Marcavage v. City of N.Y.

• Decision Date: 02 August 2012
• Docket Number: Docket No. 10–4355–cv.
• Citation: 689 F.3d 98
• Parties: Michael MARCAVAGE, Steven C. Lefemine, Plaintiffs–Appellants, v. The CITY OF NEW YORK, Raymond Kelly, in his individual and official capacity as the Commissioner of the New York City Police Department, Sergeant Ebanks, Captain Staples, Officer Donnelly, as yet Unknown Officers, in their individual capacities and official capacities as Police Officers for the New York Police Department, Defendants–Appellees.
• Court: U.S. Court of Appeals — Second Circuit

689 F.3d 98

Michael MARCAVAGE, Steven C. Lefemine, Plaintiffs–Appellants,

v.The CITY OF NEW YORK, Raymond Kelly, in his individual and official capacity as the Commissioner of the New York City Police Department, Sergeant Ebanks, Captain Staples, Officer Donnelly, as yet Unknown Officers, in their individual capacities and official capacities as Police Officers for the New York Police Department, Defendants–Appellees.

Docket No. 10–4355–cv.

United States Court of Appeals,Second Circuit.

Argued: Jan. 24, 2012.

Decided: Aug. 2, 2012.

James A. Campbell (Jeffrey A. Shafer, Brian W. Raum, on the briefs), Alliance Defense Fund, for Plaintiffs–Appellants.

Drake A. Colley (Edward F.X. Hart, on the brief), for Michael A. Cardozo, Corporation Counsel of the City of New York, for Defendants–Appellees.

Before: JACOBS, Chief Judge, LEVAL and LIVINGSTON, Circuit Judges.

DENNIS JACOBS, Chief Judge:

Michael Marcavage and Steven Lefemine (“Plaintiffs”), protesters at the 2004 Republican National Convention at MadisonSquare Garden, were arrested after they failed to comply with police instructions to move along from an area where demonstrating was prohibited and to one designated for protesting. They brought this suit under 42 U.S.C. § 1983 against the New York City Police Department (“NYPD”), the Police Commissioner, three NYPD officers, and others (collectively, “Defendants”), seeking declaratory and injunctive relief as well as money damages. Plaintiffs claim the NYPD's policy around the convention violated the First Amendment and that Plaintiffs' arrest violated the Fourth Amendment. This appeal is taken from a judgment of the United States District Court for the Southern District of New York (Sullivan, J.) granting summary judgment in favor of Defendants. We conclude that the restriction on speech was a reasonable time, place, and manner restriction, and that the arrests were supported by probable cause.

BACKGROUND

The Convention. The 2004 Republican National Convention (“the Convention”) was held from August 30 to September 2 at Madison Square Garden (“the Garden”) in midtown Manhattan. The security planners of the NYPD understood that political conventions are potential terrorist targets and therefore prepared for the possibility that groups and individuals would engage in criminal conduct that could significantly endanger public safety. The NYPD was also responsible for accommodating commuters, businesses, and residents in the vicinity. As many as 50,000 people were expected to attend the four-day Convention. The NYPD anticipated that there would be a volume of protest activity not seen in New York City in decades, including potentially hundreds of thousands of protesters throughout the city.

The Garden sits atop Pennsylvania Station (“Penn Station”), one of the transportation hubs of New York City. Approximately 1,300 trains and 600,000 riders pass through Penn Station each day. The vicinity is ordinarily congested by vehicular and pedestrian traffic; a major event at the Garden can bring thousands of additional pedestrians.

The complex is a superblock bordered by Seventh and Eighth Avenues to the east and west, and by 31st and 33rd Streets to the south and north. During the Convention, Seventh Avenue was closed to non-emergency vehicle traffic from 31st Street to 34th Street. The crosswalk at Seventh Avenue and 32nd Street was open to pedestrians, who could use it without waiting for non-emergency traffic.

The NYPD implemented a three-zone system outside the Garden: a demonstration area, a frozen area (with no pedestrian traffic), and a no-demonstration area.

In the “frozen zone”—the Seventh Avenue sidewalk adjacent to the Garden between 31st and 33rd Streets—barriers were erected and all pedestrian traffic was prohibited.

Directly across Seventh Avenue from the frozen zone was the “no-demonstration” zone between 31st and 33rd Streets. People on that east sidewalk were not permitted to protest, distribute leaflets, or congregate in that area, even if they remained in motion and kept up with the flow of pedestrian traffic. ¹ NYPD officers advised people in the vicinity of the Garden to go to the demonstration zone if they wanted to protest.

The “demonstration zone” was the full width of Eighth Avenue, extending south from 31st Street. Within the demonstration zone, expressive activity was permitted at any time during the Convention. The NYPD issued sound permits and constructed a stage for demonstrators at the north end of the demonstration area, near the 31st Street intersection, closest to the Garden. Thousands of protesters used the demonstration area.

The Protest. On September 1, 2004, Plaintiffs were standing in the no-demonstration zone between 32nd and 33rd Streets, holding anti-abortion signs—one sign was four by six feet, the other was three by five. Plaintiffs were approximately five feet from the facade of the Pennsylvania Hotel, where (they contend) they were outside the flow of pedestrian traffic. After 10 to 15 minutes, they were approached by police officers.

The officers repeatedly told Plaintiffs they could not protest there, and directed them to the demonstration zone. Plaintiffs objected that the demonstration zone was not within sight and sound of the Convention attendees and that they did not want to be in the demonstration zone lumped with other demonstrators. At some point during the encounter, Plaintiffs moved to the south side of 32nd Street, in the general direction of the demonstration zone (which was south and west of the initial location). But Plaintiffs continued to contest the officers' commands. All told, Plaintiffs were ordered to leave 17 times by three different police officers before they were informed that they were blocking traffic and placed under arrest.

Marcavage and Lefemine were charged with disorderly conduct, and Marcavage was also charged with resisting arrest. All charges against Marcavage were ultimately dismissed. Lefemine accepted an adjournment in contemplation of dismissal for his charge of disorderly conduct. The charge was ultimately dismissed.

The Proceedings. Plaintiffs brought the present action under § 1983 alleging violations of the First and Fourth Amendments and seeking money damages and equitable relief. The district court granted summary judgment for Defendants, holding that the NYPD's policy was a permissible time, place, and manner restriction on expression, and that probable cause supported Plaintiffs' arrest. Marcavage v. City of New York, No. 05 Civ. 4949(RJS), 2010 WL 3910355 (S.D.N.Y. Sept. 29, 2010). Plaintiffs filed this appeal.

DISCUSSION

We review the grant of summary judgment de novo. Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.2003). Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Id. In assessing a motion for summary judgment, we are “required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment [was granted].” Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir.2003) (internal quotation marks omitted).

I

A question has arisen as to this Court's jurisdiction to consider the claims for declaratory and injunctive relief.

Article III limits the subject matter jurisdiction of federal courts to actual “cases” or “controversies,” U.S. Const. art. III, § 2, cl. 1; accord Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000), which requires, among other things, that a plaintiff sustain the burden of establishing standing, Raines v. Byrd, 521 U.S. 811, 818–19, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997); Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 37–38, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976).

Plaintiffs lack standing to pursue their equitable claims. To obtain prospective relief, such as a declaratory judgment or an injunction, a plaintiff must show, inter alia, “a sufficient likelihood that he [or she] will again be wronged in a similar way.” City of Los Angeles v. Lyons, 461 U.S. 95, 111, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). That is, a plaintiff must demonstrate a “certainly impending” future injury. Whitmore v. Arkansas, 495 U.S. 149, 158, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990) (internal quotation marks omitted); accord O'Shea v. Littleton, 414 U.S. 488, 496, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). In establishing a certainly impending future injury, a plaintiff cannot rely solely on past injuries; rather, the plaintiff must establish how he or she will be injured prospectively and that the injury would be prevented by the equitable relief sought. Whitmore, 495 U.S. at 158–59, 110 S.Ct. 1717;Lyons, 461 U.S. at 102–03, 103 S.Ct. 1660;O'Shea, 414 U.S. at 495–96, 94 S.Ct. 669.

Neither party's national convention will be in New York City in 2012, and there is no prospect that a national convention will be coming anytime to the Garden, or that, if one did, similar policies regarding pedestrian traffic and protesters would be enacted or enforced. Since Plaintiffs have not demonstrated a certainly impending future injury that could be redressed by this Court, we lack jurisdiction to adjudicate their claims for equitable relief.

Standing to seek retrospective relief, such as damages, requires a showing that [1] the plaintiff suffered an injury in fact that is concrete and not conjectural or hypothetical, [2] the injury is fairly traceable to the actions of the defendant, and [3] the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Plaintiffs make the requisite showing as to their claim for damages.

Because we have jurisdiction over the claims for money damages, we turn to them now.

II

Plaintiffs contend that the no-demonstration zone along Seventh Avenue was an unreasonable time, place, and manner...