463 F.3d 167 (2nd Cir. 2006), 05-5341-CV, Field Day, LLC v. County of Suffolk

Docket Nº:05-5341-CV(L), 05-5870-CV(XAP), 05-6445-CV(CON).
Citation:463 F.3d 167
Party Name:FIELD DAY, LLC, f/k/a New York Music Festival, LLC, Aeg Live LLC, f/k/a Aeg Concerts LLC, Plaintiffs-Appellees-Cross-Appellants, v. COUNTY OF SUFFOLK, Suffolk County Department of Health Services, Suffolk County Executive Robert Gaffney, Commissioner of the Suffolk County Department of Health Services Brian Harper, Commissioner of the Suffolk Count
Case Date:September 12, 2006
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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463 F.3d 167 (2nd Cir. 2006)

FIELD DAY, LLC, f/k/a New York Music Festival, LLC, Aeg Live LLC, f/k/a Aeg Concerts LLC, Plaintiffs-Appellees-Cross-Appellants,

v.

COUNTY OF SUFFOLK, Suffolk County Department of Health Services, Suffolk County Executive Robert Gaffney, Commissioner of the Suffolk County Department of Health Services Brian Harper, Commissioner of the Suffolk County Police Department John C. Gallagher, Director of the Suffolk County Department of Health Services Robert Maimoni, Chief of the Bureau of Public Health Protection Bruce Williamson, Principal Public Health Sanitarian Robert Gerdts, Deputy Suffolk County Attorney Robert Cabble, Deputy Suffolk County Executive Joe Michaels, and Sergeant Patrick Maher of the Suffolk County Police Department, Defendants-Appellants,

New York State Health Commissioner Antonia C. Novello, Defendant-Appellant,

Town of Riverhead and Riverhead Chief of Police David Hegermiller, Defendants.

Nos. 05-5341-CV(L), 05-5870-CV(XAP), 05-6445-CV(CON).

United States Court of Appeals, Second Circuit.

Sept. 12, 2006

Argued: May 16, 2006.

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Christopher A. Jeffreys, Assistant County Attorney (Christine Malafi, County Attorney, on the brief), Hauppauge, NY, for Defendants-Appellants.

Gregory Silbert, Assistant Solicitor General (Michelle Aronowitz, Deputy Solicitor General, of counsel, Eliot Spitzer, Attorney General, on the brief), New York, NY, for Defendant-Appellant.

Charles E. Bachman (Peter Obstler, of counsel), O'Melveny & Meyers LLP, New York, NY, for Plaintiffs-Appellees-Cross-Appellants.

Before: MINER and WESLEY, Circuit Judges, and SWAIN, District Judge. 1

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MINER, Circuit Judge.

These consolidated interlocutory appeals and cross-appeal arise from two orders of the United States District Court for the Eastern District of New York (Hurley, J.) in an action brought against state, county, town, and individual public officer defendants, pursuant to 42 U.S.C. § 1983, alleging violations of First Amendment free speech rights. The underlying action arises from the failure by the county defendants to grant a permit to plaintiff concert promoters to hold a two-day concert festival in a public park. The complaint asserts both "facial" and "as applied" constitutional challenges. The first order, dated September 30, 2005:(i) declared portions of N.Y. PUBLIC HEALTH LAW § 225(5)(o) (the "Mass Gathering Law"), and the New York Sanitary Code, N.Y. COMP. R. & REGS. tit. 10, § 7-1.40, facially unconstitutional; (ii) severed the unconstitutional portions of the statute and regulation; and (iii) granted an injunction against application of those portions to plaintiffs by state, county, and town defendants. The second order, also dated September 30, 2005, denied motions for dismissal pursuant to Fed.R.Civ.P. 12(b)(6). These motions were premised on plaintiffs' lack of standing and defendants' qualified immunity and were made by public officer defendants in their individual capacities.

BACKGROUND

In June 2002 plaintiffs-appellees-cross-appellants Field Day, LLC, f/k/a New York Music Festival, and AEG Live, LLC, f/k/a AEG Concerts, LLC, (collectively, "Field Day") began efforts to promote and produce a two-day music and art festival ("the Festival"), which was to be held June 7-8, 2003, in the Town of Riverhead ("Riverhead"), County of Suffolk ("Suffolk County"), New York. Field Day expected the Festival to draw 35,000 to 40,000 people. Because of the duration and size of the Festival, Field Day was constrained by the provisions of New York's Mass Gathering Law. See N.Y. PUBLIC HEALTH LAW§ 225(5)(o) (providing that the Mass Gathering Law is to apply to gatherings that are "likely to attract five thousand people or more and continue for twenty-four hours or more"). Over the next several months, during which Field Day worked with Riverhead and Suffolk County to obtain the requisite mass gathering permit, Field Day alleges that Riverhead and Suffolk County, through their respective employees, acted unlawfully in failing to approve its application through the "manipulation of constitutional infirmities" in the Mass Gathering Law. Field Day ascribes Riverhead and Suffolk County's failure to approve its application "to 'political' decisions by 'upper level' Suffolk County officials," a "dislike for rock music concerts and their fans among certain officials," and/or "the active involvement and political influence of Clear Channel Entertainment, Inc., a media conglomerate that is [Field Day's] largest competitor in the concert promotion industry."

Field Day brought suit pursuant to 42 U.S.C. § 1983 and the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202. Field Day asserted both "facial" constitutional challenges to the Mass Gathering Law and "as applied" constitutional challenges to the actions of Riverhead, Suffolk County, and numerous officials and employees charged with implementing and enforcing the Mass Gathering Law. On September 30, 2005, the District Court subsequently issued the two orders from which the instant appeals are taken.

The first order dealt exclusively with Field Day's "facial" challenges and request for declaratory relief. The District Court found the Mass Gathering Law to be "constitutionally infirm because it allows permit

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denial based on unspecified considerations of 'health and safety' or 'security of life and health.' " Accordingly, the District Court declared portions of New York's Mass Gathering Law and the implementing provisions of the New York Sanitary Code facially unconstitutional. The District Court found, however, that those portions of the Mass Gathering Law and Sanitary Code not pertaining to the constitutionally impermissible "health and safety" and "security of life and health" provisions were constitutionally sound. The District Court then determined that the offending portions of the Mass Gathering Law and Sanitary Code could be severed from the valid provisions for the purposes of granting a preliminary injunction. Accordingly, the District Court severed the unconstitutional portions of the statute and regulation and granted an injunction against application of those portions to Field Day by defendant-appellant New York State Health Commissioner Antonia C. Novello (the "State") and Suffolk County and its representatives, agents, and employees. This order was appealed from by the State and cross-appealed from by Field Day. This Court has jurisdiction over the interlocutory appeal and cross-appeal from this first order pursuant to 28 U.S.C. § 1292(a)(1).

The second order dealt only with motions to dismiss brought by Riverhead, the Chief of Police of Riverhead, Suffolk County, the Suffolk County Department of Health Services, and numerous officers and employees of Suffolk County (the "Suffolk County Employees"), pursuant to Fed.R.Civ.P. 12(b)(6). The motions to dismiss were premised, inter alia, on Field Day's alleged lack of standing and the alleged qualified immunity of the Chief of Police and the Suffolk County Employees. The District Court first found that Field Day, as a concert promoter, had free speech rights and standing to challenge the enforcement of the Mass Gathering Law. The District Court then found that qualified immunity could not be granted or denied at the pleadings stage of this case because Field Day's Second Amended Complaint adequately stated a claim in alleging a violation of a clearly established constitutional right. The Suffolk County employees appeal from the second order, and this Court has jurisdiction over the interlocutory appeal from this order pursuant to 28 U.S.C. § 1291 and the "collateral order" doctrine of Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). See McKenna v. Wright, 386 F.3d 432, 436 (2d Cir.2004).

DISCUSSION

I. The Mass Gathering Law

The 1969 Woodstock Music Festival is probably the best known and most romanticized music festival in American history. Conditions on the ground, however, were less than romantic. The show had been planned for a maximum of 50,000 attendees, but around 500,000 concert goers showed up, most crashing the gates. The highways leading to the concert were jammed with traffic for miles and people abandoned their cars and walked to the concert area. The weekend was rainy, and basic facilities and services, such as first-aid, toilets, and food and potable water, were overcrowded and over-taxed. Two people died--one from a drug overdose, the other run over by a tractor--though two births reportedly occurred. See generally N.Y. Bill Jacket, 1970 A.B. 5925-B Ch. 889; MSN Encarta, http://encarta.msn.com/encyclopedia_761588927/Woodstock_Festival.html (last viewed August 16, 2006).

About one year after Woodstock, and in direct reaction to the conditions above mentioned, the State of New York adopted

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the Mass Gathering Law. Intended as a "consumer protection" law, it was "designed to protect young people who go to festivals from irresponsible entrepreneurs who do not provide adequate public health and safety conditions." As is relevant to the instant appeal, New York's Mass Gathering Law provides:

The sanitary code may ... require that application be made for a permit to ... hold or promote by advertising or otherwise a mass gathering which is likely to attract five thousand people or more and continue for twenty-four hours or more and authorize appropriate officers or agencies to issue such a permit when the applicant is in compliance with the established regulations and when it appears that ... such gathering [can be] held without hazard to health and safety; establish regulations with respect to such gatherings to...

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