Am. Patriot Express v. City of Glens Falls
| Decision Date | 22 July 2020 |
| Docket Number | 1:20-CV-672 (LEK/CFH) |
| Citation | 474 F.Supp.3d 508 |
| Parties | AMERICAN PATRIOT EXPRESS, et al., Plaintiffs, v. CITY OF GLENS FALLS, et al., Defendants. |
| Court | U.S. District Court — Northern District of New York |
Adam G. Giangreco, Marcelle and Giangrego, Thomas Marcelle, Marcelle & Giangreco, Albany, NY, for Plaintiffs.
Gregg T. Johnson, April J. Laws, Loraine Clare Jelinek, Johnson Laws, LLC, Clifton Park, NY, Ronald L. Newell, Newell, Klingebiel Law Firm, Glens Falls, NY, for Defendant The City of Glens Falls, New York.
Gregg T. Johnson, April J. Laws, Loraine Clare Jelinek, Johnson Laws, LLC, Clifton Park, NY, for Defendants Daniel Hall, Anthony Lydon, Robert Curtis.
Plaintiffs American Patriot Express ("APEX"), David Vanscoy, Florence Sherman, and E.S. (collectively, "Plaintiffs") bring this action for injunctive and declaratory relief against defendants the City of Glens Falls (the "City" or "Glens Falls"), and, all in their official capacities, Glens Falls Mayor Daniel Hall, Glens Falls Police Chief Anthony Lydon, and Glens Falls City Clerk Robert Curtis (collectively, "Defendants"). Dkt. No. 1 ("Complaint"). Plaintiffs challenge the constitutionality of Glens Falls City Code § 87 under the First, Second, and Fourteenth Amendments to the United States Constitution. Id. ¶¶ 11–12. Plaintiffs seek to enjoin the enforcement of § 87 and seek a declaration that it is unconstitutional. Id. ¶ 11. Before the Court is Plaintiffs’ motion for a preliminary injunction, as well as an accompanying Memorandum of Law. Dkt. Nos. 4 ("Motion"); 4-2 ("Plaintiffs’ Memorandum of Law"). In response to Plaintiffs’ Motion, Defendants filed a response in opposition. Dkt. No. 24-11 ("Response"). Attached to the Response are declarations from Curtis and Lydon. Dkt. Nos. 24-1 ("Curtis Declaration"); 24-2 ("Lydon Declaration"). Plaintiffs subsequently filed a reply. Dkt. No. 30 ("Reply").
For the reasons stated below, Plaintiffs’ Motion is granted in part and denied in part.
Glens Falls City Code § 87 was passed in January 2020. Pls.’ Mem. of Law at 32. Section 87 regulates "demonstrations," defined as "pre-planned gathering[s] of 25 or more persons ... convene[d] for the purpose of a public exhibition including a procession, parade, protest, picket, march or rally," § 87-2(A), on "public" property, defined as "any place to which the public has unrestricted access," excluding indoor spaces, § 87-2(C).
Any "person, corporation, partnership or other entity" that "hold[s] or cause[s] to be held" any "demonstration," as defined above, anywhere on "public" property, as defined, must first acquire a permit. See § 87-2(B). Section 87-4(A) provides that permit applications must be submitted to the City Clerk and "will be processed in order of receipt[,] and in all cases decisions whether to grant or deny the application will be delivered within 14 days of application, unless, upon written notice to the applicant, a further 14-day extension is necessary." § 87-4(A).
Section 87-4(B) provides an exclusive list of nine reasons that the City Clerk may deny a permit. § 87-4(B). Among other reasons, the City Clerk may deny a permit if "[t]he applicant is legally incompetent to contract or to sue and be sued." § 87-4(B)(3).1
Section 87-3(A)(13) prohibits the use of "signs" "as defined in City Code, Chapter 180." § 87-3(A)(13). Based on the text of Chapter 180 of the City Code, it is not clear what is encompassed by the term "sign" in § 87-3(A)(13), as "sign" is not defined anywhere in Chapter 180. See generally City Code Chapter 180. But it appears that "sign" encompasses a capacious category of instruments used to display text or images for a variety of purposes. In Chapter 180, "signage" is defined as "[a]ny signs as defined in this chapter ...,"2 Chapter 180-3, and is said to include "any material, structure, device, or design that is composed of any form of visual presentation in or on which letters and symbols as pictorial matter is placed when used or located out of doors or upon the exterior of any building, including a window display," id. Chapter 180-4(G)(1) provides certain restrictions that apply to "temporary signs," a term defined to include "political aid election notices," in addition to commercial advertisements "and other signs of similar nature." Chapter 180-4(G)(1). Chapter 180-4(G)(1) prohibits the display of "political aid election notices" and other "temporary signs" prior to sixty days before "the event." Id. Chapter 180-4(G)(3) provides that "political signs or election notices," specifically and uniquely, shall be limited to a maximum size of six square feet. Chapter 180-4(G)(3).
Those who violate any provision of § 87 are subject to fines and other unspecified penalties. Specifically, § 87-7.
Section 87 contains other provisions that Plaintiffs do not specifically challenge. For example, § 87-3 prohibits a long list of items at demonstrations, including alcoholic beverages, § 87-3(A)(1), "[e]xplosives, fireworks, or pyrotechnics," § 87-3(A)(2), and masks, § 87-3(A)(3), as well as certain activities, such as blocking entrances to buildings, § 87-3(A)(12), and blocking "highway, road, or rail traffic," § 87-3(A)(15). Section 87-6 imposes certain cleanup responsibilities on permit holders. § 87-6.
Plaintiffs are a political organization with a conservative mission, and a collection of people who frequently engage in protests in Glens Falls in support of police, President Donald Trump, and United States Congresswoman Elise Stefanik, as well as counter-protests against left-wing demonstrators, and who plan to continue doing so. Compl. ¶¶ 16–23, 28-49.
APEX is an organization founded and run by Sherman and Vanscoy whose mission is to organize demonstrations in support of conservative causes and in opposition to left-wing causes. Id. ¶¶ 16, 28–30. E.S., a minor, along with Sherman and Vanscoy, would like to participate in upcoming APEX-organized protests. Id. ¶¶ 17–23, 78. Prior to the law's passage, Vanscoy and Sherman both participated in political demonstrations organized by APEX and attended by more than twenty-five people in outdoor public spaces in Glens Falls. Id. ¶ 17, 20, 32. The demonstrations that Plaintiffs, via APEX, typically organized often took the form of counter-protests in opposition to left-wing demonstrations, which were organized on one or two days’ notice. Id. ¶ 42. Plaintiffs also organized rallies, via APEX, in support of political candidates and causes, that did not take the form of counter-protests. Id. ¶ 32–35. Vanscoy, Sherman, and E.S. have all abstained from protesting since the passage of § 87, because they fear that the City "will enforce City Code § 87 in a discriminatory manner." Id. ¶¶ 18, 21, 23. E.S. has abstained for the additional reason that E.S., as a minor, is allegedly prohibited from demonstrating under § 87. Id. ¶ 23.
Plaintiffs have, on at least one instance, refrained from protesting because the delay inherent in the maximum 28-day review period precluded their protest. Specifically, on June 3, when Sherman learned that a planned Black Lives Matter ("BLM") protest was to occur on June 5, Plaintiffs wished to organize a simultaneous counter-protest for but refrained from doing so, because they believed that § 87 required a permit for this counter-protest and that § 87's 28-day permit processing period precluded their acquisition of a permit on two days’ notice. Id. ¶¶ 66–70. With the intention of protesting, Sherman created signs for use at the protest. Id. ¶ 70.
At the time that they filed the Complaint and Motion, Plaintiffs planned to stage a protest countering the message of the June 5 BLM protest, as soon as possible. Id. ¶¶ 78–83. At that demonstration, protesters were to advocate in favor of police and display political signs in support of Trump and Stefanik. Id. ¶¶ 79–80. Plaintiffs anticipated that the demonstration would be attended by more than twenty-five people. Id. ¶ 81. The rally was "time sensitive," because "plaintiffs want[ed] to send an important message to police at a time when they and their reputation is under attack." Id. ¶ 82.
Plaintiffs assert claims under the First, Second,3 and Fourteenth Amendments. With respect to their First Amendment claims, Plaintiffs allege: (1) that § 87 is overbroad, as it imposes an excessively long delay in the permitting process that applies to a broad category of public gatherings and to all outdoor public space in Glens Falls, id. ¶ 7; Pls.’ Mem. of Law at 1, 17–23; (2) that it impermissibly censors speech based upon the speech's content, by singling out political signs for certain restrictions, Compl. ¶ 7; Pls.’ Mem. of Law at 1, 12–14; (3) that it unconstitutionally grants Defendants limitless discretion through the permitting process via Defendants’ authority to delay decisions on applications, Compl. ¶ 7; Pls.’ Mem. of Law at 2, 14–17; (4) that it unconstitutionally imposes criminal liability for protected First Amendment activity without a scienter requirement, Pls.’ Mem. of Law at 24–26; and (5) that it abridges the rights of minors to organize demonstrations, Compl. ¶¶ 23, 92.
Defendants argue both that Plaintiffs lack standing on a variety of grounds and that Plaintiffs’ First Amendment claims fail on the merits. Defendants argue that Plaintiffs lack standing because: (1) properly construed, § 87 does not require a permit for the type of protests in which Plaintiffs have engaged and state that they plan to engage in the future; (2) properly construed, § 87 does not ban signs at demonstrations; (3) Plaintiffs have...
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