Davis v. Stratton, 1:06-CV-1323 (LEK/DRH).

• Citation: 575 F.Supp.2d 410
• Decision Date: 09 September 2008
• Docket Number: No. 1:06-CV-1323 (LEK/DRH).,1:06-CV-1323 (LEK/DRH).
• Parties: Greg S. DAVIS, Plaintiff, v. Brian U. STRATTON, Mayor of Schenectady, in his official capacity; Michael N. Geraci, Chief of Police, in his official capacity; Schenectady County Community College<SMALL><SUP>1</SUP></SMALL>; Michael D'Annibale, Assistant Dean for Administrative Services, Schenectady County Community College, in his official and individual capacity, Defendants.
• Court: U.S. District Court — Northern District of New York

575 F.Supp.2d 410

Greg S. DAVIS, Plaintiff, v. Brian U. STRATTON, Mayor of Schenectady, in his official capacity; Michael N. Geraci, Chief of Police, in his official capacity; Schenectady County Community College¹; Michael D'Annibale, Assistant Dean for Administrative Services, Schenectady County Community College, in his official and individual capacity, Defendants.

No. 1:06-CV-1323 (LEK/DRH).

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

September 9, 2008.

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David R. Dye, Clymer, Musser Law Firm, Lancaster, PA, Dennis E. Boyle, Randall L. Wenger, Boyle, Neblett Law Firm, Camp Hill, PA, Thomas Marcelle, Office of Thomas Marcelle, Albany, NY, James P. Trainor, Cutler, Trainor Law Firm, Malta, NY, for Plaintiff.

Fred L. Goodman, Office of Schenectady County Attorney, L. John Van Norden, City of Schenectady Corporation Counsel, Schenectady, NY, Margaret D. Huff, McCary, Huff Law Firm, Scotia, NY, Paul A. Hurley, Boeggeman, George Law Firm, Albany, NY, for Defendants.

MEMORANDUM-DECISION AND ORDER²

LAWRENCE E. KAHN, District Judge.

Presently before the Court is a Motion for summary judgment filed on November 16, 2007 by Plaintiff, requesting that the Court declare that Defendants unconstitutionally applied New York's trespass statute to remove Plaintiff from Schenectady County Community College ("SCCC") and that Defendants be enjoined from interfering with Plaintiff's First Amendment right to preach and videotape in the Quad area at SCCC. Also before the Court is Defendant Michael D'Annibale's cross-Motion for summary judgment requesting that this Court find that the Eleventh Amendment bars the action against Defendant D'Annibale, and to the extent that it does not, that he has qualified immunity from suit.

I. Background

This action was commenced on October 31, 2006 by Plaintiff Gregory S. Davis ("Plaintiff" or "Davis"), seeking monetary damages and injunctive relief pursuant to 42 U.S.C. § 1983 against Defendant D'Annibale, Assistant Dean for Administrative Services at SCCC in his official and personal capacity, Defendant Brian U. Stratton, the Mayor of Schenectady in his official capacity, and Defendant Michael N. Geraci, Chief of Police, in his official capacity. Am. Compl. (Dkt. No. 57).

On September 8, 2006, Plaintiff, an ordained Baptist minister, was arrested while preaching the Gospel on the campus .of SCCC, a part of the State University of New York ("SUNY") System. D'Annibale Dep. at 10 (Dkt. No. 68, Ex. B).

Prior to his arrest, Davis was situated in the Quad—an area within the center of several SCCC buildings where students often congregate—preaching the Gospel and handing out religious tracts. See Pl.'s DVD (Dkt. No. 68, Ex. C). Davis also videotaped his activities, as was his custom, in order to memorialize the event, to use as evidence in case he was unjustly accused of wrongdoing, and to remember persons he met in order to pray for them. See Davis Affidavit at ¶ 6 (Dkt. No. 68, Att.1).

After receiving a complaint from a female student regarding Plaintiffs activities, Defendant D'Annibale approached Plaintiff and asked him to cease videotaping, but Plaintiff refused. Defendant D'Annibale then told Davis he was on private property, and asked Davis to leave. Davis again refused, and told Defendant D'Annibale that the SCCC campus was a limited public forum, and that he had the right to speak there. Defendant D'Annibale told Plaintiff that he was not authorized to be on campus because he did not follow the correct procedures, and again reiterated that it was "private property." Plaintiff inquired which procedures Defendant D'Annibale was referring to and stated that he had indeed followed them. Defendant D'Annibale asked Plaintiff to leave again, and told him that if he did not leave, the police would be called. Plaintiff did not leave and instead continued to preach about First Amendment rights and the Gospel.

Defendant D'Annibale then called the police. When the police arrived, they too asked Davis to leave. Davis informed the police that he was exercising his right to preach in a public forum, but also stated that if he was going to be arrested, he would leave. A police officer asked to see some identification, and Davis complied by handing the officer his drivers license. Davis continued to tell the officers and Defendant D'Annibale that he had a right to be on the campus and to speak there. After examining Davis' license and speaking briefly with Defendant D'Annibale, an officer arrested Davis.

Davis was initially charged with Criminal Trespass, New York Penal Law § 140.10(b), which only governs entry on elementary or secondary school property in violation of conspicuously posted rules or regulations. See Davis Affidavit at ¶ 8 (Dkt. No. 68, Attch.1); N.Y. Penal Law § 140.10(b). Eventually that charge was dismissed, and Davis was instead charged under New York Penal Law § 140.05, Trespass, which is graded as a Violation, not a crime. See Davis Affidavit at ¶ 9 (Dkt. No. 68, Att.1); N.Y. Penal Law § 140.05 ("A person is guilty of trespass when he knowingly enters or remains unlawfully in or upon premises. Trespass is a violation."). Rather than simply giving Mr. Davis a citation or summons on the new Trespass Violation, the police rearrested him under the new charge. Davis Affidavit at ¶ 10 (Dkt. No. 68, Att.1).

Davis contends that the application of the New York Trespass laws unconstitutionally chilled his rights of freedom of religion, freedom of speech, and freedom of assembly.

II. Discussion

A. Standard of Review

Summary judgment should be granted if, when viewing the evidence in the light most favorable to the nonmoving party, the court determines that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. FED.R.CIV.P. 56(c). For summary judgment purposes, a dispute about a genuine issue exists where the evidence is such that a reasonable jury could decide in the non-movant's favor. FED.R.CIV.P. 56(c); see also Beyer v. County of Nassau, 524 F.3d 160, 163 (2d Cir. 2008). Rule 56(c) mandates the entry of summary judgment against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Byrne v. CNA Ins., Co., 2001 WL 35934693, 2001 U.S. Dist. LEXIS 12975 (N.D.N.Y.2001).

B. Traditional First Amendment Analysis

The main issue before the Court is whether Plaintiff has a First Amendment right to preach, hand out leaflets, and videotape his actions in the Quad area of SCCC, and whether that right was violated by his removal from SCCC. To resolve this issue, the Court must decide whether Plaintiff's actions are protected by the First Amendment and identify the nature of the forum, because the extent to which the Government may limit access depends on whether the forum is public or nonpublic. The Court must then assess whether the justifications for exclusion from the relevant forum satisfy the requisite standard. See Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 797, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985).

C. Nature of the forum

The right to a public forum for expression of ideas is fundamental to a democracy. Concerned Jewish Youth v. McGuire, 621 F.2d 471, 473 (2d Cir.1980). However, "[t]he existence of a right of access to public property" for the purpose of speaking there and "the standard by which limitations on such a right must be evaluated differ depending on the character of the property at issue." Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 44, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983).

The right of use of government property for one's private speech or expression depends on whether the property, by law or tradition, has been given the status of a public forum, a designated or limited public forum, or rather has been reserved for specific, official uses. Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 761, 115 S.Ct. 2440, 132 L.Ed.2d 650 (1995). Regulation of speech activity on governmental property that has been traditionally open to the public for expressive activity, or which has been expressly dedicated to speech activity, is examined under strict scrutiny. Regulation of speech activity on a limited purpose public forum is examined under heightened scrutiny. However, where property is not considered a public forum and the government has not dedicated it to First Amendment activity, the regulation is examined only for reasonableness. U.S. v. Kokinda, 497 U.S. 720, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990).

Plaintiff Davis contends that the Quad is a traditional public forum. Regulation of speech in traditional public forums is subject to strict scrutiny. U.S. v. Grace, 461 U.S. 171, 177, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983). In order to survive strict scrutiny, the application of a statute or policy must be necessary to serve a compelling government interest. Lopez Torres v. New York State Bd. of Elections, 462 F.3d 161, 184 (2d Cir.2006).

Defendants, on the other hand, argue that the Quad constitutes, at most, a limited or designated public forum. Although the parties seem to use the terms interchangeably at times, the Second Circuit has articulated the view that the phrases "designated public forum" and "limited public forum" are not synonyms. See, e.g., N.Y. Magazine v. Metro. Transp. Auth., 136 F.3d 123, 128 & n. 2 (2d Cir.1998) (describing a `limited public forum' as a "sub-category of the designated public forum, where the government `opens a nonpublic forum but limits the expressive activity to certain kinds of speakers or to the discussion of certain subjects.'") (quoting Travis v. Owego-Apalachin Sch. Dist., 927 F.2d 688, 692 (2d Cir.1991)).

A "designated...