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YOUTH INTL. PARTY v. MCGUIRE

October 6, 1983

YOUTH INTERNATIONAL PARTY, Plaintiff,
v.
Hon. Robert J. McGUIRE, Police Commissioner, City of New York, Defendant



The opinion of the court was delivered by: KRAM

MEMORANDUM DECISION AND ORDER

 KRAM, District Judge.

 The above-captioned case came before this Court upon the motion of plaintiff Youth International Party ("YIP") for a preliminary injunction. For the reasons stated below, this Court finds that determination of the issues raised herein should properly be left to the city courts; therefore, plaintiff's motion is denied and this action is dismissed in part and stayed in part.

 BACKGROUND

 YIP is an unincorporated political party which is engaged in disseminating information and materials designed to focus the recipients' attention on particular contemporary political and social issues. For example, YIP is currently disseminating information and materials urging the decriminalization of marijuana use as well as materials in opposition to the registration requirement of 50 U.S.C. App. § 453. One item YIP has distributed in connection with its efforts regarding the registration requirements is a T-shirt embossed with the slogan "Resist Now More Than Ever" around a colorful design.

 On July 26, 1983, members of YIP set up a table from which to disseminate materials along the sidewalk adjacent to 333 Sixth Avenue, south of West Fourth Street. The table was located approximately twenty yards from a small park containing basketball courts. The park, although small, is a popular gathering spot. YIP chose this location to be able to reach a large number of people. The members of YIP distributed materials from that table, seeking contributions or donations for some of the materials disseminated (including the T-shirts described above).

 On that evening, while the members of YIP were at this table, they were approached by three police officers: apparently one officer arrived on foot and the other two responded to the first's radio call by patrol car. These officers asked the members of YIP whether they had obtained a permit from the Supervisor of the Parks Department. The YIP members indicated that no prior approval was required under the Constitution and under Administrative Law Judge Sol. H. Sleppin's decision dismissing a similar summons in City of New York v. Boyd, No. 016-994-405, slip op. (Environmental Control Board September 18, 1981). *fn1" Thereupon, the officers issued a summons for "Reading paraphaniala [sic] and T-shirts without license, tax, etc." (Exhibit C to Order to Show Cause dated August 4, 1983). *fn2" The officers also issued three summonses for assorted alleged violations of vehicles and traffic laws (e.g., expired meter) (Exhibits E, F, and G to Order to Show Cause dated August 4, 1983.

 On August 3, 1983, members of YIP apparently returned to this location on Sixth Avenue. On this date, the members again were issued summonses. This time the criminal summonses issued included: "Exibiting [sic] sign to solicit"; "Fund Raising No Park Permit"; and "Obstructing Ped. Traffic" (Exhibits F, G, and H to Complaint).

 YIP apparently has not returned to this location since receiving the summonses discussed above. The enforcement of those summonses, or at least the summons relating to the distribution of reading paraphernalia and T-shirts, is still pending before an administrative law judge.

 DISCUSSION

 YIP commenced this action against Robert J. McGuire, Police Commissioner of the City of New York, on August 4, 1983. The complaint sets out the facts outlined above and alleges that the police officers' acts deprive YIP, and its members, of its constitutional rights. YIP asserts that the subject matter jurisdictional requirements are met in this case pursuant to "The First, Fifth and Fourteenth Amendments . . . 28 U.S.C. 1331, 1332 [sic], *fn3" 1341, 1651 and 2201 and . . . 42 U.S.C. 1981, et seq." (Complaint, § 3). The relief plaintiff seeks is as follows:

 
A. A temporary restraining order directing defendant to prevent all of his agents, servants and employees from interfering with or otherwise impeding the exercise by plaintiff and its members, associates and supporters of their First Amendment rights.
 
B. A preliminary and permanent injunction preventing defendant, his agents, servants and employees from interfering with or otherwise impeding the exercise by plaintiff and its members, associates and supporters of their First Amendment rights.
 
C. A declaratory judgment declaring that it is constitutionally impermissible for defendant, his agents, servants and employees to interfere with or otherwise impede the exercise by plaintiff and its members, associates and supporters of their First Amendment rights.
 
D. Compensatory damages in an amount yet undetermined . . . .

 (Complaint, p. 6).

 This Court denied plaintiff's request for a temporary restraining order in its Order to Show Cause dated August 4, 1983. YIP moved for a preliminary ...


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