Loper v. New York City Police Dept.

• Citation: 802 F. Supp. 1029
• Decision Date: 30 September 1992
• Docket Number: No. 90 Civ. 7546 (RWS).,90 Civ. 7546 (RWS).
• Parties: Jennifer LOPER and William Kaye on behalf of themselves and all other persons who are similarly situated, Plaintiffs, v. NEW YORK CITY POLICE DEPARTMENT, and Lee P. Brown, as the Commissioner of the New York City Police Department, Defendants.
• Court: U.S. District Court — Southern District of New York

802 F. Supp. 1029

Jennifer LOPER and William Kaye on behalf of themselves and all other persons who are similarly situated, Plaintiffs, v. NEW YORK CITY POLICE DEPARTMENT, and Lee P. Brown, as the Commissioner of the New York City Police Department, Defendants.

No. 90 Civ. 7546 (RWS).

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

September 30, 1992.

George Sommers, New York City, and Hoboken, N.J., for plaintiffs.

O. Peter Sherwood, Corp. Counsel by Ira J. Lipton, Bruce Rosenbaum, Asst. Corp. Counsel, of counsel, New York City, for defendants.

OPINION

SWEET, District Judge.

As Alfred Hitchcock, the master of cinematographic terror and suspense, is reported to have said, "terror results from disorder," and begging, the subject of the statute here under constitutional attack, over time has been viewed as the archetypical expression of disorder.¹ Since the early days of western civilization, people have sought to define the conduct that violates society's sense of order and that which society permits or even encourages.² Yet, as civilization as a whole has moved forward, people have learned time and again that suppressing speech and conduct deemed contrary to a society's sense of order merely masks the underlying disorder.³ These motions for summary judgment require the resolution of a modernday constitutional challenge to a statute which provides that loitering for the purpose of begging is a crime.

Out of the maelstrom of conflicting values, precedents, and decisional principles, against a background of established facts ambiguously interpreted, the determination is reached that the motion of the Defendants Police Department of the City of New York (the "Department," the "City") and Lee P. Brown, the Police Commissioner, to dismiss the complaint is denied, and the cross-motion of the named class plaintiffs, Jennifer Loper and William Kaye (the "Plaintiffs"), to declare the statute unconstitutional is granted.

Directly arrayed against each other are the requirements to maintain public order as determined by the legislative representatives of the society and the protection of free expression as guaranteed by the First Amendment of the Constitution. These contending principles are starkly presented in the setting of New York City, where "urban man must distinguish carefully between his private life and his public relationships."⁴ And the issues raised by this case expose not only the inevitable tension between individual rights and the interests of society but the very rationality of our society in its commitment to the rights protected by the First Amendment. The problem is succinctly stated by Professor T.M. Scanlon, Jr.:

The doctrine of freedom of expression is generally thought to single out a class of "protected acts" which it holds to be immune from restrictions to which other acts are subject. In particular, on any very strong version of the doctrine there will be cases where protected acts are held to be immune from restriction despite the fact that they have as consequences harms which would normally be sufficient to justify the imposition of legal sanctions. It is the existence of such cases which makes freedom of expression a significant doctrine and which makes it appear, from a certain point of view, an irrational one.... To answer this charge of irrationality is the main task of a philosophical defense of freedom of expression.

Thomas Scanlon, A Theory of Freedom of Expression, 1 Phil. & Pub.Aff. 204, 204 (1972).

The case at hand is precisely the sort that brings the apparent irrationality of the doctrine of the freedom of expression into sharp relief. Because I acknowledge the disorder inherently associated with and manifested by this form of expression, to wit, a kind of disorder that gives rise to a wide spectrum of effects ranging from mere annoyance and inconvenience to genuine terror, I conclude that it is necessary to determine the standing of the Plaintiffs, the interest of the City, the manner, content, and nature of the expression involved, the test to be applied in light of the history of the issue, the precedents, and the conflicting views of First Amendment enforcement, and finally, the balancing of factors upon which this decision rests. Others may perceive shorter cuts to a resolution, but I fail to do so.

It should be noted that, once again, difficult constitutional issues are being presented in an abstract fashion as a result of the class action procedure.⁵ The size of the class is, and will remain, unknown. Indeed the issues are presented with an unfortunate degree of abstraction.⁶ The course of the proceedings reveals the obstacles that have been met in the effort to present the relevant factual considerations.

The Statute

The Plaintiffs have contended that the following statute contravenes the First, Eighth, and Fourteenth Amendments to the United States Constitution:

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) (the "Statute").

One would expect the Statute's roots to be deep, and indeed they are. Its post-independence genesis may be found in a 1788 statute that classified as disorderly persons "all persons who go about from door to door or place themselves in the streets, highways or passages, to beg in the cities and towns...." 2 Laws of the State of New York 643 (Weed Parsons 1886). The primary concern of this law and its successors appears to have been keeping able-bodied persons from remaining idle.

Blackstone echoes this concern in his Commentaries, noting that "idleness in any person is also a high offence against the public economy." 4 William Blackstone, Commentaries *169.⁷ He traces this concern back to Ancient Greece, where sturdy vagrants were expelled from cities. The poor laws of sixteenth and early seventeenth century England appear to have drawn one of the clearest distinctions between able-bodied beggars and those who could not support themselves. The former were punished. The latter were initially given relief, but, when that failed, were later licensed. See 4 W.S. Holdsworth, History of English Law 392-99, 511 (1924); C.J. Ribton-Turner, A History of Vagrants and Vagrancy and Beggars and Begging 72-75 (1887).⁸

Prior Proceedings

The Plaintiffs filed this and a companion state action on November 23, 1990. The parties agreed to stay the state action pending the resolution of this lawsuit. In their Complaint, the Plaintiffs seek a declaration that § 240.35(1) and the Defendant's enforcement of it violate the First, Eighth, and Fourteenth Amendments to the United States Constitution, pursuant to 42 U.S.C. § 1983. They also seek relief under the New York State Constitution.

The same day they filed this action, the Plaintiffs requested that it be maintained as a class. Their request was granted on April 2, 1991, provided the Plaintiffs submitted a suitable definition of the term "needy." Loper v. New York City Police Department, 135 F.R.D. 81, 83 (S.D.N.Y. 1991) ("Loper I"). On April 8, 1991, the Plaintiffs provided a further definition of "needy," which was accepted subject to modification as the facts developed. Loper v. New York City Police Department, No. 90 Civ. 7546, slip op. at 6, 1991 WL 135631 (S.D.N.Y. July 15, 1991) ("Loper III"). Together, Loper I and Loper III define a Plaintiff Class consisting of all those "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," where a "needy person" is defined as "someone who, because of poverty, is unable to pay for the necessities of life, such as food, shelter, clothing, medical care, and transportation."

Both parties moved for summary judgment in February 1991, before any significant discovery had taken place. Their motions were denied with leave to renew upon further discovery on June 17, 1991. Loper v. New York City Police Department, 766 F.Supp. 1280 (S.D.N.Y.1991) ("Loper II").

On November 19, 1991, the Plaintiffs again moved for summary judgment prior to the close of the discovery period. This motion was denied without prejudice as well, principally on the ground that the City had raised a question of fact concerning its enforcement scheme. Loper v. New York City Police Department, 785 F.Supp. 464 (S.D.N.Y.1992) ("Loper IV").

The Defendants filed their present motion for summary judgment on April 21, 1992. The Plaintiffs meanwhile filed a motion for additional discovery. The Plaintiffs' motion was granted in part, and the Defendants ordered to turn over additional data to the Plaintiffs, primarily concerning the number of summonses the Department has issued under the Statute. The Plaintiffs then filed a cross-motion for summary judgment. Oral argument on the summary judgment motions was consolidated and heard on July 8, 1992. Final submissions were received on July 20, 1992.

The Facts

I. The Plaintiffs

The Plaintiffs are homeless. They beg on the streets and in the parks of New York City. The money they receive goes towards providing them with food, shelter, clothing, transportation, and medicine. At times, they discuss their plight with those they encounter.

The Plaintiffs have never been arrested for begging, nor have they ever received a summons. The police occasionally order them to stop begging and to move along. The size of the Plaintiff Class is unknown to both parties.

II. The Defendants

The Department enforces the Statute. Data gleaned from summons statistics covering 1986 to the present show the Department has enforced the Statute against a significant number of persons who presumably are members of the Plaintiff Class. A relatively smaller number of class members have been arrested under the Statute. A number of precincts have also initiated aggressive programs under the Statute against people begging in their respective neighborhoods.

The Department's ability, in this day and age, to gather...