Million Youth March, Inc. v. Safir, Docket No. 98-9152

• Decision Date: 01 September 1998
• Docket Number: Docket No. 98-9152
• Citation: 155 F.3d 124
• Parties: MILLION YOUTH MARCH, INC., Plaintiff-Appellee, v. Howard SAFIR, Commissioner of the New York City Police Department, The City of New York, and Rudolph Giuliani, Mayor of the City of New York, Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

Page 124

155 F.3d 124

MILLION YOUTH MARCH, INC., Plaintiff-Appellee, v. Howard SAFIR, Commissioner of the New York City Police Department, The City of New York, and Rudolph Giuliani, Mayor of the City of New York Defendants-Appellants.

Docket No. 98-9152.

United States Court of Appeals Second Circuit.

Argued Sept. 1, 1998.

Decided Sept. 1, 1998.

Michael D. Hess, Corporation Counsel, New York City (Stephen J. McGrath, Robin Binder, Ellen Ravitch, Office of the Corporation Counsel of the City of New York, New York City, on the brief), for defendants-appellants.

Michael W. Warren, Brooklyn, NY (Evelyn W. Warren, Brooklyn, NY, on the brief), for plaintiff-appellee.

(Christopher Dunn, Norman Siegel, Arthur Eisenberg, New York City, submitted a brief for amicus curiae New York Civil Liberties Union Foundation).

Before: NEWMAN, CARDAMONE and PARKER, Circuit Judges.

JON O. NEWMAN, Circuit Judge:

We have considered the City's emergency motion for a stay of the injunction dated August 26, 1998, issued by the District Court for the Southern District of New York (Lewis A. Kaplan, Judge), and make the following ruling. The District Court issued an injunction that requires the City to issue a permit to Million Youth March, Inc. for an event on Saturday, September 5, to be held along a 29-block portion of Malcolm X Boulevard from 118th Street to 147th Street in Harlem during the hours of 7 a.m. to 7 p.m.

In granting the injunction, the District Court properly recognized that "any permit scheme controlling the time, place, and manner of speech must not be based on the content of the message, must be narrowly tailored to serve a significant governmental interest, and must leave open ample alternatives for communication." Forsyth County v. Nationalist Movement, 505 U.S. 123, 130, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992). The District Court found as a fact that the City denied the plaintiff's application in the exercise of authority pursuant either to the so-called "Activity Rules" of the Street Activity Permit Office of the Community Affairs Unit of the Office of the Mayor or a combination of the Activity Rules and the parade permit rules of Section 10-110 of the New York City Administrative Code. The Court also concluded that the Activity Rules accorded administrators unfettered discretion contrary to well established First Amendment limitations. See Shuttlesworth v. City of Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969). Since the City's denial was issued by the Community Affairs Unit, without any reference to Section 10-110, the record plainly supports the finding that the Activity Rules were either the exclusive authority invoked for the denial of the application or at least a substantial part of such authority. At this stage of the litigation, we have no basis to question the Court's conclusion that the standardless nature of the Activity Rules rendered the denial a violation of the First Amendment.

The unconstitutionality of the denial, however, does not mean that the plaintiff is entitled to have a district court issue an injunction ordering the City to allow the event precisely as the plaintiff wishes to hold it. An injunction is an exercise of a court's equitable authority, and the exercise of that authority, in the vindication of any legal protection, including the First Amendment, must sensitively assess all the equities of the situation, including the public interest. We have implemented that principle in the context of the exercise of First Amendment rights. See Olivieri v. Ward, 801 F.2d 602, 607-08 (2d Cir.1986) (modifying injunction specifying terms under which demonstrators could assemble on sidewalk in front of St. Patrick's Cathedral).

In this case, the District Court, having ruled that the permit denial was unconstitutional, moved too rapidly to require the City to allow precisely what the plaintiff requested. In doing so, the Court appears to have focused only on what the City was physically capable of handling. In rejecting the City's assertion of health and safety interests that justified the permit denial, the Court wrote:

Far more important, the City has ample ability to deal with any problems of congestion, emergency access, overcrowding and fire risk that may arise while allowing the event to go forward in some form at this date and place.... And the Police Department is fully capable of closing access to Malcolm X Boulevard and environs if its safe capacity is reached and directing any overflow crowd into nearby areas.... Indeed, police officials indicated that the department could police the event with approximately 2,000 to 3,000 officers on each of two tours. Moreover, despite repeated focus on the issue, the City declined to assert that it lacks the necessary personnel.

Memorandum Opinion 24-25.

However, when a federal district court crafts an injunction to vindicate a plaintiff's protected rights, it cannot simply order whatever a City is physically capable of doing, without regard to considerations of public health, safety, convenience, and cost. On the contrary, the Court must make a sound exercise of equitable discretion that considers all the relevant circumstances. The invalidity of a permit regulation cannot automatically entitle a plaintiff to hold its event precisely as it wishes. An example can readily demonstrate this point. If a small town with a police force of 100 denied a permit for a mass meeting of thousands that an applicant group wanted to hold for 24 hours along the town's main street, even a total lack of standards in the permit regulation in flagrant violation of the First Amendment would not justify a district court injunction requiring an event of such scope, location, and duration.

In this case, the District Court appears to have granted the plaintiff precisely the relief it requested in part because of testimony about the City's ability to handle large crowds at other events, including one in Harlem. However, those events were not held at a time when the City's police resources were stretched as thin as on the upcoming Labor Day weekend, nor did they occupy the same number of streets or last as long a time as the plaintiff's planned event. The 1990 celebration of the visit of Nelson and Winnie Mandela, which attracted a crowd estimated between 100,000 and 200,000 was confined within a three to four block area. Id. The annual West Indian Day parade lasts about six hours. The Yankees championship parade, which attracted a huge crowd, lasted two to two and one-half hours. The New Year's Eve closure of the Times Square area lasts three to four hours.

The record in this case makes clear that many relevant circumstances have not been adequately considered by the District Court in issuing its injunction for the First Amendment violation that occurred. The Labor Day weekend is an especially busy time for the City's police personnel. Because of the holiday, far more officers than usual are on vacation. Moreover, the holiday weekend already has some 130 events scheduled. Chief among these is the weekend West Indian Day Parade, an event that includes a children's parade on Saturday, September 5, estimated, from past events, to draw some 35,000 people, and the main parade on Monday, estimated to draw one million people. In addition, on that weekend the United States Open Tennis Championship reaches it final stages, and the Mets baseball team is at home.

The plaintiff's planned event is significantly different than anything the City has been called upon to accommodate in the past. The undisputed testimony is that even a city as large and well policed as New York City has never before had to accommodate a stationary (i.e., non-parade) event that massed thousands along 29 blocks of one avenue for a duration of 12 hours.

The police officer responsible for allocating manpower for special events estimated that the plaintiff's event, if held as scheduled, would require between 3,000 to 5,000 personnel "depending on the length of the event." He testified that he is already experiencing extreme difficulty in locating sufficient personnel for the long-scheduled West Indian Day Parade.

The need to consider all of the pertinent circumstances is made plain in this record. The First Deputy Commissioner of the Fire Department testified that holding the event as requested by the plaintiff would "pose a near catastrophic public safety risk." The area is a high density residential area posing special fire hazards and requiring more than just straightaway access for fire vehicles.

All the pertinent circumstances persuade us that the District Court exceeded the scope of its allowable discretion in issuing an injunction that required the City to allow the plaintiff's event in precisely the dimensions that the plaintiff requested. At oral argument, we were informed that, based on current information, the plaintiff now estimates an attendance of about 50,000, which is less than the size of the crowd accommodated with a three to four block area at 125th Street at the Mandela event. The relevant circumstances make clear that if the plaintiff prefers to go ahead with an event on September 5 at the location of Malcolm X Boulevard, the duration should be limited to four hours...