Loper v. New York City Police Dept.

• Decision Date: 17 June 1991
• Docket Number: No. 90 Civ. 7546 (RWS).,90 Civ. 7546 (RWS).
• Citation: 766 F. Supp. 1280
• 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 Police of the New York City Police Department, Defendants.
• Court: U.S. District Court — Southern District of New York

766 F. Supp. 1280

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 Police of the New York City Police Department, Defendants.

No. 90 Civ. 7546 (RWS).

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

June 17, 1991.

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

Victor A. Kovner, Corp. Counsel for City of New York, New York City, for defendants; Ira J. Lipton, Bruce Rosenbaum, of counsel.

OPINION

SWEET, District Judge.

Plaintiffs Jennifer Loper ("Loper") and William Kaye ("Kaye"), who are New York City residents, and the class they represent have moved pursuant to Rule 56, Fed.R. Civ.P. for summary judgment upon their 42 U.S.C. § 1983 complaint against defendants New York City Police Department (the "City") and its Commissioner Lee P. Brown ("Brown"). The City has cross moved for summary judgment to dismiss the complaint. For the reasons set forth below, both motions are denied.

Prior Proceedings

Loper and Kaye filed their complaint in this action and moved for class certification on November 23, 1990. On that same day, they commenced an action in the New York State Supreme Court (the "state court action"). Upon the agreement of the parties, the state court action has been adjourned pending the outcome of the proceedings in this court.

Oral argument on the class certification motion was heard on December 21, 1990. In an opinion of April 2, 1991, the court granted Loper's and Kaye's motion for class certification. 135 F.R.D. 81 (S.D.N. Y.).

On February 4, 1991, Loper and Kaye filed a motion for summary judgment pursuant to Rule 56, Fed.R.Civ.P. The Police Department subsequently filed a cross motion for summary judgment. Oral argument on the summary judgment motions was heard on March 8, 1991, and the summary judgment motions were considered submitted as of that date.

The Facts

The Plaintiffs

Loper has been homeless since October of 1990. Since leaving the care of her parents and quitting high school sometime in 1989 until she became homeless, Loper has stayed in a Westchester County halfway house, in a rented apartment in the East Village of New York, and with various friends. She has never stayed in a New York City shelter or a privately run shelter for homeless persons. Loper has applied for public assistance benefits from New York City, but has not yet completed the necessary paperwork. Loper has begged from people on the streets and in the parks of New York City since October of 1990.

Kaye arrived in New York City from his mother's house in Bayport, Long Island in August of 1990. He has been homeless since that time, and living on the streets of the East Village. Before his arrival in New York City, Kaye had experienced an eight month period of homelessness in Long Island, during which time he obtained emergency shelter from various agencies. Kaye has never stayed in a New York City shelter or a privately run shelter for homeless persons and has never applied for public assistance from a New York City agency.

Both Loper and Kaye beg in the East village section of Manhattan. Their usual practice is to stand in the street or park and say to passersby: "Can you spare some change for something to eat?" or "Spare any change for some food, sir or ma'am?" They occasionally engage in conversation with people from whom they beg. Kaye has testified that the police have stopped him from begging between seven and ten times. Loper has testified that the police have stopped her from begging between five and ten times. Generally, the police officers put a stop to Loper's and Kaye's begging by asking them to move along.

The Statute

New York State Penal Law (the "Penal Law") § 240.35(1) (McKinney's 1989) provides that:

A person is guilty of loitering when he: Loiters, remains or wanders about in a public place for the purpose of begging.

Neither Loper nor Kaye has been arrested pursuant to the Penal Law.

Discussion

Summary Judgment Standard

Under Rule 56, a motion for summary judgment shall be granted when the moving party demonstrates as a matter of law that he is entitled to that remedy because there are no genuine issues of material fact present in the action. H.L. Hayden Co. v. Siemens Medical Systems, Inc., 879 F.2d 1005, 1011 (2d Cir.1989). The moving party, however, has the burden of demonstrating the absence of any genuine issue as to all the material facts, and the non-moving party is entitled to all favorable inferences that may be drawn from the evidence. Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 444-45 (2d Cir.1980).

The Summary Judgment Motion of Loper and Kaye

Loper and Kaye initiated this action under 42 U.S.C. § 1983 seeking a declaration that the Penal Law violates the First, Eighth and Fourteenth Amendments to the Constitution of the United States as well as the Constitution of New York State.

In any § 1983 action, the initial inquiry must focus on whether the two elements essential to a § 1983 action are present: (1) whether the conduct complained of was committed by a person acting under color of state law; and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1981).

The first prong is not disputed for the purposes of this motion. With regard to the second prong, Loper and Kaye's evidence consists of affidavits describing their personal histories and the pattern of their lives in the streets and parks of New York. Assuming arguendo that begging is a right secured by the Constitution, Loper and Kaye's affidavits fall short of establishing a constitutional deprivation. For example, it is unclear from the evidence what effect the police's orders to "move along" have on Loper's and Kaye's ability to beg.¹

In short, at this early stage of the litigation, before discovery has taken place, the existing evidence is insufficient to establish an injury under § 1983 sufficient to grant Loper and Kaye's summary judgment motion. See Caulfield v. Bd. of Educ., 583 F.2d 605 (2d Cir.1978) (affirming trial court's denial of preliminary injunction in § 1983 action where plaintiffs did not adduce evidence of irreparable injury); McCann v. Coughlin, 698 F.2d 112, 126 (2d Cir.1983) (citations omitted) (in § 1983 action for damages, plaintiffs must establish "actual injury.").

Accordingly, Loper's and Kaye's summary judgment motion is denied at this time, with leave to renew upon the completion of discovery.

The Summary Judgment Motion of the City

I. The First Amendment Claim

In support of its summary judgment motion, the City asserts with regard to Loper and Kaye's First Amendment claims, that as a matter of law, begging is not speech and therefore is not protected by the First Amendment. In support of this proposition, the City cites Young v. New York City Transit Authority, 903 F.2d 146 (2d Cir.1990), cert. denied, ___ U.S. ___, 111 S.Ct. 516, 112 L.Ed.2d 528 (1990), in which the Second Circuit, in the face of a similar constitutional challenge, upheld New York City Transit Authority regulations prohibiting begging and panhandling in the New York City subway system.

A. The Decision in Young

In Young, the Court of Appeals reversed an opinion of the Honorable Leonard B. Sand of this District Court which had enjoined the Transit Authority from enforcing the regulations on the grounds that begging can be expression protected by the First Amendment, that parts of the New York City subway system constitute a public forum, and that the regulations were not narrowly tailored to serve the state's interest. Young v. New York City Transit Authority, 729 F.Supp. 341 (S.D.N.Y. 1990), rev'd in part, vacated, in part, 903 F.2d 146 (2d Cir.1990), cert. den., ___ U.S. ___, 111 S.Ct. 516, 112 L.Ed.2d 528 (1990).

Initially, the Court of Appeals considered whether begging was speech, and as part of that analysis, distinguished the Transit Authority regulations from the provisions considered in a trilogy of cases relied upon by the District Court which held that charitable solicitation enjoys First Amendment protection. Riley v. Nat'l Federation of Blind, 487 U.S. 781, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988); Secretary of State of the State of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984); Schaumburg v. Citizens for Better Environment, 444 U.S. 620, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980). The second part of the opinion examined the Transit Authority regulations in light of the standards for evaluating restrictions on expressive conduct set forth in United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), and concluded that the regulations were justified on the grounds that they left open alternate channels of communication. The third part of the opinion applied public forum analysis and found that the Transit Authority never intended to designate sections of the subway system as a place for "begging and panhandling." Young, 903 F.2d at 161.

Given its structure and method of analysis, the Court of Appeals opinion in Young appears to rest primarily upon its O'Brien analysis to the effect that the regulations are not unduly restrictive and, therefore, seems able to stand without the leg that considers whether begging is speech².

In considering this question, the Court of Appeals first expressed doubt as to whether begging was fully protected speech and determined, rather, that "the real issue here is whether begging constitutes the kind of `expressive conduct' protected to some extent by the First Amendment." Id., at 153.³ While the court indicated its belief that "speech simply is not inherent to the act of begging; it is not of the essence of the conduct," the court implied that its remarks to this effect should...