice possible, for only throughsuch law does the dignity of the individual attain respect andprotection. Without it, individual rights become subject to unre-strained power, respect for law is destroyed, and rational self-government is impossible. Lawyers, as guardians of the law,play a vital role in the preservation of society.1
INTRODUCTION
Lawyering for social change, often termed political lawyering,can be defined in many ways.2 One definition of political lawyer-ing construes the word "politics" in the classical sense of Plato andAristotle, viewing it "as the art concerned with what it means to bea human being; what is the best life for a human being; and.., theways in which we can order our living together so that good humanlives will emerge."3
Another definition focuses on the lawyer's ability to fight thestatus quo and to provide redress and representation to the voice-less.4 Lawyering for social change is "a form of advocacy that con-sciously [strives] to alter structural and societal impediments toequity and decency ' 5 as the lawyer works to provide "legal repre-sentation to individuals, groups, or interests that historically have
* J.D. Candidate, Fordham University School of Law, 2000; B.A. in Near East-
ern and Judaic Studies and Music and certificates in Women's Studies and Legal Stud-ies, Brandeis University, 1996. I would like to thank Professor Russ Pearce for hiseditorial comments on early drafts and the Stein Scholars Program for continued sup-port. Special thanks to David S. Widzer for his endless love and encouragement.
1. ABA Model Code of Professional Responsibility, Preamble and PreliminaryStatement (1981) in THOMAS D. MORGAN & RONALD D. ROTUNDA, 1998 SELECrEDSTANDARDS ON PROFESSIONAL RESPONSIBILITY (1998) [hereinafter "Model Code"].
2. This Note uses the terms "political lawyering," "lawyering for social change"and "social change lawyering" interchangeably.
3. Peter M. Cicchino, To Be A Political Lawyer, 31 HARV. C.R.-C.L. L. REV. 311(1996).
4. See Preface to Symposium, Political Lawyering Conversations on ProgressiveSocial Change, 31 HARV. C.R.-C.L. L. REV. 285 (1996).
5. Id. at 285.
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been unrepresented in our legal system, or who are fighting theestablished power or the established distribution of wealth."' 6 So-cial change lawyering refers to those "lawyers whose work is di-rected at altering some aspect of the social, economic and/orpolitical status quo" and who believe that current societal condi-tions obstruct the full participation of and sufficient benefits tosubordinated people.7
Professor Martha Minow also suggests that political lawyering"involves deliberate efforts to use law to change society or to alterallocations of power."8 She examines the meanings of "law," ".so-cial" and "change," noting that "law" encompasses both the formalrules promulgated by the various branches of government and thecustoms of authority and opposition that have arisen both aroundand outside of the public institutions intended to change thoserules.' "Social" connotes the essential links between politics andculture through which people shape their awareness of and ambi-tions for society, and the arenas for deliberation over what moral-ity and economic justice should require.10 Finally, she posits that"'[c]hange' includes not only specific, discrete alterations, but alsoprocesses of renovation and continuing challenge of the statusquo.'
1
This Note explores the significance, legitimacy and methodologyof lawyering for social change. Part I examines the lawyer's mo-tives for entering into this work, as well as notions of how the law-yer's role affects her work for social change. This Part alsoexplores theoretical approaches toward political lawyering and themethodologies employed to effect change. Part II examineswhether it is justifiable for a lawyer to drive social change, takinginto consideration the ramifications of different images of the law-yer's role and the dangers of a lawyer's working to further social
6. Debra S. Katz & Lynne Bernabei, Practicing Public Interest Law in a PrivatePublic Interest Law Firm: The Ideal Setting to Challenge the Power, 96 W. VA. L. REV.
293, 294-95 (1993-94).7. Louise G. Trubek, Embedded Practices: Lawyers, Clients, and Social Change,
31 HARV. C.R.-C.L. L. REV. 415 n.2 (1996).8. Martha Minow, Political Lawyering: An Introduction, 31 HARV. C.R.-C.L. L.
REV. 287, 289 (1996).9. See Martha Minow, Law and Social Change, 62 U. Mo. KAN. Crry L. REV.
171, 176 (1993) [hereinafter Minow, Law and Social Change].10. See id. at 182. Minow rejects the strict dictionary definition of "social" - "'of
or relating to human society"' - as too vague, claiming that within the context of lawand social change, "social" is often treated too narrowly. Id. at 176 n.30 (citing WEB-
STER'S THIRD NEW INT'L DICTIONARY 2161 (1967)).11. Id. at 182.
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change, particularly regarding the lawyer-client relationship andanti-majoritarian uses of the courts. This Part also examines argu-ments for the legitimacy of this enterprise stemming from the roleof the law as an expression of societal values and from the uniqueaccess lawyers have to the legal system. Part III argues that it isentirely legitimate for a lawyer to engage in work for social changein order to ensure that the rights of all people are protected. ThisPart addresses the objections raised to political lawyering, conclud-ing that these objections can either be overcome through variouslawyering techniques or can be counterbalanced by the need to en-sure protection of legal rights. In addition, this Part puts forth amodel of lawyering that incorporates moral activism with a flexibil-ity of ideology and technique, allowing the lawyer to work for thegreater good.
1. THE LAWYER'S ROLE AND TECHNIQUE IN WORKING FOR
SOCIAL CHANGE
General definitions of the endeavor of lawyering for socialchange do not really explain why working for social change is spe-cifically an activity for lawyers. These definitions do not directlyaddress the historical context of and the varied reasoning behindthe field of lawyering for social change. They do not address thenuances of different models of the lawyer's role. They do not indi-cate how a lawyer can actually accomplish this goal. This Part ex-amines different conceptions of the lawyer's role, focusing on thenotions of lawyers as a governing class and of lawyers as moralactivists, in order to illuminate the lawyer's motivations for work-ing for social change. It then explores the theories underlying theuse of these models and the use of particular types of efforts inachieving true change.
A. The Lawyer's Role - Or Why It Is a Lawyer's Job to DoThis Work At All
The moral doctrines that regulate the legal profession discussand promote the lofty ideals of informed democracy and the auton-omy of every human being.12 The professional responsibility codesexhort lawyers to protect the system that safeguards individualrights in order to preserve societal values.13 Lawyers have an obli-
12. See Preamble & Preliminary Statement to Model Code, supra note 1.13. See id.; see also Preamble to ABA Model Rules of Professional Conduct, A
Lawyer's Responsibilities (1997), in THOMAS D. MORGAN & RONALD D. ROTUNDA,1998 SELECTED STANDARDS ON PROFESSIONAL RESPONSIBILITY (1998) [hereinafter
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gation to work for the betterment of the legal system and have aunique role as "guardians of the law."1 4 These ideals would seemto appeal to the moral center of every lawyer's soul, yet the codespromote a role of the lawyer that only addresses one conception oflawyering - that of lawyers as a governing class. This image viewslawyers as a noble assembly that works for the people out of asense of duty stemming from their superior skills and judgment.' 5
Other images of a lawyer's role, however, promote a differentfocus. The moral activist model envisions lawyering as a principledendeavor inextricable from the lawyer's own personal morality.' 6
Lawyers enter into their role out of a sense of what is moral andright and are held morally accountable for their actions.' 7 Thissection explores these notions and how they motivate lawyers toengage in political lawyering.
1. The Governing Class
In 1905, Louis D. Brandeis addressed undergraduates atHarvard, lamenting the general neglect among lawyers of their ob-
"Model Rules"] (noting that a lawyer has a duty to uphold the legal process and thatlawyers "play a vital role in the preservation of society."); Preamble to ABA Canonsof Professional Ethics (1908), in THOMAS D. MORGAN & RONALD D. ROTUNDA, 1998SELECTED STANDARDS ON PROFESSIONAL RESPONSIBILITY (1998) [hereinafter "ABACanons"]; Preamble to ABA Torts and Insurance Practice, Lawyer's Creed of Profes-sionalism (1988), in THOMAS D. MORGAN & RONALD D. ROTUNDA, 1998 SELECTEDSTANDARDS ON PROFESSIONAL RESPONSIBILITY (1998) ("As a lawyer, I must strive tomake our system of justice work fairly and efficiently.").
14. Preamble & Preliminary Statement to Model Code, supra note 1.15. See, e.g., GEOFFREY HAZARD, JR. ET AL., THE LAW AND ETHICS OF LAWYER-
ING 1086 (2d ed. 1994); Louis D. Brandeis, The Opportunity in the Law, 39 AM. L.REV. 555 (1905); ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 102-12 (HenryReeve trans., 3d ed. 1838). See generally JEROLD S. AUERBACH, UNEQUAL JUSTICE:
LAWYERS AND SOCIAL CHANGE IN MODERN AMERICA (1976) (examining the re-sponses of elite lawyers to social change in the twentieth century).
16. See, e.g., DAVID LUBAN, LAWYERS AND JUSTICE: AN ETHICAL STUDY 160-74(1988) [hereinafter LUBAN, LAWYERS AND JUSTICE] (discussing throughout part I thedifficulties inherent in the adversary system and advocating a system of lawyer ac-countability); David Luban, The Social Responsibility of Lawyers: A Green Perspec-tive, 63 GEO. WASH. L. REV. 955 (1995); David Luban, The Noblesse Oblige Traditionin the Practice of Law, 41 VAND. L. REV. 717 (1988) [hereinafter Luban, NoblesseOblige]; Paul R. Tremblay, Practiced Moral Activism, 8 ST. THOMAS L. REV. 9 (1995);Deborah L. Rhode, Ethical Perspectives on Legal Practice, 37 STAN. L. REV. 589, 643-45 (1985); MARK V. TUSHNET, MAKING CIVIL RIGHTS LAW: THURGOOD MARSHALLAND THE SUPREME COURT, 1936-1961 (1994) [hereinafter TUSHNET, CIVIL RIGHTS];
David R. Esquivel, Note, The Identity Crisis in Public Interest Law, 46 DUKE L.J. 327(1996); Janine Sisak, Note, Confidentiality, Counseling, and Care: When Others Needto Know What Clients Need to Disclose, 65 FORDHAM L. REV. 2747, 2759-61 (1997).
17. See LUBAN, LAWYERS & JUSTICE, supra note 16, at 160.
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ligation "to use their powers for the protection of the people.' 18
Brandeis raised a call for more "people's lawyers,"19 encouraginglawyers to fulfill the obligation created by their specialized trainingand highly defined sense of judgment.2 0 He believed that the law-yer's aptitude for abstract thought and empirical astuteness, herability to reach conclusions in real time, her keenly honed judg-ment of people, her tolerance and her practical attitude constituteda unique composite of traits that perfectly suited the lawyer forpublic life.21 He recognized that lawyers enjoy a social status re-sembling that of a noble class, noting Alexis de Tocqueville's ear-lier reference to lawyers as an American aristocracy.22 This modelof lawyering traces the lawyer's obligation to serve the people tothis elevated position.23 The governing class notion posits that be-cause legal education and training emphasize objective reasoningand decision-making, lawyers are better equipped to struggle withthe matters of democracy.24 Further, the lawyer's own interests are
18. AUERBACH, supra note 15, at 34-35 (citing Brandeis, supra note 15).19. Brandeis' notion of "people's lawyers" stemmed from his belief that lawyers
had a duty to use their ability and authority to protect the greater good. "The greatopportunity of the American bar is and will be to stand again as it did in the past,ready to protect also the interests of the people." Brandeis, supra note 15, at 559-60.He proposed that in order to rectify the legal profession's slant toward representingthe wealthy, lawyers should advise the large private interests in their private practice,but should also pursue public sector responses to the inequities that result from thatslant. See id. at 562-63.
20. See id.21. See Luban, Noblesse Oblige, supra note 16, at 720-21.22. See id. at 718-19 (citing DE TOCQUEVILLE, supra note 15, at 102-12). De Toc-
queville, having visited the United States, viewed lawyers as an aristocracy, wieldingan inordinate amount of power over the dealings of society. See DE TOCQUEVILLE,supra note 15, at 102-12. De Tocqueville proposed that lawyers, like aristocrats, havea duty higher than mere commercialism and through their public lives, assume re-sponsibility for the common good, that the common good will be attained by decreas-ing the tyranny of the majority and quelling social freedoms in the name of order, thatthis will be accomplished by restraining the people, and that lawyers are particularlyadapted for this type of work by their training and mental propensities. See Luban,Noblesse Oblige, supra note 16, at 719 (citing DE TOCQUEVILLE, supra note 15, at 271-76).
23. See Brandeis, supra note 15, at 560.24. See Russell G. Pearce, Rediscovering the Republican Origins of the Legal Eth-
ics Codes, 6 GEO. J. LEGAL ETHICs 241, 253 (1992).[Lawyers] have a responsibility "to serve as a policy intelligencia ... and touse the authority and influence deriving from their public prominence andprofessional skill to create and disseminate, both within and without the con-text of advising clients, a culture of respect for and compliance with the pur-poses of the laws."
Id. at 253 (quoting Robert W. Gordon, The Independence of Lawyers, 68 B.U. L.REV. 1, 14 (1988)).
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completely divorced from this endeavor, as the lawyer's duty is topromote the common good.25 This image of lawyering pervadedlegal culture for years, and to some extent, still does.26
2. The Moral Activist
Another image of the lawyer's role is that of moral activism. Themoral activist views lawyering as a principled endeavor, seeing at-torneys as morally accountable for the legal principles they advo-cate.27 Professor David Luban describes moral activism as "avision of law practice in which the lawyer who disagrees with themorality or justice of a client's ends does not simply terminate therelationship, but tries to influence the client for the better. ' 28 Law-yers would decline or withdraw from cases they deem unjust.29
25. See id. (tracing the historical roots of the ethical codes to the work of GeorgeSharswood).
[A] lawyer's principle obligation was the republican pursuit of the commu-nity's common good even where it conflicts with either her client's or herown interests. Sharswood defined the common good as the protection oforder, liberty, and property in order to provide individuals with the opportu-nity to perfect themselves.
Id. at 241.26. See HAZARD, supra note 15, at 1086; AUERBACH, supra note 15, at 307-08;
Pearce, supra note 24; see also Model Code, supra note 1, EC 8-1 ("By reason ofeducation and experience, lawyers are especially qualified to recognize deficiencies inthe legal system and to initiate corrective measures therein."); Preamble to ModelRules, supra note 13 (linking the lawyer's duty to improve the legal system itself andthe access of the powerless to that system to the lawyer's place in society and in thelegal profession).
As a public citizen, a lawyer should seek improvement of the law, the admin-istration of justice and the quality of service rendered by the legal profes-sion. As a member of a learned profession, a lawyer should cultivateknowledge of the law beyond its use for clients, employ that knowledge inreform of the law and work to strengthen legal education. A lawyer shouldbe mindful of deficiencies in the administration of justice and of the fact thatthe poor, and sometimes persons who are not poor, cannot afford adequatelegal assistance, and should therefore devote professional time and civic in-fluence in their behalf.
Preamble to Model Rules, supra note 13.27. See LUBAN, LAWYERS & JUSTICE, supra note 16, at 160-61.28. Id. at 160.29. See id.; see also Model Rules, supra note 13, Rule 1.16(b) (stating that unless
ordered to do so by a tribunal, "a lawyer may withdraw from representing a client if... a client insists upon pursuing an objective that the lawyer considers repugnant orimprudent"); Model Code, supra note 1, EC 2-26 ("A lawyer is under no obligation toact as advisor or advocate for every person who may wish to become his client[.]");EC 2-30 ("[A] lawyer should decline employment if the intensity of his personal feel-ing, as distinguished from a community attitude, may impair his effective representa-tion of a prospective client."); ABA Canons, supra note 13, Canon 31("Responsibility for Litigation").
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Lawyers derive motivation from their personal determinations ofwhat is right and good. Their actions come from their own notionsof justice and morality rather than from any duties they owe.
An example of moral activism lies in the work of Charles Hamil-ton Houston' and Thurgood Marshall 3' in the civil rights move-ment.32 Houston described the type of lawyering he performed as"social engineering. ' 33 This model advocates that "[a]s social engi-neers, lawyers [have] to decide what sort of society they [wish] toconstruct, and ... use the legal rules at hand as tools. '3 4 Socialengineering involves a moral decision about the types of battlesworth fighting, followed by the utilization of all the tools at a law-yer's disposal, including the rules of the courts and an awareness ofthe social setting in which the law operates. 35 Houston and Mar-shall's civil rights crusade stemmed from their own very personaldesires to fight discrimination against African Americans.36 Theyaimed to solve what they saw as crucial social problems.37 This
No lawyer is obligated to act either as adviser or advocate for every personwho may wish to become his client. He has the right to decline employment.Every lawyer upon his own responsibility must decide what employment hewill accept as counsel, what causes he will bring into Court for plaintiffs,what cases he will contest in Court for defendants.
ABA Canons, supra note 13, Canon 31.30. See Steven H. Hobbs, From the Shoulders of Houston: A Vision for Social and
Economic Justice, 32 How. L.J. 505 (1989). Charles Hamilton Houston was a promi-nent civil rights attorney, special counsel for the NAACP, and professor and dean ofHoward University School of Law. He worked with Thurgood Marshall on a widerange of landmark civil rights cases. See id. at 506.
31. Thurgood Marshall was a prominent civil rights attorney, working as staff at-torney for the NAACP Legal Defense and Education Fund, before serving as a judgeand eventually becoming the first African American Justice on the United States Su-preme Court. See TUSHNET, CIVIL RIGHTS, supra note 16; Mark V. Tushnet, TheJurisprudence of Thurgood Marshall, 1996 U. ILL. L. REV. 1129, 1131 (1996) [herein-after Tushnet, Thurgood Marshall].
32. See Tushnet, supra note 16, at 4-5; Hobbs, supra note 30.33. See TUSHNET, CIVIL RIGHTS, supra note 16, at 6.34. Id.35. See id. Tools used by political lawyers include, among others, impact litigation,
legislative advocacy, public education, media initiatives, monitoring governmentalpolicies and building coalitions. See, e.g., About NOW LDEF (visited Feb. 25, 2000)<http://www.nowldef.org/html/about/index.htm>; About the NAACP Legal DefenseFund (visited Feb. 25, 2000) <http://www.igc.apc.org/lctr/ldf-info.html>.
36. See Hobbs, supra note 30, at 509-12; TUSHNET, CIVIL RIGHTS, supra note 16, at4-5.
37. See Tushnet, Thurgood Marshall, supra note 31, at 1141. Tushnet critiques thenotion of social engineering as stemming from the governing class idea of lawyershaving specialized knowledge unavailable to the public. This Note suggests, however,that Tushnet mischaracterizes Marshall's utilization of the social engineering model,suggesting that Marshall's personal motivations prevent the assignation of this modelto the governing class.
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conception of moral activism, while originating in the civil rightsmovement, continued through the women's, gay and lesbian, andpoverty rights movements, among others, encouraging lawyers touse the legal tools at their disposal to work toward these morality-driven goals. 8
B. The Models and Methodologies of Lawyering forSocial Change
The techniques employed in lawyering for social change varygreatly. One achieves success with a multitude of strategies andefforts. This section explores the theoretical and methodologicalstrategies lawyers may use in working for social change.
1. Theoretical Models of Lawyering for Social Change
Three ways of approaching the achievement of social change arethe notions of "cultural shift," "negotiation of strategy" and "di-mensional lawyering." These views are not mutually exclusive, butthey are informed by different underlying ideologies.
a. Cultural ShiftThe creation of a cultural shift is one view of the way to make
true social change. 39 Professor Thomas Stoddard suggests that so-cial change and legal change are not always coexistent, that onedoes not always prompt the other.4' Furthermore, attempts at lawreform may only succeed on a formal level and may not have anyreal impact on the larger cultural context into which they fit.41 Thelaw's traditional mechanisms can be adapted, however, to improvesociety in extra-legal ways. This use of the law is what Stoddardcalls the law's culture-shifting capacity.42
A cultural shift may take place when far-reaching or significantchange occurs, public awareness of that change is widespread, thepublic generally perceives that change as legitimate or valid, andthere is continuous, overall enforcement of the change. 43 One the-ory perhaps underlying the notion of cultural shift and its beliefthat all of these components must occur contemporaneously is that
38. See MARTHA F. DAVIS, BRUTAL NEED: LAWYERS AND THE WELFARE RIGHTSMOVEMENT, 1960-1973 2 (1993).
39. See Thomas B. Stoddard, Bleeding Heart: Reflections on Using the Law toMake Social Change, 72 N.Y.U. L. REV. 967 (1997).
40. See id. at 972.41. See id.42. See id. at 973.43. See id. at 978.
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lawyers may not be able to divert the direction of a rule of law veryfar off course from the beliefs of elected officials." Without thesupport of the general public and the enforcement of the change,change cannot really occur. To make major changes in critical so-cial relationships, one must change the way people think about theissue.45
A new law that affects a large number of people in fundamentalways creates the potential for culture shifting. 6 For the shift tohave cultural resonance, however, the general public must also per-ceive the shift. It must be "generally discerned and then absorbedby the society as a whole."47 This common awareness must also beaccompanied by some sense of public acceptance grounded in asense of legitimacy or validity, as awareness is never enough to as-sure compliance.48 Finally, unless the rules are enforced, the publicwill disregard them. Unless a new law promotes public awarenessand adherence to the rules, as well as provides appropriate sanc-tion for their disregard, culture-shifting cannot occur.49
Professor Nan Hunter suggests an additional requirement for atrue cultural shift.50 She posits that in addition to the four require-ments listed above, some type of public engagement in the effort tochange the law must occur.51 When a change stems from a mobil-ized public demand, whether through litigation or legislation onstate or federal levels, the resulting change has an immediate cul-ture-shifting impact.5 2 She thus places great emphasis on mobiliza-tion and empowerment of those seeking legal assistance, andstrengthening the represented constituency or community organi-zation.53 This empowerment is valuable because the constituentcommunity will work toward larger, more fundamental change,viewing the law as a tool to accomplish this change as opposed to
44. See James Douglas, The Distinction Between Lawyers as Advocates and AsActivists; And the Role of the Law School Dean in Facilitating the Justice Mission, 40CLEV. ST. L. REV. 405, 407 (1992).
45. See id.46. See Stoddard, supra note 39, at 978.47. Id. at 980.48. See id. at 982-83 (stating that "'[c]ulture-shifting' can never take place in an
atmosphere of resistance. It requires, at a minimum, an aura of moral and culturallegitimacy to sustain widespread adherence to any new code of conduct.").
49. See id. at 986-87.50. See Nan D. Hunter, Lawyeringfor Social Justice, 72 N.Y.U. L. REV. 1009, 1019
(1997).51. See id.52. See id. at 1020.53. See id.
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viewing the reform of the law as the end goal in and of itself.54
Consequently, these communities will not be constrained by thelimits of the law and will better serve as repeat players in thescheme of social change.55
Professor Chai Feldblum suggests that in order for the public tobelieve in the legitimacy of a change, whether enacted by the legis-lature or decided by a court, there must be an engagement with themorality underlying the issue.56 She maintains that the moral dis-course surrounding the debate of social issues must not be dis-counted.57 While legal commentators have long documented theimpact of judicial reasoning on the moral rhetoric surrounding acontroversial issue, the legislators' discourse has lacked similar rec-ognition.5 8 Because the surrounding rhetoric is so powerful, itmust involve a real engagement with the underlying moral issues,as this grappling will have an impact on the type of culture-shiftthat occurs.59 Because the issues around which social change occurare those that are grounded, at their core, in morality, the more themoral aspects of the issues are emphasized, the greater the impactof the cultural shift. 60
b. Negotiation of Strategy
Other models of social change efforts focus on employing strate-gies that fit particular situations. Minow suggests that for truechange to occur, there must be a negotiation of result-oriented andprocess-oriented activity.6' She notes that many problems do notfit the pattern of problem and solution, and therefore, different ap-proaches must be taken to accomplish different goals. 62 The multi-layered strategies of legal advocacy organizations recognize the ne-cessity for these different approaches.63
54. See id.55. See id. at 1020-21.56. See Chai R. Feldblum, The Moral Rhetoric of Legislation, 72 N.Y.U. L. REv.
992, 994 (1997).57. See id. at 994.58. See id. at 994-95.59. See id. at 994.60. See id.61. See Minow, Law and Social Change, supra note 9, at 179-82. Minow generally
discusses result-oriented activities as those aimed at discrete, specific changes andprocess-oriented activities as those aimed at a continuous process of change. See id.
62. See id. at 181 (citing Ota de Leonardis, Deinstitutionalization, Another Way:The Italian Mental Health Reform, 1 HEALTH PROMOTION 151, 153 (1986)).
63. See, e.g., About NOW LDEF, supra note 35.NOW LDEF pursues equality for women and girls in the workplace, theschools, the family and the courts, through litigation, education, and public
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Professor Cornel West suggests that the impact of progressivelawyers comes from a combination of defensive work against cul-tural conservatism, 64 radical legal practice through academic criti-ques of liberal paradigms 65 and participation in extra-parliamentary social movements.66 Further, West proposes thatlawyers have the role of curing society's "historical amnesia," en-suring the preservation of past struggles, and building on "thetraces and residues of past conflicts. '67 By using previous conflictsto provide a framework for their endeavors, lawyers for socialchange can build on previously earned political ground.
Social engineering, as advocated by Houston and Marshall, is aclear example of negotiation of strategy. As Professor MarkTushnet notes, "They had to use the legal materials available tothem to shape a working solution to the pressing problems of sociallife that lawyers confronted. ' 68 This methodology in addressingthe realities of the African American situation paved the way forother social movements, providing a "model for using litigation tochange legal and social structures that marginalized a segment ofsociety. ' 69 The NAACP Legal Defense and Education Fund'scampaign to desegregate public schools served as the prototype for
information programs. NOW LDEF's docket of 70 cases covers a wide rangeof gender equity issues. NOW LDEF also provides technical assistance toCongress and state legislatures, employs sophisticated media strategies, dis-tributes up-to-the-minute fact sheets, and organizes national grassroots co-alitions to promote and sustain broad-based advocacy for women's equality.
Id.Litigation, the foundation of LDF's strength, remains the central element ofLDF's efforts.... At the same time, LDF is continuing its tradition of inno-vation by expanding its efforts outside the courtroom. Monitoring laws andgovernment policies, advocating for change, keeping the general public in-formed, and strengthening coalitions with other concerned organizations areamong the many ways LDF is active today.
About the NAACP Legal Defense Fund supra note 35. See also About Lambda (vis-ited Feb. 24, 2000) <http://www.lambdalegal.org/cgi-bin/pages/about> ("Lambda Le-gal Defense and Education Fund is a national organization committed to achievingfull recognition of the civil rights of lesbians, gay men, and people with HIV/AIDSthrough impact litigation, education, and public policy work.").
64. See Cornel West, The Role of Law in Progressive Politics, 43 VAND. L. REV.
1797 (1990). For an example of this kind of work, see, e.g., Guardian of Liberty:American Civil Liberties Union (visited Feb. 24, 2000) <http://www.aclu.org/library/pbpl.html> (detailing the ACLU's efforts to preserve civil liberties).
65. See West, supra note 64 (providing an example of such an academic critique).66. See id. at 1799-1801 (1990). Examples of such social movements include the
civil rights movement and the poverty rights movements. See TUSHNET, CIVIL
RIGHTS, supra note 16; DAVIS, supra note 38.67. See West, supra note 64, at 1802.68. Tushnet, Thurgood Marshall, supra note 31, at 1141.69. DAVIs, supra note 38, at 2.
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the social movements that followed.70 Thus negotiation of strategyis a methodology used widely by social movements today.7'
c. Dimensional Lawyering
Professor Lucie White divides the work of social change lawyersinto three "dimensions. ' 72 The first dimension is an advocacyaimed at making the law more amenable to the social welfareneeds of disempowered groups.73 For example, litigation and lob-bying can expand or improve welfare programs, their administra-tion and their monitoring.74 The second dimension is advocacythat seeks to reconstruct values in the dominant culture, thus en-couraging greater sensitivity to the injustices faced by the under-represented, as well as mobilizing greater resources on theirbehalf.75 An educational or dramatic appearance in court orbefore a legislature designed to evoke empathy in the audiencemay achieve these ends.76 The third dimension is advocacy focus-ing on the client community's own political consciousness, whichthus empowers them to change their own world.77 This last dimen-sion involves "collaborative communicative practice. ' 78 By view-ing this work in terms of dimensions rather than models, it ispossible for any single act to create several different waves of im-pact. This approach therefore encourages an integrated approachin which every action can have multiple impacts and achieve multi-ple goals.
2. Approaches Toward and Methods of Lawyering forSocial Change
Whichever theoretical underpinning a political lawyer employs,she also has a broad range of methodological options in pursuingthis ideology. This section explores these methods, focusing on the
70. See id. at 1-2.71. See supra note 63.72. See Lucie E. White, Collaborative Lawyering in the Field? On Mapping the
Paths from Rhetoric to Practice, 1 CLINICAL L. REV. 157 (1994) [hereinafter White,Collaborative Lawyering].
73. See id. This dimension would also encompass work on underrepresentedissues.
74. See id.75. See id.76. See id. These notions parallel those of a cultural shift requiring acceptance by
mainstream society. See discussion supra text accompanying notes 48-49.77. See White, Collaborative Lawyering, supra note 72, at 157.78. Id. at 158. See also infra text accompanying notes 165-174.
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organization's overall disciplinary approach and the actual tools atthe lawyer's disposal.
a. Overall Organizational Approach: Exactly What Type ofWork Is This?
Regardless of the theoretical model employed in a social move-ment, most lawyering for social change fits into one of two broadmethodological models: 1) doctrinal development or 2) direct cli-ent advocacy. 79 Doctrinal development, also known as impact liti-gation, focuses on the evolution of a particular novel legal principleand is exemplified by the First Amendment test-case approach ofthe American Civil Liberties Union ("ACLU"). 80 Organizationssuch as the ACLU "select cases that will have the greatest impact,cases that will have the potential to break new ground and to es-tablish new precedents that will strengthen the freedoms we allenjoy.
' 81
Direct client advocacy, on the other hand, involves serving thelegal needs of a given client, as illustrated by in-house organiza-tional lawyers or legal services offices.82 Legal services offices onceencompassed aspects of both models,83 but restrictions on the useof legal services funding have prevented such organizations fromengaging in large-scale impact work.84 Other hybrids of thesemodels include organizations with in-house legal units functioningas both corporate counsel and law reform units, such as PlannedParenthood Federation of America, 85 and organizations that pro-vide legal services and perform law reform work while leaving or-
79. See Hunter, supra note 50, at 1021.80. See id. Other examples include Lambda LDF's work to secure the right to
marry for gays and lesbians, see About Lambda, supra note 63, and NOW LDEF'swork to protect reproductive freedom and secure gender equity, see About NOWLDEF, supra note 35.
81. Guardian of Liberty: American Civil Liberties Union, supra note 64.82. See Hunter, supra note 50, at 1021.83. See id.84. See Symposium, The Future of Legal Services: Legal and Ethical Implications
of the LSC Restrictions, 25 FORDHAM URB. L.J. 279, 280 (1998) (noting that Congressrestricted the kinds of services local legal services organizations receiving federalmoney could provide, including proscriptions on welfare reform lobbying and partici-pation in class actions (citing Omnibus Consolidated Rescissions and AppropriationsAct of 1996, Pub. L. No. 104-134, § 504(7), (16), 110 Stat. 1321 (1996))).
85. See A History of Protecting Reproductive Health Services in the Courts, <http://www.plannedparenthood.org/ library/ABORTION/History.htnil> (visited Feb. 24,2000) (detailing Planned Parenthood's work before the United States SupremeCourt).
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ganizational issues to outside counsel, such as Gay Men's HealthCrisis.86
b. Methodology: What Are the Tools to Use?
Which tool the lawyer decides to employ at a given time is oftena matter of careful interpretation and prediction on the part of thelawyer. The devices available to lawyers working for social changeare diverse and varied. With mechanisms such as impact litigation,legislative advocacy, grassroots organizational efforts, public edu-cation, media strategies, civil disobedience and narrative at theirdisposal, the modes of operating vary from cause to cause and law-yer to lawyer.87
Several legal theorists have proposed using one method for so-cial change over another. Stoddard suggests that legislative law-making is the most effective means for creating social change.88 Headvocates that it is "the avenue of change most likely to advance'culture-shifting' as well as 'rule-shifting' - the method of lawmak-ing most likely to lead to absorption into the society of new ideasand relationships. '89 He does not completely discount the value ofjudicial lawmaking - judges announcing new legal formulations -however.9" Lawsuits may effectively highlight issues with deep cul-tural import, thereby forcing government to examine them.91 Suchjudicial lawmaking often fails to interest the public, however, be-cause it focuses on the rules that structure society rather than onthe issues that underlie those rules.92 The public will be concernedwith the basic cultural issues that shape society, but not with thelegal rules that result from those issues and thus lawsuits, whichinherently focus on legal rules, will not gain widespread socialsupport.93
86. See Hunter, supra note 50, at 1021; GMHC at a Glance (visited Feb. 24, 2000)<http://www.gmhc.org/aboutus/gmhcmain.html> (detailing GMHC's advocacy workin the courts); GMHC Directory (visited Feb. 24, 2000) <http://www.gmhc.org/contact/directry.html> (detailing GMHC's legal services).
87. See About NOW LDEF, supra note 35; About the NAACP Legal DefenseFund, supra note 35; About Lambda, supra note 63; Guardian of Liberty: AmericanCivil Liberties Union, supra note 64.
88. See Stoddard, supra note 39, at 985.89. Id.90. See id. at 985-86.91. See id.92. See id.93. See id.
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Professor Gerald Rosenberg agrees that judicial lawmaking byitself is less likely to bring about social change.94 In examining thecivil rights, abortion and women's rights, environmental and crimi-nal law reform movements, he concludes that the courts can helpproduce social change, but that often these judicial decisions arejust a part of a long-term multifaceted social movement.95 Henotes that "[a] court's contribution, then, is akin to officially recog-nizing the evolving state of affairs, more like the cutting of the rib-bon on a new project than its construction. ' 96 Patterns of changeand sympathetic movements within the larger culture thus serve asthe catalysts for successful social change legal battles.97
Hunter proposes, however, that effective culture shifting cannotbe assigned to a particular legal arena. "Breakthrough moments inlaw occur rarely but not randomly, regardless of arena. They usu-ally follow long periods of incremental, often nearly imperceptible,social change occurring at a glacial pace. When they do occur, theycrystallize what has gone before at the same instant that they pro-pel social structures forward." 98 She agrees that majoritarian legis-lative victories can be more politically sound than judicialrenderings of the Constitution, despite a statute's being subject tojudicial review,99 but she also suggests that the most powerful activ-ity within social change lawyering is the use of litigation to obtainenforcement and comprehensive interpretation of statutes.1 ° °
Hunter further maintains that a multitude of complex structuralfactors determine whether legislation or litigation serve as thedominant force at a given time, including the roles of the state andeconomic market, the nature of the rights being sought, and thelarge-scale political climate.101
Minow notes that many studies of law and social change focussolely on the courts, and more specifically, on the SupremeCourt.10 2 She suggests that this emphasis is an extremely short-sighted view and that an appropriate framework for evaluating so-cial change efforts would focus on all federal and state courts, as
94. See GERALD N. ROSENBERG, THE HOLLOw HOPE: CAN COURTS BRING
ABOUT SOCIAL CHANGE? (1991).95. See id. at 338.96. Id.97. See id. at 337.98. Hunter, supra note 50, at 1012.99. See id. at 1012.
100. See id.101. See id. at 1013.102. Minow, Law and Social Change, supra note 9, at 173.
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well as state and federal legislation. 10 3 Further, she submits that"law" should also include "the norms about which individualscome to have consciousness, whether that consciousness derivesfrom judicial decisions, statutes or more general sources of rights toobject to mistreatment[,]"'1 4 as well as the alternative regimes es-tablished by "the concerted voluntary efforts by and on behalf ofdisenfranchised people to create services and programs denied tothem by the formal legal system.' 10 5
Lawyers clearly have a wide range of choices before them in de-termining how to approach a social change endeavor and whattools to implement in achieving their goals. Organizations acrossthe political spectrum may use the same approach while ideologicalopposites may employ the same methodology. No matter whatchoices political lawyers make regarding how to accomplish thiswork, the end goal is always the same - the successful effecting ofsocial change.
]I. THE LEGITIMACY OF LAWYERING FOR SOCIAL CHANGE
Questions remain as to whether the use of these legal tools toeffect social change is a legitimate form of legal practice. Scholarssupport both sides of the debate. This Part examines the variousarguments for and against lawyering for social change.
A. Opponents of Lawyering for Social Change
Opponents of political lawyering raise two main contentions.One argument concerns the impact of political lawyering on thelawyer-client relationship. 1°6 Other issues arise from the anti-majoritarian nature of using the courts to reach goals that couldnot be attained through ordinary democratic means. 10 7
1. The Effect of Political Lawyering on Lawyer-ClientRelationship
The primary concerns raised regarding the lawyer-client relation-ship focus on how political lawyers can manipulate their clients and
103. See id. at 173-74.104. Id. at 174 (citing Frank Michelman, Law's Republic, 97 YALE L.J. 1493
(1988)).105. Id. at 175.106. See LUBAN, LAWYERS & JUSTICE, supra note 16, at 303.107. See id. at 303. The critique that this work is anti-majoritarian means that
groups who cannot achieve their goals through the usual political channels and seekremedies in court thwart the will of the people. See id.
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how the lawyer may elevate the interests of the cause over those ofthe individual client.10 8 Professor Richard Wasserstrom suggeststhat the lawyer's role in the traditional lawyer-client relationship -
that of immersion in and embodiment of the client's position inthe legal arena - prevents the pursuit of social change. 10 9
The very essence of the lawyer's institutional role is to submergehimself in his client's position and to represent that interest inthe legal arena as forcefully as possible.... [B]eing an advocatein our legal system - where one does not or need not chooseone's causes - encourages a non-critical, non-evaluative, un-committed state of mind. 110
The traditional model of the lawyer-client relationship of whichWasserstrom speaks is also known as client-centered lawyering."'This model is based on the belief that clients bear the full conse-quences of their own decisions and are therefore in the best posi-tion to understand both the legal and non-legal significance of theirchoices." 2 Consequently, a lawyer counsels her clients most effec-tively by helping them explore all possible results of their actionsso that they may make decisions that best serve their own needs." 3
The American Bar Association ("ABA") has encouraged this typeof client-focused model by preventing lawyers from creating theirown cases through bans on types of advertising and barratry." 4
Although non-profit organizations engaging in litigation as a formof political expression are exempt from these rules on First
108. See id. at 317.109. See Richard Wasserstrom, Lawyers and Revolution, in RADICAL LAWYERS:
THEIR ROLE IN THE MOVEMENT AND IN THE COURTS 74, 80 (Jonathan Black ed.,1971).
110. Id.111. See, e.g., DAVID A. BINDER, ET AL., LAWYERS AS COUNSELORS: A CLIENT
CENTERED APPROACH 16-24 (1991); Stephen Ellmann, Client-Centeredness Multi-plied: Individual Autonomy and Collective Mobilization in Public Interest Lawyers'Representation of Groups, 78 VA. L. REV. 1103 (1992); Stephen Ellmann, Lawyersand Clients, 34 UCLA L. REV. 717 (1987); Nancy D. Polikoff, Am I My Client?: TheRole Confusion of A Lawyer Activist, 31 HARV. C.R.-C.L. L. REV. 443 (1996); Wil-liam H. Simon, Lawyer Advice and Client Autonomy: Mrs. Jones's Case, 50 MD. L.REV. 213 (1991); Ann Southworth, Taking the Lawyer Out of Progressive Lawyering,46 STAN. L. REV. 213 (1993); Lucie E. White, To Learn and Teach: Lessons fromDriefontein on Lawyering and Power, 1988 Wis. L. REV. 699 (1988) [hereinafterWhite, To Learn and Teach].
112. See BINDER, supra note 111, at 17; Polikoff, supra note 111, at 458.113. See BINDER, supra note 111, at 19-22; Polikoff, supra note 111, at 458.114. See ABA Canons, supra note 13, Canons 27-28; Model Code, supra note 1, EC
2-3 to 2-5, 2-8 to 2-10, 2-15, DR 2-101 to 2-104; Model Rules, supra note 13, Rules 7.1to 7.5.
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Amendment grounds,'15 many who oppose political lawyering viewsuch recruitment of clients as improper.' 16
When a lawyer has a vested interest in the concerns of the groupshe represents, as is so often the case in political lawyering, theclient-centered model becomes challenging to maintain.
When I feel that I, as a member of the group that my clientsrepresent, also bear the consequences of their choices, it is diffi-cult maintaining my role as a counselor. My feelings of connec-tion to my clients imply that we have a common cause, andunless I am careful, may deny my clients the client-centered as-sistance that they should receive. 1 7
The handling of test cases or impact litigation is an area in whichthese difficulties become apparent. Some opponents of politicallawyering express concern that the pursuit of such cases serves thepolitical theories of the lawyers rather than the interests of the cli-ents." 8 Within the context of a nonprofit organization, the needsof the individual client may conflict with the vision of the organiza-tion."19 Whereas the nonprofit organization may see the purposeof the legal program as improving the situation of the client group,this view may require tradeoffs with the service to the individualclient.'20 In addition, the lawyer may have to juggle the organi-zation's procedures with responsibilities to the court.' 2 ' Theseissues raise potential conflicts of interest between lawyers andtheir clients under the ABA's ethical codes.' 2 2 They are also
115. See In re Primus, 436 U.S. 412 (1978). See also discussion infra notes 155-157and accompanying text.
116. See LUBAN, LAWYERS & JUSTICE, supra note 16, at 317.117. Polikoff, supra note 111, at 458.118. See LUBAN, LAWYERS & JUSTICE, supra note 16, at 317 (citing CHARLES
WOLFRAM, MODERN LEGAL ETHICS 940 (1986)).119. See Trubek, supra note 7, at 425.120. See id.121. See id.122. See Model Code, supra note 1, EC 5-2 ("A lawyer should not accept proffered
employment if his personal interests or desires will, or there is a reasonableprobability that they will, affect adversely the advice given or services to be renderedthe prospective client."), DR 5-101(A) ("Except with the consent of his client afterfull disclosure, a lawyer shall not accept employment if the exercise of his professionaljudgment on behalf of his client will be or reasonably may be affected by his own ...personal interest."); Model Rules, supra note 13, Rule 1.7.
A lawyer shall not represent a client if the representation of that client maybe materially limited by the lawyer's responsibilities.., to a third person, orby the lawyer's own interests, unless: (1) the lawyer reasonably believes therepresentation will not be adversely affected; and (2) the client consents af-ter consultation.
Model Rules, supra note 13, Rule 1.7(b).
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antithetical to the lawyer's obligations of zealous advocacy andloyalty.
123
In discussing these issues, Professor Dean Hill Rivkin stated:[W]e question anyone's right to make.., an attempt to speakfor those who have not spoken for themselves..... [Lawyers forsocial change] find it enormously hard not to silence and disableclients through [their] empathy and compassion, much less[their] distance and, yes, despair. There are theories of empow-erment, strategies for dealing with differences, empathy training- they help - but the tensions in the lawyer-client relationshipin reform litigation... persist. 124
He posits that the clients involved in this type of endeavor areoften voiceless and that even if the lawyer implements strategies tolevel the power differential between the lawyer and the client, thelawyer will still inevitably dominate the client, thus steppingoutside the bounds of the client-centered counseling model. 25
Other scholars suggest that beyond the inability to sustain a cli-ent-centered relationship with their clients, political lawyers mighteven harm the interests of their clients. Professor Nancy Polikoffbelieves that a lawyer's legal and activist lives must be kept totallyseparate, particularly when that activism involves civil disobedi-ence.' 26 Behaving as an activist when one is supposed to be actingas an officer of the court de-legitimizes the attorney in the eyes ofthe court and consequently harms the client. 27 That legitimacy isneeded because it grants the lawyer a level of access to the judicialsystem that the clients themselves do not have. 28 The separationbetween lawyering and activism, therefore, is essential. 29
Dean James Douglas suggests that a lawyer must logically con-sider every aspect of an issue, rather than just the side that she isadvocating according to both the law and the ethical requirements
123. See Model Code, supra note 1, at DR 7-101(A) ("A lawyer shall not intention-ally ... [f]ail to seek the lawful objectives of his client through reasonably availablemeans"); Model Rules, supra note 13, Rule 1.3 cmt. 1 ("A lawyer should pursue amatter on behalf of a client despite opposition, obstruction or personal inconvenienceto the lawyer"); Rule 1.7 cmt. 4 ("Loyalty to a client is also impaired when a lawyercannot consider, recommend or carry out an appropriate course of action for the cli-ent because of the lawyer's other responsibilities or interests. The conflict in effectforecloses alternatives that would otherwise be available to the client.").
124. Dean Hill Rivkin, Reflections on Lawyering for Reform: Is the Highway AliveTonight?, 64 TENN. L. REV. 1065, 1067-68 (1997).
125. See id. at 1067.126. See generally Polikoff, supra note 111.127. See id. at 448.128. See id.129. See id. at 448-49.
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of a lawyer to zealously represent her client. 130 As a result, a law-yer is precluded from engaging in social activism.1 3 ' He submitsthat because a true social activist operates from emotion-based mo-tives, it is less likely that the lawyer will have the objectivity re-quired to fully explore her opponent's perspective and that withoutthis ability, she cannot adequately represent her client. 132
2. Anti-Majoritarian Use of the Courts
Another objection to lawyering for social change stems from theperception that it is a way of permitting the courts to supercede thedemocratic process. These concerns are based on the idea that "[i]tis wrong for groups that are unable to get what they want throughordinary democratic means (pressure-group politics, the legislativeprocess, electing an executive who does things their way) to frus-trate the democratic will by obtaining in court what they cannotobtain in the political rough-and-tumble.' ' 33 Those supporting thisview see clear divisions of labor among the branches of govern-ment. The lawyer's job is to litigate rather than to seek legislative-like change through the court system.13 4 Courts should assume afinite position in a democratic system. 35 When lawyers ask judgesto legislate social policy, they are replacing the will of the peoplewith their own. 36
In furtherance of the lawyers' defined role in the democraticprocess, Douglas asserts that "a lawyer's role in society is not tochange the rules of the game, but to assist in maintaining the rulesand to help resolve conflicts under the established rules."'1 37 Doug-las is concerned that political lawyers' focus on altering the socialorder rather than on the legal system can be detrimental to theclient.' 38 He suggests that lawyers should work within the given
130. See Douglas, supra note 44, at 405.131. See id. at 407.132. See id. at 405.133. LUBAN, LAWYERS & JUSTICE, supra note 16, at 303.134. See Tushnet, Thurgood Marshall, supra note 31, at 1144 (citing JOHN M. JOR-
DAN, MACHINE-AGE IDEOLOGY: SOCIAL ENGINEERING AND AMERICAN LIBER-
ALISM, 1911-1939 (1994)).135. See LUBAN, LAWYERS & JUSTICE, supra note 16, at 358.136. See id.137. Douglas, supra note 44, at 406.138. See id. at 405-06.
Social activists are not concerned with the rule of law; they are, instead, con-cerned with changing society and the way members of society interrelatewith each other. The social activist is therefore, more likely to breach therule if to do so might result in the accomplishment of the desired goal, achange in society.
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legal contexts, rather than try to change those contexts. The crea-tion of this change is a task for activists, not lawyers. The lawyer'stask is to describe and maintain the rules that result from thechanges in thought prompted by the action of activists.139
B. Proponents of Lawyering for Social Change
Scholars who support lawyering for social change advance twomain reasons why this position is legitimate. The first relates to thenature of the law as an articulation of social morality, and the sec-ond regards the structure of the legal system and the right of allpeople to gain access to justice.
1. Law As An Articulation of Social Morality
According to some scholars, using the law to effect social changeis well within the lawyer's authority because the law reflects soci-ety's morals and standards. 40 Stoddard notes that "[t]he law is notnow, and never has been, simply a set of formal rules; it is also themost obvious expression of a society's values and concerns, and itcan and ought to be used to improve values and concerns."'' As aresult of this vision of law as a tool for the betterment of society,groups seeking social change have always turned to the law for itspromises of due process and equal treatment. 42
Some scholars view political lawyering, therefore, as a logical ex-tension of the lawyer's personal commitment to social change. Forexample, Professor Gary Bellow says, "Political lawyering... sim-ply describes a medium through which some of us with law trainingchose to respond to the need for change in an unjust world."' 43 Henotes further:
Social vision is part of the operating ethos of self-conscious lawpractice. The fact that most law practice is not done self-con-sciously is simply a function of the degree to which most lawpractice serves the status quo.... The kind of political lawyering[I have practiced] is distinguishable from general law work bythe degree to which it was fueled by a more dissatisfied andchange-oriented self-consciousness than the law practice of most
Id.139. See id. at 407.140. See Stoddard, supra note 39.141. Id. at 971.142. See Jane E. Larson, Introduction: Third Wave - Can Feminists Use the Law to
Effect Social Change in the 1990s?, 87 Nw. U. L. REV. 1252, 1252 (1993).143. Gary Bellow, Steady Work: A Practitioner's Reflections on Political Lawyering,
31 HARV. C.R.-C.L. L. REV. 297, 309 (1996).
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of our contemporaries .... It seems enough here to say that"vision-making" work is fundamental to the activist strategiespolitical lawyering inevitably embodies.144
Lawyers engaged in this work thus use the law to advance theirown visions of an ideal society in furtherance of the notion that thelaw serves as a reflection of societal values.
2. Structure of the Legal System
Another reason presented for the validity of this work lies in theunique role that lawyers play in the legal system. 145 Luban notes:
It is an obvious fact.., that all of our legal institutions.., aredesigned to be operated by lawyers and not by laypersons.Laws are written in such a way that they can be interpreted onlyby lawyers; judicial decisions are crafted so as to be fully intelli-gible only to the legally trained. Court regulations, court sched-ules, even courthouse architecture are designed around theneeds of the legal profession. 146
Lawyers thus retain a monopoly on legal services. 147 This legalstructure obligates lawyers to work for those in need, not merelybecause of the demand for public services, but because of the im-plicit right to "Equal Justice Under Law.' 1 48 The notion that all
144. Id. at 301-02.145. See LUBAN, LAWYERS AND JUSTICE, supra note 16.146. Id. at 244. Some would argue that the response to this problem should be the
de-regulation of the legal profession. See, e.g., LUBAN, LAWYERS & JUSTICE, supranote 16, at 269-77; see also Russell G. Pearce, The Professionalism Paradigm Shift:Why Discarding Professional Ideology Will Improve the Conduct and Reputation ofthe Bar, 70 N.Y.U. L. REV. 1229 (1995) (noting the transformation of law practicefrom a profession to a business, and suggesting reforms such as permitting nonlawyersto practice and substituting market and government regulation for self-regulation).This Note does not address the merits of this claim, but the de-regulation of the legalsystem is unlikely to happen any time soon. Until it does, this Note proposes thatpolitical lawyering is the best option to ensure that every person has access to thecourt system.
147. See LUBAN, LAWYERS & JUSTICE, supra note 16, at 286.Lawyers... retail a commodity manufactured by the state: law. They have,moreover, been granted a monopoly on it, in ... several ways... : throughunauthorized practice regulations, through the fashioning of laws and regu-lations, through the erection of a professionalized system designed in largepart around the needs of the law retailers. The adversary system itself ispredicated on the monopoly of lawyers.
Id.148. See id. at 248-57. Luban defines this right as implicit, meaning rights granted
"by the rules of the game," rather than moral, meaning those rights without which aperson is "a mere thing and not ... a moral agent." Id. at 248-49. "Equal JusticeUnder Law" is carved above the entrance to the United States Supreme Court build-ing. See Nadine Strossen, Pro Bono Legal Work: For the Good of Not Only the Pub-
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people should be afforded equal justice is one of the fundamentallegitimizing principles of the American legal system.14 9 This princi-ple implies equal political rights, such as consent to governance, aswell as equality of legal rights, meaning that every person has aright to legal redress of injuries through the court system.'50 Togain this access, however, requires the help of lawyers. In order tosustain the legitimacy of the legal system, lawyers must guaranteethat legal services are available to all that need them. 51
Given these justifications for providing legal services to thoseotherwise lacking access to them, Luban argues further that repre-senting these clients in a politicized manner in an attempt to re-form laws, to further socio-political goals or to alter the socialorder is also justified.1 52 He argues that "on the basis of an ade-quate theory of democracy, impact work, including class-actionsuits, lobbying, and organizing by public interest lawyers, is a boonto democratic politics. Impact work deserves not just tolerationbut support by a community dedicated to a democratic way oflife."1'5 3
m. THE WORK OF LAWYERING FOR SOCIAL CHANGE
Having explored the scholarship regarding political lawyering,this Part argues that lawyering for social change is entirely legiti-mate. Further, this Part proposes ideological and methodologicalmodels for engaging in such work.
A. Lawyering for Social Change is LegitimateDespite various objections to the endeavor of lawyering for so-
cial change, this Note advocates that it is in fact a legitimate enter-prise. The notions of the law as a reflection of social morality andthe role of the lawyer in the legal profession support the lawyer'sengaging in this type of work. 154 In addition, the concerns positedby opponents of political lawyering can be assuaged by taking mea-sures to level power differentials between lawyers and clients andby examining the exceptions to the usual functioning of the demo-cratic system.
lic, But Also the Lawyer and the Legal Profession, 91 MICH. L. REv. 2122, 2139(1993).
149. See LUBAN, LAWYERS & JUSTICE, supra note 16, at 252-56.150. See id. at 251-55.151. See id.152. Id. at 238. See generally id. at 293-391.153. Id. at 304.154. See supra Part II.B.
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1. Responses to Concerns About Client Manipulation
Many arguments raised by opponents of social change lawyeringbased on the effect of this type of lawyering on the lawyer-clientrelationship can be overcome by an examination of applicable legalstandards. As a threshold matter, recruiting clients for social jus-tice activities constitutes wholly legitimate action.'55 The U.S. Su-preme Court has recognized that solicitation in furtherance ofsocial justice causes deserves First Amendment protection becauseit is a form of political expression. 156 The usual concerns regardingsolicitation and advertising focus on attorney pecuniary interestthat are not present when these activities are carried out by organi-zations whose primary goal is to raise and explore social justiceissues. 57
Concerns over exploitation of these solicited clients can be ad-dressed by full disclosure of the essential implications, risks anduncertainties involved, as well as the political goals of both the law-yer and the client. 58 The resulting work must be the product ofmutual understanding, information sharing and effort on the partsof both lawyer and client.' 59 As Luban points out, there are sev-eral reasons why a plaintiff may have to be recruited, including ig-
155. See In re Primus, 436 U.S. 412 (1978) (holding that solicitation of prospectiveclients by legal organizations whose primary purpose is to meet political aims consti-tutes expressive and associational conduct that is entitled to First Amendment protec-tion, thus exempting a lawyer engaging in these activities from disciplinary action).
156. Id. at 428 (noting that for the ACLU, "'litigation is not a technique of resolv-ing private differences'; it is 'a form of political expression' and 'political associa-tion."' (quoting NAACP v. Button, 371 U.S. 415, 429, 431 (1963))); see also NAACPv. Button, 371 U.S. 415 (1963) (holding that the activities of the NAACP constitutemodes of expression and association which are protected by the First and FourteenthAmendments, thus exempting them from the Virginia prohibitions on solicitation). InButton, the Court held that the solicitation of potential clients in order to further thecivil rights goals of the NAACP was within the right "to engage in association for theadvancement of beliefs and ideas." Button, 371 U.S. at 430 (quoting NAACP v. Ala-bama, 357 U.S. 449, 460 (1958)).
157. See Primus, 436 U.S. at 429-431, 434-37. The Court held that the other tradi-tional concerns regarding solicitation and barratry, including undue commercializa-tion of the legal profession, are absent when a non-profit organization offers free legalservices. See id. at 437. The Court noted, further, that as the ethical codes impose anobligation to serve the public interest, the ethical rules have traditionally exemptedsolicitation via offers of free representation to those with limited ability to obtainlegal service on their own from the general bans on solicitation. See id. at 437 n.31.See also Button, 371 U.S. at 440-41 (noting that "regulations which reflect hostility tostirring up litigation have been aimed chiefly at those who urge recourse to the courtsfor private gain, serving no public interest" and that "[o]bjection to the interventionof a lay intermediary ... also derives from the element of pecuniary gain").
158. See LUBAN, LAWYERS & JUSTICE, supra note 16, at 318.159. See id.
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norance on the part of potential plaintiffs that they are victims ofillegal actions, the high cost of hiring lawyers for law reform activi-ties and the difficulty of litigating against large institutions. 16°
Whether the lawyer recruits the client or the client seeks out thelawyer is inconsequential so long as the client is fully informed andwilling to undertake the litigation. 161
The response to concerns about client manipulation lies in takingmeasures to level the potential power differential between the law-yer and the client, thereby helping to avoid the feared manipula-tion, and engaging in collaborative moral discourse. As mentionedpreviously, the use of a client-centered model of lawyering doesnot always work effectively in social justice settings. 162 It may notbe necessary to eliminate all aspects of this model, however. It iscrucial to provide the client with as much information as possibleto aid in decision-making, but, as Bellow notes:
[T]he practice of law always involves exercising power. Exercis-ing power always involves systemic consequences, even if thesystemic impact is a product of what appear to be unrelatedcases pursued individually over time. Lawyers influence andshape the practices and institutions in which they work, if onlyto reinforce and legitimate them. Clients, similarly, bring totheir legal advisers and representatives claims and concerns thatarise from and are examples of underlying institutional arrange-ments and culturally created controls.163
This raises the question of how to avoid exploiting this powerdifferential.
Bellow addresses the potential for a lawyer's abuse of power,particularly where the clients being served are in some way vulner-able, and recognizes that choice is never equally allocated in anyclient-lawyer venture. 64 These power concerns can be addressedby employing some method of collaborative lawyering,' 65 entering
160. See id.161. See id.162. See supra text accompanying notes 109-125.163. Bellow, supra note 143, at 301.164. See id. at 302.165. See, e.g., Anthony V. Alfieri, Practicing Community, 107 HARV. L. REV. 1747
(1994) [hereinafter Alfieri, Community]; Anthony V. Alfieri, Reconstructive PovertyLaw Practice: Learning Lessons of Client Narrative, 100 YALE L.J. 2107 (1991);Anthony V. Alfieri, The Antinomies of Poverty Law and a Theory of Dialogic Em-powerment, 16 N.Y.U. REV. L. & Soc. CHANGE 659 (1987-88) [hereinafter Alfieri,Antinomies]; Anthony V. Alfieri, Speaking Out of Turn: The Story of Josephine V., 4GEO. J. LEGAL Emics 619 (1991); GERALD LOPEZ, REBELLIOUS LAWYERING: ONE
CHICANO'S VISION OF PROGRESSIVE LAW PRACrICE (1992); White, To Learn &
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into alliances with clients based on mutual commitments and influ-ence, with the respect and mutuality that such relationships entailcounterbalancing some of the skewed power issues. 166 Collabora-tive lawyering aims to obscure the differences between lawyers andlay people and between legal and non-legal tasks, as well as to po-liticize the clients' efforts and involve the lawyer heavily in the cli-ent's work. 67
Lawyers and clients can create these collaborations through di-verse methods. Some commentators suggest highly political ef-forts, focusing on "individual and collective client acts of self-determination in order to broaden social and economic forms ofdemocracy. "168 These efforts would center on organizing, mobiliz-ing and education. 169 Others focus on examining and critiquing thesystem in developing strategies and approaches in order to stimu-late change on a consciousness level. 170 This notion is referred toas "lawyering in the third dimension" and emphasizes raising theclient's consciousness in order to obtain a clearer picture of theproblems needing solving and appropriate solutions.' 7 ' Finally,others suggest teaching self-help and lay lawyering to empower cli-ents to help themselves in traditionally legal contexts. 72 As one
Teach, supra note 111; White, Collaborative Lawyering, supra note 72; Lucie E.White, Mobilization on the Margins of the Lawsuit: Making Space for Clients to Speak,16 N.Y.U. REV. L. & Soc. CHANGE 535 (1987-88); Lucie E. White, Subordination,Rhetorical Survival Skills, and Sunday Shoes: Notes on the Hearing of Mrs. G., 38BuFF. L. REV. 1 (1990).
166. See Bellow, supra note 143, at 302-03.167. See Richard D. Marsico, Working for Social Change and Preserving Client Au-
tonomy: Is There a Role for "Facilitative" Lawyering?, 1 CLINICAL L. REV. 639, 654(1995).
168. Alfieri, Community, supra note 165, at 1762.169. See Alfieri, Antinomies, supra note 165, at 665, 694-95.170. See White, Collaborative Lawyering, supra note 72, at 157-58; White, To Learn
& Teach, supra note 111, at 761-62.171. See White, To Learn & Teach, supra note 111, at 761. This is a process in
whichsmall groups reflect together upon the immediate conditions of their lives.The groups first search their shared reality for feelings about that reality thathave previously gone unnamed. They then attempt to re-evaluate thesecommon understandings as problems to be solved. They collectively designactions to respond to these problems and, insofar as possible, to carry themout. They then continue to reflect upon the changed reality, thereby deep-ening their analysis of domination and their concrete understanding of theirown power.
Id. This methodology is intended to help subordinated communities emancipate theirconsciousness from internalized oppression, helping bring individual techniques of en-during and confronting their common domination to the surface. See id.
172. See LoPEZ, supra note 165, at 70.
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author posits, "[e]mpowered clients can begin to speak in their ownvoice - and to solve their own problems - without relying exclu-sively on the advocacy of lawyers."173 Alliances formed in an effortto bring about social change create more personal bonds and thusview the lawyer and client as partners rather than as hero and vic-tim. 174 Employing some form of collaborative lawyering in a politi-cal lawyering context serves to both avoid concerns of lawyerdomination and to build a stronger grassroots community.
2. Responses to Emotional Concerns
The claim that emotion clouds the political lawyer's ability to bea zealous advocate 175 sells lawyer-activists short. Partisanship onthe part of a lawyer does not inherently eradicate the lawyer's abil-ity to examine both sides of a legal issue. The moral activist modelof lawyering not only permits personal connection to the lawyer'swork, but requires it.176 In addition, it is not possible for any per-son to completely separate emotion and rationality. 177 Emotionaldetachment is not a prerequisite for moral lawyering. 178 Requiringthis measure of separation removes the moral impetus for pursuingthe work.
Further, having an emotional commitment to the cause for whichthe lawyer is working can benefit the client. Being thus motivated,the lawyer is likely to be an even more zealous advocate on his orher client's behalf. Part of a lawyer's function is to be partisan.179
This partisanship does not automatically de-legitimize the lawyer,as Polikoff claims.1 80 Working for a cause to which the lawyer ismorally dedicated is wholly legitimate.
173. Angelo N. Ancheta, Community Lawyering, 81 CAL. L. REV. 1363, 1374(1993) (reviewing Lopez, supra note 165).
174. See Bellow, supra note 143, at 303.175. See supra text accompanying notes 130-132.176. See supra text accompanying notes 27-38.177. See MARY FIELD BELENKY ET AL., WOMEN'S WAYS OF KNOWING: THE DE-
VELOPMENT OF SELF, VOICE, AND MIND 134 (1986) (examining the idea of construc-tive knowledge as the combination of rationality and emotion, as well as theintegration of objective and subjective knowledge); see also CAROL GILLIGAN, IN ADIFFERENT VOICE: PSYCHOLOGICAL THEORY AND WOMEN'S DEVELOPMENT 69(1989) (recognizing that moral judgments can be tied to einotion and reasoning).
178. See Sisak, supra note 16, at 2764-65 (citing Carol Gilligan, Moral Orientationand Moral Development, in WOMEN & MORAL THEORY 19, 30-31 (Eva Feder Kittay& Diana T. Myers eds., 1987)).
179. See AUERBACH, supra note 15, at 270 (referring to the position of Edgar andJean Cahn).
180. See supra text accompanying notes 126-129.
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3. Responses to Democratic Objections
In response to the democratic objections to political lawyering,the generally recognized exception to upholding the will of the ma-jority is when that will infringes upon individual rights, particularlythose of a minority group.18 The policies made by the courts aretherefore not overt law making, but protection of minority view-points. 8 z In NAACP v. Button, 83 Justice Brennan's majority opin-ion noted that "collective activity undertaken to obtain meaningfulaccess to the courts [is] a fundamental right under the FirstAmendment to the U.S. Constitution."'' 84 The Court held:
In the context of NAACP objectives, litigation is not a techniqueof resolving private differences; it is a means for achieving thelawful objectives of equality of treatment by all government,federal, state and local, for the members of the Negro commu-nity in this country. It is thus a form of political expression.Groups which find themselves unable to achieve their objectivesthrough the ballot frequently turn to the courts.... And underthe conditions of modem government, litigation may well be thesole practicable avenue open to a minority to petition for re-dress of grievances.' 85
Further, this notion defeats the assertion that a lawyer's job ismerely to apply the rules and resolve conflicts under them. 86 Jus-tice Brennan acknowledged that in order to change the rules of asystem, one may have to get inside that system, and this ability togain entry is exactly the kind of access lawyers have to the legalsystem.'87 Additionally, the preamble to the ABA Model Rules ofProfessional Conduct states that:
181. See LUBAN, LAWYERS & JUSTICE, supra note 16, at 358.The American system of government is built on two basic, counterbalancingprinciples: 1) that the majority of the people, through democratically electedrepresentatives, governs the country and 2) that the power of even a demo-cratic majority must be limited to insure individual rights. In every era ofAmerican history, the government has tried to expand its authority at theexpense of individual rights. The American Civil Liberties Union exists tomake sure that doesn't happen, and to fight back when it does.
Guardian of Liberty: American Civil Liberties Union, supra note 64.182. See LUBAN, LAWYERS & JUSTICE, supra note 16, at 358; see also Julius L.
Chambers, Thurgood Marshall's Legacy, 44 STAN. L. REV. 1249, 1249 (1992) (notingthat Marshall believed that the courts were the "protectors of the powerless" (citingPayne v. Tennessee, 501 U.S. 808, 856 (1991) (Marshall, J. dissenting))).
183. 371 U.S. 415 (1963).184. Chambers, supra note 182, at 1250.185. Button, 371 U.S. at 429-30.186. See supra text accompanying notes 137-139.187. See Button, 371 U.S. at 429-30.
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[a]s a public citizen a lawyer should seek improvement of thelaw, the administration of justice and the quality of service ren-dered by the legal profession.... A lawyer should be mindful ofdeficiencies in the administration of justice and ... should helpthe bar regulate itself in the public interest.188
It contends that lawyers play a crucial role in preserving societyand that the realization of this role demands awareness by lawyersof their position in the legal system.'8 9
Finally, the very monopoly retained by lawyers on the provisionof legal services makes it all the more crucial that lawyers continueto work for social justice, championing both under-representedpeople and ideas. Lawyers are the only people who can ensurethat the courts act to protect those whose rights are infringed.
It thus becomes clear that lawyering for social change is a legiti-mate expression of the democratic protection of the marketplace ofideas and the rights of those who face unfair treatment becausethey belong to a minority group, express unpopular opinion or areotherwise excluded from the political process.
B. Contextual Lawyering as a Methodology for Social Change- The Social Engineering/Moral Activist Model as Prototype' 90
The Social Engineering/Moral Activist Model ("SEMA Model")most accurately addresses the issues involved with lawyering forsocial change. This model has its roots in moral activism and incor-porates a broad range of theoretical and methodological ap-proaches to the work of lawyering for social change. Because thismodel is based in moral activism, it provides both a personal moti-
188. Model Rules, supra note 13, Preamble, § 5.189. Id. Preamble, § 12.190. This Note combines the notions of social engineering and moral activism to
portray this model because neither image alone encapsulates the motivating sourceand methodology of these movements. Moral activism, as discussed by eminentphilosophers, focuses on the moral justification of the lawyer's role. See Tremblay,supra note 16, at 11. It requires the lawyer to accept moral responsibility for heractions rather than hiding within the traditional conception of the lawyer's role and toseek justice as a matter of vindicating legal ideals. See id. at 22-24 (citing LUBAN,
LAWYERS AND JUSTICE, supra note 16, at 125; William H. Simon, Ethical Discretion inLawyering, 101 HARV. L. REV. 1083, 1083-84, 1090 (1988)). The moral activistnotion's focus on accountability is not mutually exclusive from the governing classnotion, however. A lawyer can accept moral accountability even when working froman idea that serving the people stems from special duties arising out of privilege. Thatis why the model this Note advocates combines the moral drive of moral activism withthe ideals and methodology of social engineering. A lawyer employing this modelworks from a moral base, accepts moral accountability for her actions, and uses thelegal machinery at her disposal to work toward that morally derived goal.
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vation for the lawyer and an ethical imperative to be true to themission of the legal endeavor. Because the SEMA Model incorpo-rates elements of multiple approaches, it enables the lawyer to beresponsive to both the needs of the client and the legalundertaking.
1. Failure of the Governing Class Model
The governing class model1 91 promotes a hierarchical, unrealisticideal that going to law school and practicing the law grants lawyersa measure of honed insight above and beyond that of the averagecitizen. Further, it posits that this advanced ability in decision-making elevates lawyers in society and therefore creates a duty forlawyers to serve the general public. These notions do not truly re-flect today's cadre of lawyers. Law school certainly equips lawyerswith some of the keys to open the doors of the legal system, butthis knowledge is entirely unrelated to a higher ability to makejudgments. It simply teaches students what legal mechanisms mustbe used to fight certain legal battles.
In addition, most lawyers do not necessarily associate a duty toperform pro bono work with being a member of the privileged le-gal profession. 192 The participation of lawyers in pro bono servicesto the poor is extremely low. According to surveys conducted atthe beginning of the 1990s, approximately eighty percent of the barengages in no pro bono activity.193
Further, none of the definitions of lawyering for social changediscussed in this Note194 fit within the governing class ideal. Theyall involve moral determinations as a starting point, such as whatthe best life is for humans, whether there is value in fighting thestatus quo and in representing the voiceless, and whether value ex-ists in equality. These definitions involve moral motives ratherthan dutiful ones. These notions do not require special judgment,but they encourage using legal tools to work for moral causes.
191. See supra notes 15, 18-26 and accompanying text (discussing the governingclass conception of lawyering).
192. Some lawyers do see a duty arising out of the monopoly lawyers have on thelegal system. See supra text accompanying notes 145-151.
193. See Tigran W. Eldred & Thomas Schoenherr, The Lawyer's Duty of PublicService: More Than Charity?, 96 W. VA. L. REV. 367, 389-90 (1993) (citing A.B.A.CONSORTIUM ON LEGAL SERVICES AND THE PUBLIC, 1990 DIRECTORY OF PRIVATEBAR INVOLVEMENT PROGRAMS 146-47 (May 1990); COMMITrEE TO IMPROVE THEAVAILABILITY OF LEGAL SERVICES, FINAL REPORT TO THE CHIEF JUDGE OF THESTATE OF NEW YORK (April 1990)); Steven Wechsler, Attorneys' Attitudes TowardMandatory Pro Bono, 41 SYRACUSE L. REV. 909 (1990)).
194. See supra text accompanying notes 3-11.
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2. Law as a Reflection of Social Values
The definitions of political lawyering all point to the importanceof working for a substantively better society. 195 They establish themeaning of lawyering for social change firmly within the SEMAModel, as the lawyer works to alter the social order to reflect thevalues to which she is morally committed. These definitions sug-gest that the use of legal tools to work for the moral good is theultimate goal of lawyering. As a result, the SEMA Model serves tolegitimize the practice of working for social change.
3. Additional Client Safeguards Within the SEMA Model
The SEMA Model provides an additional way to address con-cerns regarding lawyer domination of clients. The issue of elevat-ing the lawyer's political goals over the client's individual goalsloses relevance when the lawyer and client engage in a relationshipof full disclosure and honesty. 96 Because the lawyer has a per-sonal investment in the success of the pursuit, the lawyer has anincentive to try to establish the parameters of the representation inadvance in order to prevent such a scenario.197 Once potential con-
195. See Esquivel, supra note 16, at 329-30 (arguing that "procedure-based concep-tions of justice fail to provide an adequate framework for public interest law becausethe pursuit of a substantively better society is an essential component of any move-ment for legal reform or enforcement of pre-existing rights").
196. See, e.g., Model Rules, supra note 13, Rule 1.7(b).A lawyer shall not represent a client if the representation of that client maybe materially limited by the lawyer's responsibilities to another client or to athird person, or by the lawyer's own interests, unless: (1) the lawyer reason-ably believes the representation will not be adversely affected; and (2) theclient consults after consultation.
Id. (emphasis added); Model Rules, supra note 13, Rule 1.7 cmt. 4 ("Considerationshould be given to whether the client wishes to accommodate the other interest in-volved."); Rule 1.8(f) (noting that a lawyer may be paid by a source other than theclient so long as the client knows about this arrangement and consents and so long asthe arrangement does not compromise the lawyer's independent professional judg-ment); Model Code, supra note 1, DR 5-107 (allowing the lawyer to be paid by a thirdparty so long as the client consents after full disclosure); ABA Canons, supra note 13,Canon 6 ("It is unprofessional to represent conflicting interests, except by express con-sent of all concerned given after a full disclosure of the facts.") (emphasis added).
197. See, e.g., Model Rules,.supra note 13, Rule 1.2(c) ("A lawyer may limit theobjectives of the representation if the client consents after consultation.").
The objectives or scope of services provided by a lawyer may be limited byagreement with the client or by the terms under which the lawyer's servicesare made available to the client .... The terms upon which representation isundertaken may exclude specific objectives or means. Such limitations mayexclude objectives or means that the lawyer regards as repugnant orimprudent.
Id. cmt. 4.
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flicts are out in the open, both the client and the lawyer have theright to accept them and continue the representation, or to renego-tiate or terminate the representation. 198 Thus, the SEMA Modelencourages moral discourse, through which the issue of power canbe diffused.
4. Methodology Under the SEMA ModelThe causes and ideals embraced by lawyers for social change are
extremely diverse; so too are the details, political issues, commu-nity concerns and underlying themes associated with them. Noneof these aspects is extricable from another. As a result, the beststrategy for achieving social change can change from moment tomoment. The SEMA Model suggests that a lawyer engaged in apolitical struggle must keep all available options at her disposaland consider a multitude of different ideologies. This strategy isthe best way to ensure progress.
Achieving successful social change requires long-term, dedi-cated, incremental work, utilizing every available tool to addressthe demands of the situation. The conditions of the political cli-mate are not easy to read, and therefore such determinations mustbe made carefully. The political lawyer must monitor social andpolitical sentiment closely to determine which method will be mosteffective at a given point in time. As Hunter notes, "[s]tructuralfactors determine whether legislation or litigation dominates anequality movement at any given moment: the roles of the state andthe market as allies or foes; the nature of the rights being sought;and the broader political climate in each arena."'199 Further, sheindicates that
Other factors complicate any brightline distinction between leg-islative and litigation arenas. Discursive communities arise inthe interstices of courts, legislatures, and enforcement agencies.The lawyers and others who work in, and against, and back andforth between these institutions create and disseminate under-standings of the law that then circulate in all those institutionsand in the broader society.20 0
In addition, grassroots work within communities, negotiations withadministrative agencies, public education and use of the media, andcoalition-building are all additional effective means of addressingsocial needs. To limit the work of a political lawyer to a particular
198. See supra notes 28-29 and accompanying text.199. Hunter, supra note 50, at 1013.200. Id. at 1014.
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genre would effectively tie her hands. The SEMA Model encour-ages the lawyer to use all of the tools at her disposal to reach theend goal.
CONCLUSION
The work of a lawyer for social justice is some of the noblestwork that can be done. It provides underrepresented people andideas with a voice in the legal arena. Political lawyering works toensure that our legal system protects the rights of all. Even theethics codes recognize the importance of doing this work.
Rules of law are deficient if they are not just, understandable,and responsive to the needs of society. If a lawyer believes thatthe existence or absence of a rule of law, substantive or proce-dural, causes or contributes to an unjust result, he should en-deavor by lawful means to obtain appropriate changes in thelaw. He should encourage the simplification of laws and the re-peal or amendment of laws that are outmoded.2 °1
Throughout their endeavors, political lawyers should be morallyengaged and accountable. Morality-based social engineering re-sults in vibrant, creative enterprises, as lawyers work to further thegoals they have deemed morally worthy. Whether through litiga-tion, public education seminars, rallies, lobbying or writing forscholarly journals, the work of a lawyer for social justice is neverdone. But it is always crucial.
201. See Model Code, supra note 1, EC 8-2.
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4 AS
Faculty Biographies
Samuel B. Cohen is a partner at Stecklow Cohen & Thompson, a boutique litigation firm with a focus in civil rights practice. He is also currently co-chair of NYCLA’s Civil Rights and Liberties Committee. Following police policy studies at Brooklyn Law School, he joined the Law Offices of Wylie M. Stecklow as an associate, and became a partner in early 2012. Samuel received citations for extraordinary citizenship from the New York State Assembly and New York City Council in 2011, as well as a certificate of special Congressional recognition for outstanding and invaluable service to the community.
Meghan DuPuis Maurus is an attorney at Maurus & Heinegg, a founding member of the New York LawCollective. After law school Meghan worked at the New Jersey Office of the Public Defender in Essex County, and then at the Palestinian Centre for Human Rights in Ramallah and Gaza City. After returning to New York in fall of 2011, Meghan worked as a Mass Defense Coordinator for the New York City Chapter of the National Lawyers Guild, defending hundreds of protesters and coordinating the Chapter’s mass defense work. Meghan is a member of the National Association of Criminal Defense Lawyers and the New York City Bar Association. Meghan has been honored by the National Lawyers Guild for their work as a defender of those arrested in the course of peaceful assembly and protest, and also received the Samuel Belkin Award in 2008.
Alan Levine , a civil rights and constitutional lawyer, began his legal career on Wall Street, from which he took a leave of absence during the Freedom Summer of 1964 to represent civil rights activists in Alabama and Mississippi. That fall he resigned from his law firm to continue doing civil rights work in the south, then returned to NYC where he worked as a New York Civil Liberties Union staff lawyer for the next 13 years. During that time, he directed NYCLU's students' rights project, co-authored the book, The Rights of Students, and litigated cases, including in the US Supreme Court, involving a broad range of civil rights and civil liberties issues. He was also an active participant in the Ocean Hill-Brownsville struggle for community control of the schools. He has taught constitutional litigation at NYC law schools and for five years directed Hofstra Law School's Constitutional Law Clinic. Levine also contributes to Beyond the Pale radio show on WBAI.
David B. Rankin has been actively involved in numerous first amendment cases and in the defense of protesters and bystanders arrested at or around demonstrations. During the Republican National Convention in 2004, he helped lead the National Lawyers Guild’s legal response to unconstitutional police practices by organizing nearly 1,000 lawyers and legal workers. Currently, Mr. Rankin is litigating numerous federal civil rights cases against the New York City Police Department and defending those arrested and accused of criminal acts. Mr. Rankin received a B.A. from Reed College and a J.D. from New York Law School. He was an assistant to the President of the ACLU. He is a member of the New York City Chapter of the National Lawyers Guild.
Paula Z. Segal is an attorney admitted to practice in New York State who has lived in Brooklyn for ten years and focused her work on building capacity and providing technical assistance for local community-based organizing and decentralized pedagogic practice. She writes about the law and geography as structures that shape life in the city. Paula is a graduate of City University of New York Law School at
Queens College, where she was a Haywood Burns Fellow in Human and Civil Rights and worked in the Economic Justice Project at Main Street Legal Services. She is a founding member of the NYC National Lawyers Guild Street Law Team. Before joining the legal profession, Paula taught English to Speakers of Other Languages, developed curricula and ran an all-volunteer adult English school on the Lower East Side. She was also a member of the Empty Vessel Project.
Norman Siegel is a partner in the Law Offices of Siegel, Teitelbaum & Evans LLP. He is a graduate of Brooklyn College (1965) and New York University's School of Law (1968). In 1973-76, as the New York Civil Liberties Union (NYCLU) Field Director, he spearheaded the historic New York campaigns for both the impeachment of President Richard M. Nixon and passage of the New York State Equal Rights Amendment. In 1985, the New York Civil Liberties Union named Norman Siegel Executive Director. For the next 15 years, Norman was on the frontline in some of New York City's most critical civil rights and civil liberties struggles; the creation of an independent Civilian Complaint Review Board; the successful defense of the Brooklyn Museum's right to exhibit controversial art; the fight for citizens' access to the steps of City Hall; the battle against involuntary hospitalization of people with mental illness; the struggle for improved community-police relations and greater accountability on the part of the NYPD. In private practice since 2002, Norman's work in civil rights and civil liberties law continues.
Michael L. Spiegel is an attorney admitted to practice in the state courts of New York and California, the United States District Courts for the Southern and Eastern Districts of New York, and the Northern and Eastern Districts of California, the United States Courts of Appeals for the Second and Ninth Circuits, and the United States Supreme Court. He attended Harvard College and City University of New York, and received his Juris Doctor degree from New York University School of Law. He was a Root Tilden Scholar at New York University School of Law, and he clerked for the Honorable Whitman Knapp during law school. Mr. Spiegel was CJA-appointed to represent two death row clients in federal habeas corpus proceedings in the Northern and Eastern Districts of California: Danielson v. Calderon in 1995, and Crittenden v. Ayers in 1996. In 1995, he returned to New York City and opened a solo practice focusing on police misconduct, first amendment, and death penalty constitutional litigation. Since 2005, he has been counsel to over 250 plaintiffs in the pending Consolidated RNC Litigation arising from mass arrests at the 2004 Republican National Convention. Mr. Spiegel was a faculty member at the American Association for Justice (formerly the American Trial Lawyers Association) Annual Convention Education Program, and has been a member of faculty for the annual Intensive Trial Advocacy Program at Cardozo Law School since 1993, and the same program at the University of San Francisco School of Law, among other teaching engagements.
Wylie M. Stecklow is the managing partner of Stecklow Cohen & Thompson, a boutique litigation firm with a focus in civil rights litigation. After graduating from Fordham Law School, Wylie worked with large corporate law firms including Curtis, Mallet-Prevost, Colt & Mosle and Davis Markel & Edwards. Wylie left corporate firm practice and spent two years learning about small firm practice while working for the legendary Bronx criminal attorney, Murray Richman. Wylie then started his own law firm in 1995 and has been helping people resolve their legal problems ever since.
