Loper v. New York City Police Dept.

• Decision Date: 29 July 1993
• Docket Number: No. 1035,D,1035
• Citation: 999 F.2d 699
• Parties: Jennifer LOPER, William Kaye, on behalf of themselves, and all others similarly situated, Plaintiffs-Appellees, v. The NEW YORK CITY POLICE DEPARTMENT, Lee P. Brown, Commissioner of NYC Police Dept., Defendants-Appellants. ocket 92-9127.
• Court: U.S. Court of Appeals — Second Circuit

Page 699

999 F.2d 699

62 USLW 2067

Jennifer LOPER, William Kaye, on behalf of themselves, and all others similarly situated, Plaintiffs-Appellees, v. The NEW YORK CITY POLICE DEPARTMENT, Lee P. Brown Commissioner of NYC Police Dept., Defendants-Appellants.

No. 1035, Docket 92-9127.

United States Court of Appeals Second Circuit.

Argued May 12, 1993.

Decided July 29, 1993.

Fay Leoussis, Asst. Corp. Counsel City of New York, New York City (O. Peter Sherwood, Corp. Counsel, Leonard Koerner, Bruce Rosenbaum, of counsel), for defendants-appellants.

George Sommers, New York City, for plaintiffs-appellees.

Robert Teir and Henry J. Stern, New York City Submitted a Brief for amici curiae American Alliance for Rights and Responsibilities and The Citizens Union of the City of New York in Support of defendants-appellants.

Before: MINER, McLAUGHLIN and FRIEDMAN, ^* Circuit Judges.

MINER, Circuit Judge:

Defendants-appellants The New York City Police Department and Lee F. Brown, Commissioner of the Department, ("City Police") appeal from a summary judgment entered in the United States District Court for the Southern District of New York (Sweet, J.) in favor of plaintiffs-appellees Jennifer Loper and William Kaye, on behalf of themselves and all others similarly situated ("Plaintiffs"). The district court in this case has certified a plaintiff class consisting of all "needy persons who live in the State of New York, who beg on the public streets or in the public parks of New York City." Loper v. New York City Police Dep't, 802 F.Supp. 1029, 1033 (S.D.N.Y.1992). The court defined a "needy person" as "someone who, because of poverty, is unable to pay for the necessities of life, such as food, shelter, clothing, medical care, and transportation." Id. The judgment declared unconstitutional on First Amendment grounds the following provision of the New York Penal Law and enjoined the City Police from enforcing it:

A person is guilty of loitering when he:

1. Loiters, remains or wanders about in a public place for the purpose of begging....

N.Y. Penal Law § 240.35(1) (McKinney 1989).

On appeal, the City Police argue that begging has no expressive element protected by the First Amendment, that even if a speech interest is implicated in Plaintiffs' conduct, the government's interest in the maintenance of order outweighs the Plaintiffs' interest, and that, in any event, the message Plaintiffs seek to convey is entitled only to the "minimal protection" afforded by the "outer perimeters of the First Amendment."

The City Police regard the challenged statute as an essential tool to address the evils associated with begging on the streets of New York City. They assert that beggars tend to congregate in certain areas and become more aggressive as they do so. Residents are intimidated and local businesses suffer accordingly. Panhandlers are said to station themselves in front of banks, bus stops, automated teller machines and parking lots and frequently engage in conduct described as "intimidating" and "coercive." Panhandlers have been known to block the sidewalk, follow people down the street and threaten those who do not give them money. It is said that they often make false and fraudulent representations to induce passers-by to part with their money. The City Police have begun to focus more attention on order maintenance activities in a program known as "community policing." They contend that it is vital to the program to have the statute available for the officers on the "beat" to deal with those who threaten and harass the citizenry through begging.

Although it is conceded that very few arrests are made and very few summonses are issued for begging alone, officers do make frequent use of the statute as authority to order beggars to "move on." The City Police advance the theory that panhandlers, unless stopped, tend to increase their aggressiveness and ultimately commit more serious crimes. According to this theory, what starts out as peaceful begging inevitably leads to the ruination of a neighborhood. It appears from the contentions of the City Police that only the challenged statute stands between safe streets and rampant crime in the city.

It is ludicrous, of course, to say that a statute that prohibits only loitering for the purpose of begging provides the only authority that is available to prevent and punish all the socially undesirable conduct incident to begging described by the City Police. There are, in fact, a number of New York statutes that proscribe conduct of the type that may accompany individual solicitations for money in the city streets. For example, the crime of harassment in the first degree is committed by one who follows another person in or about a public place or places or repeatedly commits acts that place the other person in reasonable fear of physical injury. N.Y. Penal Law § 240.25 (McKinney Supp.1993). If a panhandler, with intent to cause public inconvenience, annoyance or alarm, uses obscene or abusive language or obstructs pedestrian or vehicular traffic, he or she is guilty of disorderly conduct. N.Y. Penal Law §§ 240.20(3), (5) (McKinney 1989). A beggar who accosts a person in a public place with intent to defraud that person of money is guilty of fraudulent accosting. Id. § 165.30(1). The crime of menacing in the third degree is committed by a panhandler who, by physical menace, intentionally places or attempts to place another person in fear of physical injury. N.Y. Penal Law § 120.15 (McKinney Supp.1993).

The distinction between the statutes referred to in the preceding paragraph and the challenged statute is that the former prohibit conduct and the latter prohibits speech as well as conduct of a communicative nature. Whether the challenged statute is consonant with the First Amendment is the subject of our inquiry. We do not write upon a clean slate as regards this inquiry, since the Supreme Court as well as this Court has addressed restrictions on the solicitation of money in public places.

In Young v. New York City Transit Authority, 903 F.2d 146 (2d Cir.), cert. denied, 498 U.S. 984, 111 S.Ct. 516, 112 L.Ed.2d 528 (1990), there was at issue before us a regulation prohibiting begging and panhandling in the New York City Subway System. In that case we "wonder[ed]" whether the beggars' "conduct is not divested of any expressive element as a result of the special surrounding circumstances involved in" begging in the subway, but we did not rest our decision "on an ontological distinction between speech and conduct." Id. at 154. We did find that the conduct element of begging, in the confined atmosphere of the subway, " 'disrupts' and 'startles' passengers, thus creating the potential for a serious accident in the fast-moving and crowded subway environment." Id. at 158. This finding led to our conclusion that the New York City Transit Authority's "judgment that begging is alarmingly harmful conduct that simply cannot be accommodated in the subway system is not unreasonable." Id.

In our First Amendment analysis in Young, we applied the "more lenient level of judicial scrutiny," id. at 157, prescribed in United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968) (conviction for destruction of draft card in anti-war protest allowed to stand where speech and nonspeech elements combined in same course of conduct). In accordance with the test outlined in O'Brien, we determined: 1) that the subway regulation was within the constitutional power of government; 2) that the regulation advanced substantial and important governmental interests; 3) that the governmental interests were not related to the suppression of free expression; and 4) that, because "the exigencies created by begging and panhandling in the subway warrant the conduct's complete prohibition," Young, 903 F.2d at 159, the First Amendment freedom restrictions were no greater than were essential to further the government's interest. Id. at 157-59. Citing Ward v. Rock Against Racism, 491 U.S. 781, 802, 109 S.Ct. 2746, 2759-60, 105 L.Ed.2d 661 (1989), we observed that ample alternative channels of communication were open. Most pertinent to our analysis in the case at bar, we stated:

Under the regulation, begging is prohibited only in the subway, not throughout all of New York City. It is untenable to suggest, as do the plaintiffs, that absent the opportunity to beg and panhandle in the subway system, they are left with no means to communicate to the public about needy persons.

Young, 903 F.2d at 160. The case before us does prohibit begging throughout the City and does leave individual beggars without the means to communicate their individual wants and needs.

We also decided in Young that the district court erred in concluding that the subway is a public forum where begging and panhandling must be allowed. We indicated that the subway is at best a limited forum that could be, and was, properly restricted as to the types of speech and speakers permitted:

[T]here can be no doubt that the [New York City Transit Authority] intended to continue its long-standing prohibition of begging and panhandling even after revising the regulation to permit solicitation by organizations.

Id. at 161. The special conditions of the subway system were said to require a limitation on expressive activity, and we referred in Young to our earlier holding in Gannett Satellite Information Network, Inc. v. Metropolitan Transportation Authority, 745 F.2d 767, 772-73 (2d Cir.1984), that the subway is not an open forum for public communication either by tradition or designation. Despite government ownership, it is the nature of the forum that we must examine in order to determine the extent to which expressive activity may be regulated. It long has been settled that all forms of speech need not be permitted on property owned and controlled by a governmental entity. United States Postal Serv. v. Council of Greenburgh Civic Ass'ns, 453 U.S....