Concerned Jewish Youth v. McGuire

• Decision Date: 25 May 1979
• Docket Number: 78 CIV. 4891 (MP).
• Citation: 469 F. Supp. 1296
• Parties: CONCERNED JEWISH YOUTH, Plaintiff, v. Robert J. McGUIRE, in his official capacity as Police Commissioner of the City of New York, Edward Koch, in his official capacity as the Mayor of the City of New York, and the New York Police Department, Defendants.
• Court: U.S. District Court — Southern District of New York

469 F. Supp. 1296

CONCERNED JEWISH YOUTH, Plaintiff, v. Robert J. McGUIRE, in his official capacity as Police Commissioner of the City of New York, Edward Koch, in his official capacity as the Mayor of the City of New York, and the New York Police Department, Defendants.

78 CIV. 4891 (MP).

United States District Court, S. D. New York.

May 25, 1979.

Willkie, Farr & Gallagher, New York City, for plaintiff by Howard C. Buschman, III, Debra M. Evenson, Charlotte B. Hubbell, Jeanne M. Luboja, Benito Romano, John M. McEnany, New York City, of counsel.

Allen G. Schwartz, Corp. Counsel for the City of New York, New York City by Joseph F. Bruno, Rosemary Carroll, Pamela McGovern Gaskins, New York City, of counsel.

Robert B. Fiske, Jr., U. S. Atty., S. D. New York, New York City by Frederick P. Schaffer, Jane E. Bloom, Asst. U. S. Attys., Katherine J. Trager, Sp. Asst. U. S. Atty., New York City, of counsel.

POLLACK, District Judge.

DECISION

This is a motion for a preliminary injunction enjoining the defendants, the Mayor and Police Commissioner of New York City, from enforcing the restrictions on demonstrations at the Soviet Mission to the United Nations currently in effect. Plaintiff alleges that the current restrictions impermissibly infringe on the rights of its members protected by the first amendment guarantee of free speech and assembly.

The Soviet Mission is located at 136 East 67th Street, between Lexington and Third Avenues, on the south side of the street. The Mission building contains the offices of the Mission and residential apartments for some of the Russian employees of the Mission.

The restrictions currently enforced at the Mission by the defendants evolved from the terms of a preliminary injunction entered by Justice Dollinger of New York State Supreme Court in 1971. Plaintiff was not a party to the state court action, which has not yet gone to trial.

Defendants permit no demonstrations on the Mission block, except that they permit 12 demonstrators to stand behind barricades in a designated "bull pen" area. That area, on the sidewalk in front of the apartment building at 167 East 67th Street, is approximately 118 feet from the front entrance to the Mission, diagonally across the street toward Third Avenue.

The 12 demonstrators in the bull pen are subject to search and must identify themselves to the police on demand. No permits for the use of sound equipment are issued for the Mission block. Any demonstrators in excess of twelve and any sound equipment must remain on the far, or west, side of Lexington Avenue.

The plaintiff, CJY, seeks a preliminary injunction and order which would permit it to hold peaceful demonstrations on the Mission block. In particular, it seeks to hold demonstrations involving no more than 30 of its members on the sidewalk directly in front of the Mission, but not blocking its front door. The proposed order specifies that no entrances to any building on the block would be obstructed. Plaintiff further seeks to use sound equipment on the Mission block, its use to be limited to the hours between 9:00 A.M. and 10:00 P.M. and not during school hours or worship services at the synagogue.

In order to be entitled to preliminary relief, the plaintiff must show

possible irreparable injury and either (1) probable success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.

Caulfield v. Board of Education, 583 F.2d 605, 610 (2d Cir. 1978).

CJY

CJY is an unincorporated membership organization with about 300 members, of whom approximately fifty are active. CJY is a registered student organization at Queens College, where it is headquartered. The group was founded in 1975.

The stated goals of CJY are to combat anti-semitism, to help the Jewish poor, to work for the causes of Soviet and Arab Jewry, and to help other organizations. CJY is unaffiliated with other organizations, although it identifies with Herut-U. S.A., a Zionist group which supports the Herut Party in Israel. A CJY leader testified that most, if not all, of the aims of CJY can be accomplished through non-violent action.

In June 1978 CJY held a demonstration at the Mission. It applied for a permit to use sound equipment at the demonstration. Sixteen CJY members attempted to demonstrate on the Mission block, but only 12 were permitted to enter the demonstration area on the block. The four others had to remain on the west side of Lexington Avenue on 67th Street. Sound equipment was permitted only on the west side of Lexington Avenue. The demonstration was peaceful and orderly.

Wayne Perlmutter, a CJY leader present at the June demonstration, testified that the permitted number of demonstrators was too small to effectively carry their message to the people in the Mission, to attract media attention, or to encourage others to join their cause.

CJY was involved in two prior incidents of unlawful acts. A CJY member was arrested at a tennis match in Madison Square Garden for creating a disturbance by unfurling a banner and using a bullhorn. In a second incident, some CJY members overturned the literature tables of another student group at Queens College.

In 1978, CJY had an income of approximately $900, derived from various sources.

Demonstrations at the Mission

Defendants put several dozen police reports into evidence. Twenty-one of the reports concerned demonstrations at which no arrests were made. The number of demonstrators at these ranged from three to 1000; eleven of the demonstrations involved more than 30 people.

Eighteen reports concerned demonstrations at which arrests were made. The demonstrations ranged in size from one to 3500; twelve had more than 30 people. The number of persons arrested ranged from one to 89. All of the demonstrations occurred between 1971 and 1978.

The need to regulate demonstrations at the Mission

Several police officials testified as to their opinions on the need for regulation in the vicinity of the Mission. Detective Rosenthal, who had infiltrated the JDL as an intelligence agent, attended several demonstrations and stated that it was easy to goad peaceful demonstrators to violence. He believes that the police cannot control a large number of demonstrators, and felt that a safety problem would arise if the current restrictions are lifted.

Detective Perola, a bomb squad investigator, said that no bomb had been exploded at the Mission during the last nine years, but that the police had learned of four plans to bomb the Mission during 1971-72. He said that among the tactics used by violent groups was the infiltration of demonstrations by peaceful groups to permit the bombers to approach the target without drawing the attention of the police. Perola testified that there would be a reasonable likelihood of danger to the Mission if picketing by any number of people was permitted in front of the Mission.

David Fallek, a retired police inspector who was in charge of the Mission area prior to 1972, stated his opinion that the current restrictions at the Mission are necessary to maintain peace there. He felt that any demonstration on the Mission block presents a danger to the police.

Captain Selvaggi, commander of the 19th Precinct, stated that approximately 25 percent of his force is devoted to protecting the 45 diplomatic locations in the area. He believes that demonstrators should not be allowed directly in front of the Mission because emotions tend to rise near the Mission. He said that the chance that some demonstrators would break away and try to enter the Mission poses a safety problem, because he believes that the Russians would use "deadly physical force" to eject intruders and to maintain control of their premises.

Captain Selvaggi testified as to how the police settled on the restrictions enforced at the Mission. The particular picket site was chosen so as to be more than 100 feet from the Mission (it is about 120 feet away), not to interfere with the functions of other buildings on the block (a school, a police station, a fire station, a synagogue), to be within view of the Mission (diagonally across the street), and to be on a relatively wide part of the sidewalk so that non-demonstrators may pass by. The limitation of the number of demonstrators on the block to twelve and the prohibition of the use of sound equipment appear to have been derived solely from the 1971 state court preliminary injunction. Selvaggi stated that the requirement that demonstrators identify themselves and subject themselves to search is not enforced by the police at the present time.

Regulation of speech and assembly

It is well settled that picketing and demonstrations may be subject to reasonable "time, place and manner" regulations where necessary to further significant governmental interests, notwithstanding the expressive elements of such conduct. "People who want to propagandize protests or views do not have a constitutional right to do so whenever and however and wherever they please." Adderley v. Florida, 385 U.S. 39, 48, 87 S.Ct. 242, 247, 17 L.Ed.2d 149 (1966).

In assessing the reasonableness of a restriction on expressive conduct, "the first amendment . . . requires . . . that the balance struck in any particular situation properly reflects the central position of free expression in the constitutional scheme." L. Tribe, American Constitutional Law 582 (1978). The regulation of picketing must not "substantially hinder," Amalgamated Food Employees Union v. Logan Valley Plaza, Inc., 391 U.S. 308, 323, 88 S.Ct. 1601, 20 L.Ed.2d 603 (1968), or "unduly constrict", Tribe, supra at 581, the communication of the ideas sought to be expressed.

Streets and sidewalks "cannot be put off limits to . . . first amendment activities merely to spare public expense or inconvenience." Tribe, supra at 689. "The right to use a public...