Beal v. Stern

• Decision Date: 21 May 1998
• Docket Number: PLAINTIFFS-APPELLANTS,DEFENDANT-APPELLEE,Docket No. 97-9218
• Citation: 184 F.3d 117
• Parties: (2nd Cir. 1995) IRVIN DANA BEAL AND ROBERT B. MACDONALD,, v. HENRY STERN, IN HIS OFFICIAL CAPACITY AS COMMISSIONER, NEW YORK CITY DEPARTMENT OF PARKS AND RECREATION, Argued:
• Court: U.S. Court of Appeals — Second Circuit

Page 117

184 F.3d 117 (2nd Cir. 1995)

IRVIN DANA BEAL AND ROBERT B. MACDONALD, PLAINTIFFS-APPELLANTS, v. HENRY STERN, IN HIS OFFICIAL CAPACITY AS COMMISSIONER, NEW YORK CITY DEPARTMENT OF PARKS AND RECREATION, DEFENDANT-APPELLEE.

Docket No. 97-9218

UNITED STATES COURT OF APPEALS SECOND CIRCUIT

Argued: May 21, 1998

Decided: June 9, 1999

Appeal from a decision of the United States District Court for the Southern District of New York (John E. Sprizzo, Judge), denying plaintiffs' motion for a preliminary injunction against the enforcement of certain provisions of the Rules of the City of New York restricting assemblies or rallies in City parks. We remand. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Richard L. Wilson, Law Office of Richard L. Wilson, Orlando, Florida (Dorothy M. Weber, Shukat, Arrow, Hafer & Weber, New York, New York, of counsel), for Plaintiffs-Appellants.

Elizabeth I. Freedman, City of New York Law Department, New York, New York (Jeffrey D. Friedlander, City of New York Law Department, New York, New York, of counsel), for Defendant-Appellee.

Before: Winter, Chief Judge, Calabresi, Circuit Judge, and Knapp, District Judge.^*.

Winter, Chief Judge

Irvin Dana Beal and Robert B. MacDonald appeal from Judge Sprizzo's denial of their motion for a preliminary injunction. They seek to prohibit the New York City Department of Parks and Recreation (the "Parks Department") from enforcing certain restrictions on assemblies and rallies contained in provisions of Chapter 1 of Title 56 of the Rules of the City of New York ("RCNY" or the "Rules"). Appellants challenge these provisions as facially impermissible restraints on speech. The district court denied the motion on the ground that appellants had not shown a clear likelihood of success on the merits of their claims. On appeal, appellants contend principally that the Rules constitute an impermissible prior restraint on speech, that they give the Commissioner constitutionally excessive discretion to grant or deny permits, and that at least as to one provision is overbroad. For the reasons stated below, we remand.

BACKGROUND

Pursuant to RCNY § 1-05, the Parks Department requires the acquisition of a special permit for assemblies of more than 20 persons on land within its jurisdiction. See 56 RCNY § 1-05(a)(2). Section 1-05(a)(4) permits the Commissioner of the Parks Department to deny a permit application for any of the following five reasons:

"(i) the location sought is not suitable because of landscaping, planting, or other environmental conditions reasonably likely to be harmed by the proposed event;"

"(ii) the location sought is not suitable because it is a specialized area including, but not limited to, a zoo, swimming pool, or skating rink, or because the proposed event is of such nature or duration that it cannot reasonably be accommodated in that location;"

"(iii) the date and time requested have previously been allotted by permit; or"

"(iv) within the preceding four years, the application has been granted a permit and did, on that prior occasion, knowingly violate a material term or condition of the permit, or any law, ordinance, statute, or regulation relating to the use of the parks; or"

"(v) the event would interfere unreasonably with the enjoyment of the park by other users."

56 RCNY § 1-05(a)(4).

Section 1-05(a)(5) sets forth certain procedures that the Commissioner must follow in ruling on permit applications. If an application is filed 60 or more days prior to the requested date, the Parks Department "shall notify the applicant of its decision no later than 30 days prior to the requested date." Otherwise, "the Department shall notify the applicant of its decision as soon as is reasonably practicable." Further, "[i]f the permit is denied, the Department shall state the [provision] under which the permit was denied," and, unless the permit was denied pursuant to Section 1-05(a)(4)(iv), "shall employ reasonable efforts to offer the applicant suitable alternative locations and/or times and/or dates for the proposed event." Finally, Section 1-05(a)(5) provides for an administrative appeal from a denial of a permit if the appeal is filed within ten days of receipt of the notice of denial.

Beal and MacDonald are activists dedicated to the legalization of marijuana for medicinal purposes. They are affiliated with a group called Cures Not Wars ("Cures"). Cures has for several years held an annual parade and rally in early May. Each rally has been marred by arrests and damage. In February 1997, the Parks Department denied an application filed on behalf of Cures for a permit to hold a rally on May 3, 1997, in Washington Square Park ("WSP"). The grounds for the denial were violations of the Rules during previous Cures rallies. Cures filed an administrative appeal on March 18, 1997, which the Commissioner denied on March 24, 1997.

On April 18, 1997, Cures commenced a facial challenge to the Rules in New York State Supreme Court pursuant to CPLR Article 78, seeking injunctive relief. The court declined to hold the Rules unconstitutional but ordered the Parks Department to consider alternative sites and/or other restrictions for the rally. The Parks Department then offered Cures two alternative sites for the May 3 rally. Cures accepted Battery Park and scheduled the rally. On May 2, 1997, appellants informed the Parks Department that the rally was postponed on account of rain. However, on May 3, about 500 people, including MacDonald, gathered in WSP. MacDonald was arrested for conducting a rally without a permit in violation of 56 RCNY § 1-05(a)(2).

On May 5, 1997, Jerry Greenberg filed an application for a rescheduled Cures rally on September 6, 1997. On June 13, 1997, the Commissioner denied Greenberg's request, pursuant to RCNY § 1-05(a)(4)(iv) (material violation of a permit term within preceding four years), because of the "unauthorized rally" on May 3 and the "illegal activity" of one of Cures' organizers, i.e., MacDonald. On June 17, 1997, Greenberg filed an administrative appeal. Having heard nothing for some time, Greenberg contacted Assistant Corporation Counsel Carmen Twillie Ambar to inform her that he was planning to file suit. She advised him that a decision was forthcoming.

No decision having been rendered by September 8, 1997, Beal and MacDonald commenced this action. Their complaint asserted in pertinent part that the permit requirement is a facially unconstitutional prior restraint on speech. It sought preliminary and permanent injunctive relief. Appellants contended, inter alia, that Section 1-05(a)(4)(iv) is overbroad and that the Commissioner has unconstitutionally excessive discretion to grant or deny permits under Sections 1-05(a)(4)(iv) & 1-05(a)(5).¹

On September 12, the Commissioner denied Greenberg's administrative appeal based on MacDonald's activities at the May 3, 1997 rally. On September 23, 1997, the Parks Department offered to allow appellants to conduct a rally on October 5 at Battery Park. Appellants rejected this offer, asking instead for a permit to hold a rally in City Hall Park.

On September 29, 1997, the district court denied plaintiffs' request for a preliminary injunction, finding that they had not demonstrated a likelihood of success on the merits. The district court reasoned that the permit requirement was content-neutral and thus "not a prior restraint of speech," but was rather a "reasonable time, place and manner restriction." It therefore concluded that "some discretion in the administrative officials is permissible." With regard to irreparable injury, the court found that while the Rules may have "some incidental effect on speech," the "balance of the hardships probably does tip in favor of the [Commissioner]." In addition, the district court ruled that Section 1-05(a)(4)(iv) was not susceptible to a facial challenge. The present appeal followed.

DISCUSSION

A. Standards

We review a district court's denial of a preliminary injunction motion for abuse of discretion. See Bery v. City of New York, 97 F.3d 689, 693 (2d Cir. 1996). An error of law or fact would constitute an abuse of discretion, see id., but we are nevertheless "free to affirm an appealed decision on any ground which finds support in the record," Millares Guiraldes de Tineo v. United States, 137 F.3d 715, 719 (2d Cir. 1998) (internal quotation marks omitted).

In general, a district court may grant a preliminary injunction where the moving party establishes: (i) that it is likely to suffer irreparable injury if the injunction is not granted, and (ii) either (a) a likelihood of success on the merits of its claim, or (b) the existence of serious questions going to the merits of its claim and a balance of the hardships tipping decidedly in its favor. See Bery, 97 F.3d at 693-94. However, when "'the moving party seeks to stay governmental action taken in the public interest pursuant to a statutory or regulatory scheme,' the injunction should be granted only if the moving party meets the more rigorous likelihood-of-success standard." Id. at 694 (quoting Plaza Health Lab., Inc. v. Perales, 878 F.2d 577, 580 (2d Cir. 1989)). Finally, when the injunction sought "'will alter, rather than maintain the status quo,'" or will "'provide the movant with . . . relief [that] cannot be undone even if the defendant prevails at a trial on the merits,'" the moving party must show a "clear" or "substantial" likelihood of success. Jolly v. Coughlin, 76 F.3d 468, 473 (2d Cir. 1996) (quoting Tom Doherty Assocs., Inc. v. Saban Entertainment, Inc., 60 F.3d 27, 33-34 (2d Cir. 1995)).

The district court held that the challenged regulations were enacted in the public interest and pursuant to a regulatory scheme and that the relief sought was "in the nature of mandatory injunctive relief which [would provide appellants with] the benefit of a decision on the merits preliminarily." It thus held that the "clear likelihood of success"...