Latino Officers Ass'n v. NYC

• Decision Date: 01 August 1998
• Docket Number: Docket No. 99-7657
• Citation: 196 F.3d 458
• Parties: (2nd Cir. 1999) LATINO OFFICERS ASSOCIATION, NEW YORK, INC., and ANTHONY MIRANDA, in his capacity as President of the Latino Officers Association, New York, Inc., on behalf of its members, Plaintiffs-Appellees, v. THE CITY OF NEW YORK, THE POLICE DEPARTMENT OF THE CITY OF NEW YORK, RUDOLPH W. GIULIANI, Mayor of the City of New York, and HOWARD SAFIR, Police Commissioner of the City of New York, Defendants-Appellants
• Court: U.S. Court of Appeals — Second Circuit

Page 458

196 F.3d 458 (2nd Cir. 1999)

LATINO OFFICERS ASSOCIATION, NEW YORK, INC., and ANTHONY MIRANDA, in his capacity as President of the Latino Officers Association, New York, Inc., on behalf of its members, Plaintiffs-Appellees, v. THE CITY OF NEW YORK, THE POLICE DEPARTMENT OF THE CITY OF NEW YORK, RUDOLPH W. GIULIANI, Mayor of the City of New York, and HOWARD SAFIR, Police Commissioner of the City of New York, Defendants-Appellants.

Docket No. 99-7657

August Term, 1998

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: July 13, 1999

Decided: November 17, 1999

Appeal from an order of the United States District Court for the Southern District of New York (Kimba M. Wood, Judge), preliminarily enjoining defendants-appellants from prohibiting members of plaintiff-appellee Latino Officers Association from marching, in uniform and behind a Latino Officers Association banner, in various parades. Latino Officers Ass'n v. City of New York, No. 97 Civ. 1384(KMW), 1999 WL 386753 (S.D.N.Y. June 10, 1999). On appeal, defendants challenge the District Court's conclusion that plaintiffs have demonstrated a likelihood of success on the merits of their First Amendment claims.

Affirmed.

[Copyrighted Material Omitted] CHRISTOPHER T. DUNN, New York Civil Liberties Union, New York, NY (Arthur Eisenberg and Norman Siegel, New York Civil Liberties Union, New York, NY, of counsel), for Plaintiffs-Appellees.

STUART D. SMITH, Office of the Corporation Counsel of the City of New York (Michael D. Hess, Corporation Counsel of the City of New York; and Barry P. Schwartz, Assistant Chief, Appeals Division, of counsel), for Defendants-Appellants.

(J. Michael McGuinness, Elizabethtown, NC, for amicus curiae National Troopers Coalition.)

Before: WINTER, Chief Judge, and WALKER and CABRANES, Circuit Judges.

JOSE A. CABRANES, Circuit Judge:

The City of New York, the New York City Police Department, Mayor Rudolph W. Giuliani, and Police Commissioner Howard Safir (collectively, the "NYPD") appeal from an order of the United States District Court for the Southern District of New York (Kimba M. Wood, Judge), entered June 10, 1999, preliminarily enjoining the NYPD from prohibiting members of plaintiff Latino Officers Association ("LOA") from marching, in uniform and behind an LOA banner, in various parades. See Latino Officers Ass'n v. City of New York, No. 97 Civ. 1384(KMW), 1999 WL 386753 (S.D.N.Y. June 10, 1999) ("LOA"). The District Court found, inter alia, that plaintiffs had demonstrated a substantial likelihood of success on the merits of their claim that the NYPD policy at issue violated LOA members' rights under the First Amendment. Several days before the last of the parades in question, in an order entered October 6, 1999, we affirmed the judgment of the District Court, and indicated that we would thereafter file an opinion explaining our reasons for that disposition. We now explain those reasons.

BACKGROUND

The LOA is a fraternal organization that seeks to promote the ideals, goals, and interests of Hispanic officers in the NYPD.¹ The organization was founded in 1996 by a dissident faction of the Hispanic Society, another fraternal organization of the NYPD. The LOA is headed by plaintiff Anthony Miranda, and currently has about 1500 members; in contrast, the Hispanic Society has approximately 250 members.

In February 1997, plaintiffs brought this action, under 42 U.S.C. 1983, challenging the process by which the NYPD officially recognizes groups composed of NYPD members organized on the basis of ethnicity, religion, and sexual orientation. Such official recognition-currently accorded to 25 groups, including the Hispanic Society, see LOA, 1999 WL 386753, at *1 n.2 (listing all 25)-allows an organization to use NYPD facilities for meetings and fundraising, to post notices on NYPD bulletin boards, to list events in the official NYPD calendar of events, and to recruit members at the Police Academy. In addition, only a recognized organization may seek permission on behalf of its members to march in a parade in uniform and behind the organization's banner. If a recognized organization is marching in a parade, any officer may march in uniform behind that organization's banner. In contrast, if an officer chooses to march behind the banner of an unrecognized group, he may not wear his NYPD uniform.

The process by which groups apply for recognition by the NYPD is now set forth in NYPD Personnel Bureau Memo 30 ("PBM 30"), which was promulgated in May 1998. According to PBM 30, "official recognition of an organization is at the sole discretion of the police commissioner." To be recognized, however, the objectives of a prospective organization "must be consistent with the goals and mission of the [NYPD] ... [and] consistent with the law." Further, PBM 30 notes that, "[i]n order to promote harmony within the Department, discourage rivalries between groups of officers and conserve the resources of the Department hierarchy in meeting with and supervising the activities of recognized organizations, the Department discourages the formation of multiple organizations which purport to serve the same goals and missions."

The LOA applied for recognition from the NYPD pursuant to PBM 30 in May 1998 and, when no response was forthcoming, again in January 1999.² On May 5, 1999, defendant Safir denied the LOA's application, asserting that the LOA's purposes and objectives mirrored those of the Hispanic Society, which was already recognized by the NYPD. The LOA questions whether this justification was offered in good faith, contending that the NYPD favors the Hispanic Society because it has political ties to the Mayor and because it has not been as active as the LOA in challenging NYPD discrimination against minorities.

Following the NYPD's rejection of the LOA's application for recognition, plaintiffs moved for a preliminary injunction with respect to only the parade provisions of the NYPD recognized group policy. Specifically, plaintiffs sought an order prohibiting the NYPD from preventing members of the LOA from marching in uniform and behind the LOA banner in five parades from June 1999 to October 1999.³ The District Court granted the motion, finding that plaintiffs had a First Amendment interest in wearing NYPD uniforms in public parades and that the NYPD had failed to demonstrate that plaintiffs' interest was "outweighed by [the] expression's necessary impact on the actual operation of the Government." LOA, 1999 WL 386753, at *4 (internal quotation marks omitted).⁴ This appeal followed.⁵ Like the preliminary injunction, this appeal concerns only the parade provisions of the NYPD recognized group policy.

DISCUSSION

We review a decision to grant a preliminary injunction for abuse of discretion. See SEC v. Cavanagh, 155 F.3d 129, 132 (2d Cir. 1998). A preliminary injunction will be overturned if the district court "applie[d] legal standards incorrectly or relie[d] upon clearly erroneous findings of fact." Id. (internal quotation marks omitted).

Where, as here, a moving party seeks a preliminary injunction to stay "'government action taken in the public interest pursuant to a statutory or regulatory scheme,'" that party must show irreparable harm in the absence of an injunction and a likelihood of success on the merits. New York Magazine v. Metropolitan Transp. Auth., 136 F.3d 123, 127 (2d Cir.) (quoting Jolly v. Coughlin, 76 F.3d 468, 473 (2d Cir. 1996)), cert. denied, 119 S. Ct. 68 (1998); accord Able v. United States, 44 F.3d 128, 131 (2d Cir. 1995) (per curiam). Violations of First Amendment rights "are commonly considered irreparable injuries for the purposes of a preliminary injunction." Bery v. City of New York, 97 F.3d 689, 693 (2d Cir. 1996), cert. denied, 520 U.S. 1251 (1997); see also Deeper Life Christian Fellowship, Inc. v. Board of Educ., 852 F.2d 676, 679 (2d Cir. 1988) ("'[The] loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.'" (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976))). Accordingly, in the context of this case, whether plaintiffs have satisfied the requirements for a preliminary injunction turns on whether they have shown a likelihood of success on the merits of their claim that the NYPD parade policy violates their rights under the First Amendment. See Beal v. Stern, 184 F.3d 117, 123-24 (2d Cir. 1999).

I. Restrictions on Government Employee Speech

It is well established that "[i]ndividuals do not relinquish their First Amendment rights by accepting employment with the government." Harman v. City of New York, 140 F.3d 111, 117 (2d Cir. 1998) (citing Pickering v. Board of Educ., 391 U.S. 563, 568 (1968)). Nevertheless, the state does have "interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general." Pickering, 391 U.S. at 568. Accordingly, the government "may impose restraints on the job-related speech of public employees that would be plainly unconstitutional if applied to the public at large." United States v. National Treasury Employees Union, 513 U.S. 454, 465 (1995) ("NTEU"). In evaluating a restriction on government employees' speech, a court must seek "to arrive at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering, 391 U.S. at 568.

The District Court, relying on the Supreme Court's decision in NTEU, subjected defendants to a higher burden of justification than normally required of the government when the free speech interests of its employees are at stake, on the ground that the NYPD parade policy restrains speech "before it occurs." LOA, 1999 WL 386753, at *4. In NTEU, which involved a statute...