Picard v. Magliano

• Decision Date: 27 July 2022
• Docket Number: Docket No. 20-3161,August Term, 2021
• Parties: Michael PICARD, Plaintiff-Appellee, v. Michael MAGLIANO, in his official capacity as Chief of Public Safety for the New York Unified Court System, Defendant-Appellant, Darcel D. Clark, in her official capacity as District Attorney for Bronx County, Defendant.
• Court: U.S. Court of Appeals — Second Circuit

42 F.4th 89

Michael PICARD, Plaintiff-Appellee,

v.Michael MAGLIANO, in his official capacity as Chief of Public Safety for the New York Unified Court System, Defendant-Appellant,Darcel D. Clark, in her official capacity as District Attorney for Bronx County, Defendant.

Docket No. 20-3161

August Term, 2021

United States Court of Appeals, Second Circuit.

Argued: October 25, 2021

Decided: July 27, 2022

Eric Del Pozo, Assistant Solicitor General, New York, NY (Letitia James, Attorney General; Barbara D. Underwood, Solicitor General; Steven C. Wu, Deputy Solicitor General, on the brief), for Defendant-Appellant Michael Magliano.

Brian M. Hauss, (Arianna M. Demas, on the brief), American Civil Liberties Union Foundation, New York, NY, for Plaintiff-Appellee Michael Picard.

Dwayne D. Sam, Christina Jones, Karsyn N. Keener (law student), Patton Solowey (law student), Williamsburg, VA, for Amicus Curiae William & Mary Law School Appellate and Supreme Court Clinic.

Before: Newman, Lynch, and Park, Circuit Judges.

Judge Newman concurs in part and dissents in part in a separate opinion.

Gerard E. Lynch, Circuit Judge:

This appeal concerns the constitutionality of New York Penal Law ("NYPL") § 215.50(7) and its application to an individual protestor who wishes to promote the general concept of jury nullification outside New York courthouses. Under NYPL § 215.50(7), a person is guilty of criminal contempt in the second degree if, within a radius of 200 feet of a courthouse, he or she "calls aloud, shouts, holds or displays placards or signs containing written or printed matter, concerning the conduct of a trial being held in such courthouse."

In late 2017, Michael Picard, a self-described civil libertarian, stood on the sidewalk outside the Bronx County Hall of Justice holding a sign that read, "Jury Info" and handing out flyers to passersby directing them to "Google Jury Nullification." A New York State Court Officer told Picard to move and warned him that he would be arrested if he did not move at least 200 feet from the courthouse. Picard, however, refused to move. The officer then arrested Picard for violating NYPL § 215.50(7). A Bronx County Assistant District Attorney ultimately declined to prosecute Picard because the officer had not measured how far from the courthouse Picard was standing when he was arrested. Picard later filed suit in federal district court, pursuant to 42 U.S.C. § 1983, alleging that NYPL § 215.50(7) violated the First Amendment and seeking an injunction prohibiting its enforcement.

On July 29, 2020, the United States District Court for the Southern District of New York (Denise Cote, J. ) issued an order holding that NYPL § 215.50(7) violates the First Amendment of the United States Constitution and permanently enjoining the defendants from enforcing it. The present appeal followed. On appeal, the State argues that Picard lacked standing to challenge the statute. Alternatively, the State argues that, even if Picard had standing, the district court erred by permanently enjoining enforcement of the statute in all circumstances rather than only its enforcement against conduct like Picard's.

We hold that while Picard does have standing to challenge the constitutionality of the statute as applied to him, the district court erred in granting a broad injunction against the enforcement of the statute in all circumstances. We therefore VACATE the injunction and REMAND to the district court to enjoin the enforcement of NYPL § 215.50(7) only in the circumstances presented by Picard's conduct in this case.

BACKGROUND

Michael Picard is a self-described civil libertarian who advocates jury nullification as an "effective means to protest unjust laws." App'x at 29. Picard began publicly advocating jury nullification in early 2016 when he first started passing out pamphlets with information on jury nullification to passersby on public sidewalks outside courthouses in Connecticut and Massachusetts. Picard maintains that he has never "attempted to influence a juror's vote in a particular case" and that he does not "research which trials are occurring before visiting a courthouse to advocate jury nullification." App'x at 30.

On December 4, 2017, Picard stood on a public sidewalk outside the Bronx County Hall of Justice in New York near the main entrance of the courthouse. Picard held a sign that stated, "Jury Info." App'x at 30. Picard also held flyers that read "No Victim? No Crime. Google Jury Nullification" on one side and " ‘One has a moral responsibility to disobey unjust laws’ – Martin Luther King Jr." on the other side. App'x at 30. Picard distributed flyers to about four pedestrians. Picard claims that he was "not aware of any particular cases in which jurors were being impaneled or serving at the time" and that he did not "discuss any particular criminal proceedings with anyone." App'x at 30.

At around 8:05 AM, a New York State Court Officer approached Picard and told him that it was "against the law to distribute flyers about jury nullification within two hundred feet of a courthouse." App'x at 31. The officer also repeatedly asked Picard to move and told Picard that he would be arrested if he did not move at least two hundred feet away from the courthouse. Picard refused to move, arguing that he was standing on a public sidewalk and that he was allowed to advocate jury nullification by passing out the flyers. The officer then arrested Picard for violating NYPL § 215.50(7) and took him into custody. NYPL § 215.50(7) provides:

A person is guilty of criminal contempt in the second degree when he engages in any of the following conduct: ... On or along a public street or sidewalk within a radius of two hundred feet of any building established as a courthouse, he calls aloud, shouts, holds or displays placards or signs containing written or printed matter, concerning the conduct of a trial being held in such courthouse or the character of the court or jury engaged in such trial or calling for or demanding any specified action or determination by such court or jury in connection with such trial.

Picard was released from police custody at around 6:00PM that day. A Bronx County Assistant District Attorney declined to prosecute Picard for the alleged violation of NYPL § 215.50(7) because, according to the "Affidavit in Support of Declining/Deferring Prosecution," the arresting officer "did not measure the distance between [Picard] and the courthouse, [so] the People have insufficient evidence to meet their burden of proof at trial and as such, the charges must be dismissed." App'x at 40.

Picard claims that since his arrest, he has not promoted jury nullification within two hundred feet of a New York courthouse out of fear that he would again be arrested and possibly prosecuted for violating NYPL § 215.50(7). Absent his fear of NYPL § 215.50(7), Picard states, he would continue to promote jury nullification outside New York courthouses.

On April 5, 2019, Picard filed this action under 42 U.S.C. § 1983 against defendant-appellant Michael Magliano, the Chief of Public Safety for the New York Unified Court System, and defendant Darcel D. Clark, the District Attorney for Bronx County, in their official capacities. Picard sought declaratory and injunctive relief and asserted that NYPL § 215.50(7) is facially unconstitutional because "it imposes content-based restrictions on speech in a traditional public forum" and because it is "substantially overbroad" as it "encompasses a large amount of speech related to the judicial process that poses no threat to the due administration of justice." App'x at 14-15. Picard also alleged that NYPL § 215.50(7) violates the First Amendment as applied to his jury nullification advocacy.

Both defendants moved to dismiss the complaint, arguing that Picard lacked standing to challenge the statute and, with respect to Clark, that his complaint failed to state a claim. The district court denied those motions on December 2, 2019, concluding, as relevant to this appeal, that Picard had standing to challenge the constitutionality of NYPL § 215.50(7). Picard v. Clark , No. 19-cv-3059, 2019 WL 6498306, at *4 (S.D.N.Y. Dec. 2, 2019).

The district court then held a bench trial on the written record, with both parties filing written submissions. On July 29, 2020, the district court found in favor of Picard, holding that NYPL § 215.50(7) "violates the First Amendment of the U.S. Constitution because it is a content-based restriction on speech in a public forum that fails strict scrutiny." Picard v. Clark , 475 F. Supp. 3d 198, 208 (S.D.N.Y. 2020).

Neither party disputed that NYPL § 215.50(7) was "directed towards a compelling state interest," namely, "to protect the integrity of the judicial process by shielding trial participants, including jurors and witnesses, from undue influence during their engagement in trials," which "promotes the rule of law and the legitimate functioning of the justice system." Id. at 204. But the parties did dispute whether NYPL § 215.50(7) was narrowly tailored to serve that interest.

The defendants argued that NYPL § 215.50(7) was "narrowly drawn to restrict speech in the immediate vicinity of a state courthouse that is likely to disrupt or unduly influence a pending trial." Id. at 206. But the district court found that NYPL § 215.50(7) went beyond criminalizing expression that was likely to disrupt ongoing court proceedings, as the text of the statute itself did not "state that the prohibited expression must directly tend to interrupt court proceedings." Id. The district court further determined that the defendants failed to show that "the state must criminalize speech in this way to protect the integrity of ongoing trials" and that if speakers were "obstructing passage on the sidewalks or engaging with others in demonstrations," there were "content-neutral regulations to maintain public order and access to a public building" as well as criminal statutes designed to target those who ...