Women for Am. First v. De Blasio

• Decision Date: 18 February 2021
• Docket Number: 20 Civ. 5746 (LGS)
• Citation: 520 F.Supp.3d 532
• Parties: WOMEN FOR AMERICA FIRST, Plaintiff, v. Bill DE BLASIO, in his official capacity as the Mayor of New York City, New York, and Polly Trottenberg, Commissioner of the New York City Department of Transportation, Defendants.
• Court: U.S. District Court — Southern District of New York

520 F.Supp.3d 532

WOMEN FOR AMERICA FIRST, Plaintiff,

v.Bill DE BLASIO, in his official capacity as the Mayor of New York City, New York, and Polly Trottenberg, Commissioner of the New York City Department of Transportation, Defendants.

20 Civ. 5746 (LGS)

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

Signed February 18, 2021

Ronald David Coleman, Dhillon Law Group Inc., New York, NY, for Plaintiff.

Diana Marsh Murray, NYC Law Department, Office of the Corporation Counsel, Jeannine Brisard, New York City Law Department, New York, NY, for Defendants.

OPINION AND ORDER

LORNA G. SCHOFIELD, District Judge:

On July 28, 2020, Plaintiff Women For America First filed a Complaint alleging that Defendants’ denial of Plaintiff's request to paint a mural similar to New York City's eight "Black Lives Matter" murals deprived Plaintiff of its First Amendment rights in violation of 42 U.S.C. § 1983. Two motions are before the Court. First, Plaintiff seeks a preliminary injunction ordering Defendants to permit Plaintiff to paint its own mural, or in the alternative, enjoining Defendants from painting or maintaining any murals on New York City streets and requiring Defendants to paint over the eight "Black Lives Matter" murals within seven days of the Court's ruling. Second, Defendants move to dismiss the Complaint. For the reasons explained below, Plaintiff has standing only to seek a preliminary injunction ordering Defendants to permit Plaintiff to paint its own mural. Further, for the reasons explained below, the motion for preliminary injunction is denied and the motion to dismiss is granted.

I. BACKGROUND

A. The "Black Lives Matter" Murals

On June 14, 2020, Brooklyn-based artists painted a mural stating "Black Lives Matter" on Fulton Street in Brooklyn, New York. Here is an image of the Fulton Street mural:

The artists painted this mural without the government's knowledge, consent or participation. The Office of the New York City Mayor, Defendant Mayor Bill de Blasio, learned of the mural on June 15, 2020, and on the same day tweeted,

JUST IN: Fulton Street in Brooklyn will share the message that #BlackLivesMatter all summer long. We're making the block pedestrians-only and working with the MTA to coordinate nearby transit.

On June 19, 2020, the Black Lives Matter organization and members of the community painted a second "Black Lives Matter" mural on Richmond Terrace in Staten Island. The same day, the Mayor's office tweeted, "We'll paint a Black Lives Matter mural in every borough," and embedded a Tweet from Mayor de Blasio stating,

We're not just painting the words #BlackLivesMatter [ ] on streets across all five boroughs -- we're sending a message that these are our values in New York City.

NYC Mayor's Office, @NYCMayor, Twitter (June 19, 2020), https://twitter.com/NYCMayor/status/1274068537972273152?s=20. Six additional "Black Lives Matter" murals were then painted in locations including Joralemon Street, Brooklyn (painted on June 26, 2020); Centre Street, Manhattan (painted on July 2, 2020); Adam Clayton Powell, Jr. Boulevard, Harlem (painted on July 8, 2020); Fifth Avenue, Manhattan (painted on July 9, 2020); Morris Avenue, the Bronx (painted on July 15, 2020); and 153rd Street, Queens (painted on July 30, 2020). All eight murals (collectively, the "Murals") are painted on city roads open to traffic. The New York City government preserved the Murals and played a role in the creation of the six later murals. The Complaint alleges, for example, that the New York City Department of Transportation ("DOT") is responsible for the "Black Lives Matter" mural on Fifth Avenue, which cost approximately $6,000 in DOT funds.

Defendants have reiterated the government's interest in affirming the value of Black lives. In response to the media's questions about the Murals, Mayor de Blasio stated that the Black Lives Matter movement "transcends any notion of politics," and that "this is about something much bigger than any one group ..." In response to questions about whether Mayor de Blasio would approve a request to paint a "Blue Lives Matter" mural, a spokeswoman for City Hall spoke about the importance of the "Black Lives Matter" message, stating, "For all lives to matter, we must first make clear that [B]lack lives matter." This, she explained, "is why [the Mayor's office] approved the [M]urals and met those words with actions." Mayor de Blasio also distinguished between the "Blue Lives Matter" request and the Murals, stating,

The Original sin of the United States of America, slavery, and all of the effects over 400 years being brought out in the open in a new way and a chance for this country to get it right, to address this problem, to move forward, and it's summarized in three words ‘Black Lives Matter,’ so this is about something much bigger than any one group, this is about righting a wrong and moving us all forward.

B. Plaintiff's Application to Paint a Mural with a Different Message

On July 9, 2020, Plaintiff submitted an e-mail request to Mayor de Blasio to paint a mural stating, "Engaging, Inspiring and Empowering Women to Make a Difference!" Plaintiff sought to paint its mural on "Fifth Avenue, or another similar street within the city's jurisdiction," including suitable alternatives like the "FDR Drive outside Gracie's Mansion," or "on 42nd Street near Times Square, or even City Hall Park ..." Plaintiff did not receive a response. Plaintiff sent a second request via Federal Express, which the Mayor's office received on July 15, 2020. On August 17, 2020, the DOT denied Plaintiff's second request. The DOT stated that it "does not permit installations on City roadways that are open to traffic."

New York City does not generally permit private citizens to paint on streets open to traffic. Under Local Law § 10-117(a),

No person shall write, paint or draw any inscription , figure or mark of any type on any public or private building or other structure or any other real or personal property owned , operated or maintained by a public benefit corporation, the City of New York or any agency or instrumentality thereof or by any person, firm, or corporation, or any personal property maintained on a city street or other city-owned property pursuant to a franchise concession or revocable consent granted by the city, unless the express permission of the owner or operator of the property has been obtained.

Id. (emphasis added). The Complaint alleges that there is no application process for painting murals or other non-traffic-related messages on New York City streets. Plaintiff references the New York City Charter, which vests authority in an Art Commission to make decisions with respect to "works of art," including murals. N.Y.C. Charter, Ch. 37, §§ 851(a), 854(a). According to the New York City Charter,

No work of art shall hereafter become the property of the city by gift or otherwise, or be purchased, commissioned, contracted for, accepted, erected ... or be placed on or extend into or over any public street, avenue, [or] highway ... belonging to the city, unless such work of art or a design of the same, accompanied by a specification and an estimate of the cost thereof, a plan showing its proposed location, and, if the commission deems it necessary or desirable, also a model, and any other pertinent information as may be required by the commission including a plan in such detail as the commission may require for the maintenance or conservation thereof, shall first have been submitted to the commission by the agency having jurisdiction, and such work of art or the design thereof, its location, and the plan for its maintenance or conservation, shall have been approved in writing by the commission.

Id. at Ch. 37, § 854(d) (emphasis added).

II. STANDING

A. Legal Standard

Plaintiff has standing to bring its First Amendment claim and related request for a preliminary injunction ordering Defendants to permit Plaintiff to paint its own mural; Plaintiff does not, however, have standing to seek a preliminary injunction prohibiting Defendants from painting or maintaining any murals on New York City streets because this remedy would not redress Plaintiff's alleged injury. Although Defendant does not dispute Plaintiff's standing, "the court has an independent obligation to assure that standing exists, regardless of whether it is challenged by any of the parties." Summers v. Earth Island Inst. , 555 U.S. 488, 499, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009) ; see also Coal. for Competitive Elec., Dynergy Inc. v. Zibelman , 906 F.3d 41, 58 (2d Cir. 2018), cert. denied sub nom. Elec. Power Supply Ass'n v. Rhodes , ––– U.S. ––––, 139 S. Ct. 1547, 1547, 203 L.Ed.2d 712 (2019).

To establish standing, the plaintiff "must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision." Moya v. United States Dep't of Homeland Sec. , 975 F.3d 120, 129 (2d Cir. 2020) (quoting Spokeo, Inc. v. Robins , 578 U.S. 330, 136 S. Ct. 1540, 1547, 194 L.Ed.2d 635 (2016), as revised (May 24, 2016)). "Each element of standing must be supported ... with the manner and degree of evidence required at the successive stages of the litigation." Sonterra Capital Master Fund Ltd. v. UBS AG , 954 F.3d 529, 534 (2d Cir. 2020) (internal quotation marks omitted). To demonstrate standing for injunctive relief, a plaintiff "cannot rely solely on past injuries; rather, the plaintiff must establish how he or she will be injured prospectively and that the injury would be prevented by the equitable relief sought." Marcavage v. City of New York , 689 F.3d 98, 103 (2d Cir. 2012) ; accord Liberian Cmty. Ass'n of Conn. v. Lamont , 970 F.3d 174, 184 (2d Cir. 2020). An organization has "standing in its own right to seek judicial relief from injury to itself," Warth v. Seldin , 422 U.S. 490, 511, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975), where the organization "meet[s] the same standing test that...