The opinion of the court was delivered by: MOTLEY
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Plaintiffs are the International Society for Krishna Consciousness, Inc. ("ISKCON"), and two of its individual members. Plaintiffs have brought this action individually and on behalf of all members of ISKCON against the defendant City of New York and its Police Commissioner, defendant Robert McGuire. Plaintiffs allege that their rights under the First and Fourteenth Amendments to the United States Constitution have been violated and seek declaratory and injunctive relief. Jurisdiction of this court is invoked under 28 U.S.C. §§ 1331, 1343(3) & 1343(4).
For the reasons set forth in the court's findings of fact and conclusions of law dated December 4, 1980, the court denied plaintiffs' motion for a preliminary injunction. The matter is now before the court following a bench trial on the merits. Pursuant to the agreement of the parties, the evidence received during the court's preliminary injunction hearing of May 3 and 8, 1979, was made part of the trial record.
Plaintiff's complaint requests the following relief:
(A declaration) that the policy of the City of New York, as executed and enforced by the New York City Police Department, of prohibiting plaintiffs from performing Sankirtan, a protected First Amendment activity, on the sidewalks of New York City between 42nd and 48th Streets on the east side of First Avenue, abridges plaintiffs' free exercise of religion and freedoms of speech and association, all in violation of the First and Fourteenth Amendments to the United States Constitution and of 42 U.S.C. § 1983.
(An order enjoining) defendants and their respective agents, servants and employees from prohibiting or attempting to prohibit plaintiffs from performing Sankirtan on the sidewalks of New York City between 42 and 48th Streets on the east side of First Avenue, or participating or causing in any way plaintiffs' arrest on any charge when plaintiffs are so exercising or attempting to exercise their rights.
Thus, the narrow issue before this court is whether plaintiffs' constitutional rights are violated by a policy of the New York City Police Department which bars plaintiffs from proselytizing and soliciting funds on the sidewalks of New York City between 42nd and 48th Streets on the east side of First Avenue.
ISKCON is a religious society. The proselytizing and soliciting of funds in which plaintiffs wish to engage is part of a religious ritual known to plaintiffs as Sankirtan. Sankirtan is mandated by the Vedic Scriptures, ISKCON's basic religious text.
Plaintiffs seek access to perform Sankirtan on the sidewalks on the east side of First Avenue, adjacent to the United Nations ("U.N."). The U.N. holds title to the area in New York City in which its Headquarters is located-the area between 42nd Street on the south, 48th Street on the north, Franklin D. Roosevelt Drive on the east, and the east side of First Avenue on the west. The City of New York owns the sidewalk in front of the U.N. Headquarters on the east side of First Avenue between 42nd and 48th Streets. The east side of First Avenue is now open to pedestrian traffic. While this area was originally deeded by the New York State Legislature to the U.N., the U.N. subsequently transferred the east side of First Avenue back to the City of New York for security reasons.
The New York City police do not have jurisdiction to arrest persons on any property to which the U.N. holds title. The above described property to which the U.N. holds title is located behind a readily scalable fence bordering the easternmost border of the sidewalk on the east side of First Avenue between 42nd and 48th Streets. The property to which the U.N. holds title is under the jurisdiction of the U.N. and is patrolled by U.N. security guards.
The New York City Police Department has been designated as the proper governmental authority to guarantee the peace and tranquility of the U.N. Headquarters. In order to carry out this responsibility, the New York City Police Department has decided, among other things, to ban all First Amendment activity on the east side of First Avenue between 42nd and 48th Streets, thus creating a buffer zone between the U.N. Headquarters and possible security risks. The east side of First Avenue, as well as the adjacent area to the west-the west side of First Avenue between 42nd and 48th Streets between First and Second Avenues-is specially patrolled by the City of New York, pursuant to the "Agreement between the United Nations and the United States of America regarding the Headquarters of the United Nations," 22 U.S.C.A. § 287, historical note § 16 ("U.N. Agreement").
Accordingly, the New York City Police Department has also designated six areas recommended for demonstrations and picketing within the area bounded by the west side of First Avenue between 42nd and 48th Streets and Second Avenue.
The New York City Police Department has agreed to allow plaintiffs to exercise their First Amendment rights at any place in the area except the east side of First Avenue and directly in front of the United States Mission to the U.N. on the southwest corner of 45th Street and First Avenue.
The U.N. Visitors' Gate is located on the east side of First Avenue between 45th and 46th Streets. While plaintiffs seek access to the entire east side of First Avenue between 42nd and 48th Streets, the dispute in this case has focused primarily on the small area immediately adjacent to the U.N. Visitors' Gate.
Lieutenant John J. Judge, an operations officer for the New York City Police Department responsible for regulating demonstrations and other forms of First Amendment activity in the proximity of the U.N., testified that the Police Department would not have any objection to the plaintiffs performing Sankirtan on any of the cross streets in the area-43rd, 44th, 45th, 46th, and 47th Streets between First and Second Avenues-except in front of the United States Mission. (Tr. 202-03).
Lieutenant Judge testified that demonstrations and other First Amendment activity is allowed on the west side of First Avenue as well. (Tr. 214). Thus, Lieutenant Judge testified that plaintiffs could go any place they would wish without objection by the Police Department, except the sidewalk on the east side of First Avenue between 42nd and 48th Streets, and in front of the United States Mission. (Tr. 206-07).
Lieutenant Judge testified that the sole reason for the ban on the east side of First Avenue was the peace and security of the U.N. More specifically, he testified that the ban was imposed to prevent crowd formations on the east side of First Avenue which might heighten the security risks to the U.N. and thus interfere with the peace and tranquility of the U.N. Headquarters.
The court finds that crowd formation is a serious problem in the immediate vicinity of the Visitors' Gate and on the east side of First Avenue and that crowd formation heightens the security risks. The court also finds that the practice of Sankirtan in the vicinity of the Visitors' Gate and on the east side of First Avenue tends to obstruct the flow of traffic.
The Visitors' Gate is the sole entry and exit point to the U.N. for many thousands of visitors each day. Although there is a separate entrance between 42nd and 43rd Streets for U.N. delegates and other personnel, such U.N. personnel also enter the U.N. Headquarters through the Visitors' Gate. (Tr. 99). On an average day, at least 3,000 visitors arrive at the Visitors' ...