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OLIVIERI v. WARD

June 16, 1986

MICHAEL J. OLIVIERI, J. MATTHEW FOREMAN, MICHAEL DILLINGER, TOM KOHLER, RICHARD FERRARA, EDMUND W. TRUST, HUGH R. BRUCE, JOHN D. EDWARDS, JOSEPH BROWN, JULIUS J. SPOHN, BERNARD L. TANSEY, CLINT WINANT, DAVID LAWLOR, JIM CANNON, JAMES DOYLE, NED LYNAM, EDWARD BYRNE, MICHAEL CONLEY EDWARD HARBUR, ROBERT J. BUEL, CHRISTOPHER WESOLOWSKI, GARY W. SPOKES and DIGNITY-NEW YORK, Plaintiffs, against BENJAMIN WARD, in his official capacity as Police Commissioner of the City of New York, EDWARD I. KOCH, in his official capacity as the Mayor of the City of New York, and the NEW YORK CITY POLICE DEPARTMENT, Defendants.


The opinion of the court was delivered by: MOTLEY

MOTLEY, Ch. J.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

 Plaintiffs, Dignity-New York, which is an organization of gay Roman Catholics, and several of its individual members, seek to enjoin defendants on constitutional and statutory grounds from prohibiting them from demonstrating on the public sidewalk in front of St. Patrick's Roman Catholic Cathedral in New York City during the annual Gay Pride Parade this year. Plaintiffs' previous application in this case for preliminary relief of an identical nature with respect to the 1985 Parade, on which this court held a hearing of several days last year, was granted by the court on June 13, 1985. Olivieri v. Ward, 613 F. Supp. 616 (S.D.N.Y. 1985). Subsequently, but prior to the actual date of the 1985 Gay Pride Parade, the Second Circuit reversed this court's order, finding that plaintiffs had failed to satisfy the necessary requirements for the exceptional remedy of preliminary injunctive relief. Olivieri v. Ward, 766 F.2d 690 (2d Cir. 1985).

 Several months after the Second Circuit handed down its decision on the preliminary injunction motion, plaintiffs amended their complaint to seek a permanent injunction and declaratory relief against the police ban on Dignity's use of the St. Patrick's sidewalk during the June 1986 Gay Pride Parade and all Gay Pride Parades thereafter. From May 12 to May 21, 1986 a trial on the merits of plaintiffs' claim was held before this court. *fn1" In the course of this trial and its post-trial marshalling of the evidence, the court has observed that the great majority of facts in this case are undisputed. Indeed, many of them have been formally so denominated by the parties in the pre-trial order in this case. Other essentially undisputed facts revealed in the testimony and exhibits offered into evidence in this case have been submitted by both plaintiffs and defendants alike in their proposed findings of fact for the court. The crucial factual issues in this case are, of course, disputed. These, however, involve the factual inferences -- regarding such things as motivation and reasonableness -- to be drawn from the largely undisputed objective facts in the controversy. Accordingly, the court now makes the following findings of fact and conclusions of law.

 FINDINGS OF FACT

 Plaintiffs are Dignity-New York and several of its members. (Undisputed Facts #1.) Dignity-New York is the local chapter of an international organization of gay and lesbian Roman Catholics, (Undisputed Facts, #2; Tr. 604), whose 320 person local membership includes lay people as well as current and former priests, seminarians, and religious brothers. (Tr. 604.) Defendants in this case are the New York City Police Department, Police Commissioner Benjamin Ward and Mayor Edward I. Koch.

 A brief overview of the witnesses testifying during the trial in this case will be helpful in following the court's extensive factual findings, as well as in giving an overview of the major players in the controversy. J. Matthew Foreman and Timothy Coughlin are both members of Dignity and also both serve on its Board of Directors. (Tr. 4, 602-03.) Both individuals have participated at past Gay Pride Parades. Foreman is also active in the organization of the Gay Pride Parade generally, serving as a member of the Board of Directors of Heritage of Pride, Inc., (the official organizers of the annual June celebration), and is co-coordinator of the Gay Pride Parade for 1986 and 1987. (Tr. 3-4.)

 The other witnesses in this case include various officials in the New York City Police Department, as well as the organizers of the main anti-gay counterdemonstration group, and a Catholic Church official. Gerard J. Kerins is an Assistant Chief of Police of the City of New York. Since February 1984, Kerins has been the commanding officer of Patrol Borough, Manhattan South, which encompasses all of Manhattan south of 59th Street and includes St. Patrick's Cathedral. Chief Kerins has responsibility, among other things, for police operations in connection with parades, demonstrations and special events occurring within Manhattan Borough South, including the Gay Pride Parade. (Undisputed Facts ##7, 8, 9; Tr. 333, 446.) Chief Kerins was the successor to Assistant Chief of Police Milton Schwartz who served as commanding officer of Manhattan Borough South from October 1979 to July, 1983. (Tr. 892-93.)

 The lesser ranking police personnel called upon to testify were Lieutenant David Tarantino, Lieutenant Joseph Congelosi, and Captain Louis Anemone. Lt. Tarantino is currently assigned to the Manhattan Borough South police unit and served from 1981 to May 1985 as commanding officer of the operations unit where his responsibilities included police staffing and planning for parades and demonstrations. (Undisputed Facts #10.) As head of the operations unit during this time, Lt. Tarantino was responsible for intelligence gathering with regard to potential problems at the Gay Pride Parade, and was present at all Gay Pride Parades from 1981 to 1984. (Undisputed Facts ##52, 58; Tr. 133.) Lt. Congelosi succeeded Tarantino as commanding officer of the Manhattan Borough South operations unit in May 1985 and currently continues in this position. Prior to 1985 Congelosi was assigned to the same unit as a sergeant. (Undisputed Facts, #11; Tr. 236-37.) In these capacities Congelosi has been present at Gay Pride Parades since 1983. Finally, Captain Anemone of the Manhattan Borough North police unit, who handled police security at an October 1985 demonstration by members of the Catholic Church protesting the showing of an allegedly sacrilegious film, testified with regard to that demonstration and its repercussions on the 1986 Gay Pride Parade. (Tr. 644-61.)

 Witness Andrew McCauley, a private citizen residing in the St. Patrick's Cathedral neighborhood (Tr. 502.), is a founder and vice president of the Committee for the Defense of St. Patrick's, a group that has organized counterdemonstrations at past Gay Pride Parades, and which is active as well in the organizing effort for this year's Gay Pride Parade counterdemonstration. (Undisputed Facts #34; Tr. 506, 514, 528, 538-39.) Herbert McKay is President and co-founder with Mr. McCauley of the Committee for the Defense of St. Patrick's. (Undisputed Facts #33; Tr. 502.)

 The final key witness in this case was Monsignor James F. Rigney. Msgr. Rigney has been Rector of St. Patrick's Cathedral since 1970, and as such is responsible for the care and general operation of the building. In particular, Rigney represents the Church in public dealings regarding the Gay Pride Parade as it affects the Cathedral. (Undisputed Facts #28; Tr. 48).

 The First Amendment controversy presented by this lawsuit has as its backdrop the Gay Pride Parade which has occurred annually in New York City since 1970 on the last Sunday in June. (Undisputed Facts # 12, 14.) This year's Parade, for which a police permit has already been granted, (Undisputed Facts #102), is scheduled to occur on June 29, 1986. (Undisputed Facts #101.) The Gay Pride Parade gives expression to the political, social, and religious views of the gay community and functions as well simply as a celebration of gay pride. (Undisputed Facts #16.) Since at least 1976 the Parade route has followed Fifth Avenue south from Central Park to Greenwich Village, passing on its way in front of St. Patrick's Cathedral, which is located on the east side of Fifth Avenue between 51st and 50th Streets. (Undisputed Facts # 19, 21.) For the 1986 Parade, the Police Department expects about 20,000 marchers. (Tr. 334.) The Parade, besides its individual marchers, is comprised of many different gay groups from the region. Dignity participates as one such component of the Parade. (See Plaintiffs' Exhibits (hereinafter "PX") 184, 187, 189, 194, 195, 197, 202.)

 During Gay Pride Parades from 1976 to 1982, the general public, as well as members of Dignity, and other individuals and groups participating in the parade, had access to the public sidewalk and Church owned steps in front of the Cathedral. (Undisputed Facts #41, 45, 53; Tr. 898-99.) The Cathedral is the seat of the Roman Catholic Archdiocese of New York (Undisputed Facts #22), and to many persons, including both members of Dignity and opponents of the Gay Pride Parade, it functions as a special symbol of the American Catholic Church.

 In the pre-1983 period when the Church sidewalk and steps were open to the public, Dignity members conducted prayer services, sang hymns and engaged in other peaceful activities there. (Undisputed Facts ## 41, 45, 53.) Dignity has always been completely peaceful and nonviolent. (Tr. 5-6; 51, 123; 231; 355; see also Defendants' First Amended Answer, Para. 17(d), 17(e); PX 1, pp. 43-46; 56-58.) The police do not now believe that Dignity would do anything to harm the Cathedral. (Tr. 360.)

 By demonstrating on the sidewalk area fronting the Cathedral as the Parade passed by, Dignity sought to convey symbolically its love for the Church and its members' sense of themselves as integral parts of the Church's spiritual body. Dignity sought to communicate its belief that, notwithstanding the opposition of the institutional Church and its officials, Catholic gays need not choose between their homosexuality and their religion. Dignity also wished to convey its conviction that God's love and understanding extends to all people, regardless of their sexual orientation, and regardless of the official position of the Roman Catholic hierarchy. Underlying Dignity's wish to position itself in the area before the facade of the Cathedral, is the group's theological position that the Church is the people of God, rather than its mere institutions, buildings and leaders. (Tr. 605-09; 14-15). The audience Dignity Is trying to reach includes all other marchers in the Parade, especially Catholic or ex-Catholic ones, as well as Parade spectators in the Cathedral area. (Tr. 605-06.).

 In those years prior to 1983 when Dignity was allowed on the sidewalk and steps of the Cathedral during the parade, there were no problems or confrontations between Dignity members, or other gay demonstrators, and people entering or leaving the Cathedral. (Tr. 50; Undisputed Facts #42.) As to the progress of the Parade, itself, Dignity's presence on the sidewalk interferes in no way. (Tr. 474.) Indeed, Dignity's presence on the sidewalk in front of the Cathedral actually helps keep the Parade moving along, since the marchers, being sympathetic to Dignity generally, are less inclined to stop in front of the Cathedral to express their hostile sentiments while Dignity is there. Since Dignity was barred from this sidewalk area in 1983, it has been harder to keep the parade moving along and without gaps. (Tr. 11-13.)

 Of the other pro-gay groups and individuals demonstrating on the steps and sidewalk in front of St. Patrick's in the years prior to 1983, as well as marching past it, several were openly hostile to the Catholic Church and its teachings. Expressions of this hostility took the form, among other things, of satirical chants placing into question the sexual orientation of prominent Church hierarchy, and costumed figures mocking nuns, the Bible, and the crucifixion. (Tr. 506-07, 511, 517-18, 565, 581, 584, 595.) During at least one parade, the North American Man-Boy Love Association, a group that advocates pedophilia and is thus, not surprisingly, particularly disturbing to opponents of homosexuality, distributed leaflets on the sidewalk in front of the Cathedral. (Tr. 509, 513, 564, 572.) Officials and parishioners of St. Patricks were generally not pleased with the presence of pro-gay groups, including Dignity, in front of the Cathedral during the Parade. (Tr. 122-23, 125-26.) However, although the Church would have been within its rights to request that the church steps, as private property, be kept clear, it refrained from making any such official request because of its fear of the bad publicity that might result. (Tr. 75, 109.)

 Since 1983 Dignity has unsuccessfully requested that the City allow it, specifically, to hold a demonstration on the sidewalk during the Parade. Dignity's application to use the Cathedral sidewalk during the 1986 Parade has the endorsement of the Parade's organizers, Heritage of Pride, Inc., who have made their support official through a resolution of the Board of Directors. (Tr. 12; PX 202.)

 Beginning in 1983, the Police Department barred all access to the steps and sidewalk of St. Patrick's Cathedral during the Gay Pride Parade. This so-called "freeze" applies to demonstrators, counterdemonstrators, and pedestrians alike. The initial 1983 decision to freeze the sidewalk was taken by then Assistant Chief Schwartz, as a reaction to the newly organized counterdemonstrators from the Committee in Defense of St. Patrick's, with whom the Department had met, and from whom the police allegedly feared violence. (Tr. 895-96, 924, 935-36.) This freezing policy has continued to the present for each Gay Pride Parade.

 Gay Pride Parades from 1983 to 1986

 The crux of defendants' purported justification in this case for closing, or "freezing," the St. Patrick's sidewalk during Gay Pride Parades, is the potential for violence by anti-gay counterdemonstrators. Since at least the 1981 Parade, a varying number of persons who opposed the Parade and who have at times conducted counterdemonstrations, have been present in the vicinity of St. Patrick's Cathedral. (Undisputed Facts #30.) Recognizable counterdemonstrators have, however, never numbered many more than a hundred or so. (See infra.) Counterdemonstration organizers contend that individual members of the following groups, among others, have appeared at various Gay Pride Parades in the past: the Knights of Columbus, the Ancient Order of Hibernians, the Holy Name Society, the Catholic War Veterans, a group of Orthodox Jews, and a group known as the "Baysiders," famous for their devotion to the Rosary. (Undisputed Facts #32; Tr. 525, 547-48.) These organizations are established groups in the community and have no history or agenda of violence. (Tr. 181, 199.) Many of the Catholic counterdemonstrators treasure the Cathedral as a symbol of their Catholic faith, and view the presence of self-acknowledged gays on its steps and sidewalk to be a "desecration." Accordingly, they oppose Dignity's, as well as other gay groups', presence in the area immediately fronting the church during the Parade. (Undisputed Facts #107, 110, 111, 113; Tr. 454-55, 476, 508-09, 518-19, 566.) Indeed, a major objective of some of the counterdemonstrators is to keep Dignity and other gay groups off the steps and sidewalk of the Cathedral during the Gay Pride Parade. (Undisputed Facts, # 109; Tr. 413; 567-568).

 Two of the main representatives of the Gay Pride Parade counterdemonstrators, generally, have been Andrew McCauley and Herbert McKay, who together in 1982 formed the Committee for the Defense of St. Patrick's. (Undisputed Facts ##36, 39, Tr. 367-68, 502.) The sole activity of the Committee is to encourage and organize counterdemonstrations at the Gay Pride Parade in St. Patrick's vicinity. (Tr. 345, 506-08.) The Committee has four officers, including Mr. McKay who is President, and Mr. McCauley, who is Vice President. (Undisputed facts ##33, 34, 37). Its letterhead lists an approximately 30-member Advisory Board, (PX 37), most of whom, however, have never played any active role in the Committee's activities, much less participated as counterdemonstrators at St. Patrick's. (Tr. 505.) In fact, the basic function of the Advisory Board, most of whom Mr. McCauley conceded he has not spoken to "in years," is to have its members' names appear on the Committee letterhead. (Tr. 504-05.)

 The Committee for the Defense of St. Patrick's traces its origins to the 1980 Gay Pride Parade, reports of which provoked Mr. McCauley's interest and ire. (Tr. 506-07.) Observing it himself in 1981 and 1982 and thereafter, McCauley was especially outraged by the graphic irreverence and "Catholic-baiting" he perceived in such behavior as chants implying the Pope was gay, trash cans labelled "Bible depositories," and someone dressed as a nun with a pig's face and wearing a badge saying "child molester." (Tr. 506-07, 517.) McCauley was also particularly upset by the fact that the gay demonstrators had staked themselves out on the steps of the Cathedral, the physical property of the Church. (Tr. 511.) To prevent such "desecrations" and "attacks" on the Cathedral during future Gay Pride Parades, and to safeguard it from being used to 12 glorify sexual depravity and perversion," or as a stage for sacrilege" and "blasphemy," McCauley together with his friend McKay, eventually formed the Committee for the Defense of St. Patrick's. (Undisputed Facts #35; Tr. 506-08; 562-68.)

 While the most violent reactions of McCauley and McKay (and the ones that came up initially and most repeatedly in their testimony) were to the dramatically anti-Catholic histrionics of the non-Dignity demonstrators, (See Tr. 508-11, 513, 517-18), they also find Dignity itself particularly disturbing, and consider its invocation of Catholic symbols and traditions to be "sacrilegious." (Tr. 512, 567-70, 572-73.) Moreover, while the main focus of the Committee has been on the steps of the Cathedral, i.e., to prevent the "takeover of Cathedral property," (Tr. 511), the Committee clearly objects to the presence of Dignity and other gay groups on the Cathedral sidewalk. (Tr. 511-513.) In fact, keeping dignity and other gay groups off the sidewalk is one of the group's main purposes, and as long as Dignity or other such groups are not there, the Committee, itself, has no interest in demonstrating on the Cathedral sidewalk. (Tr. 519-20, 573-75, 578, 413.)

 Again this year the police intend to freeze the sidewalk in front of St. Patrick's to all persons, including plaintiffs, during the Parade. The Police Department believes that the mere physical presence of Dignity on the sidewalk in front of the Cathedral would be construed by some as a symbolic desecration of the Cathedral and would thus increase the possibility of violence from counterdemonstrators. (Tr. 363-64, 366-67, 373, 376, 413, 454-55; 895-96, 901, 935.)

 The sole issue before the court is whether the aforementioned police freeze, as applied to Dignity during the 1986 Parade, can pass constitutional muster. This determination, however, depends largely on the credibility and reasonableness of putative police fears of violence should Dignity be granted access to the sidewalk this year. In order to assess the credibility and reasonableness of these concerns it is useful to survey the history of the Parade, particularly as regards counterdemonstration activity, but also as it may shed light on any other police motivations in instituting the freeze.

 In 1981, as in previous years, the sidewalk and the steps in front of St. Patrick's Cathedral were left open to all demonstrators, including Dignity, for the duration of the Gay Pride Parade. (Undisputed Facts ##40, 41, 45; Tr. 898-99.) The police designated no separate areas for counterdemonstrators and, in fact, there were no organized counterdemonstration groups at the 1981 Parade. (Undisputed Facts ##46, 47.) During that Parade, however, two minor incidents occurred which were targeted at the use of the Cathedral steps by gay demonstrators. (Undisputed Facts #48; Tr. 350, 135.)

 Andrew McCauley was arrested on the steps of the Cathedral for striking the Parade's Grand Marshal as he attempted to lay flowers on the Cathedral steps. Neither Parade participants nor Dignity members incited this incident. McCauley was removed from the steps, held until the Parade ended, and was then issued a summons and released. (Undisputed Facts #49.) McCauley, who is a middle-aged man, reported that he did not like getting arrested and that he intended in his future counterdemonstrating activities to avoid such scrapes. (Tr. 531.)

 Herbert McKay was also arrested during the 1981 Parade for interfering with marchers who were having their Picture taken on the steps of the Cathedral with a Dignity banner. Again, neither Parade participants nor Dignity members incited this incident. McKay was removed from the steps by the police, held until the Parade was over, and then issued a summons and released. (Undisputed Facts #50.)

 In 1982, despite the two incidents at the 1981 Parade, Dignity along with other demonstrators again had access to the sidewalk and steps in front of St. Patrick's Cathedral. (Undisputed Facts #53; Tr. 898-99.) Moreover, within the Police Department prior to the 1982 Parade there had been no discussion about whether to restrict demonstrators' access to the sidewalk or steps. Approximately 50 police officers were assigned to the Cathedral area. (Undisputed facts ## 54, 55.) Apart from barriers abutting the east side of Fifth Avenue to separate the sidewalk from the line of march, no special barriers were placed along the sidewalk or steps fronting the Cathedral. (PX 56.)

 According to the police estimate, only about 50 counterdemonstrators attended the 1982 Parade. (PX 1, p. 140 (Kerins affidavit, para. 16.) Although both McCauley and McKay were present that year, the Parade saw no incidents of violence. (Undisputed Facts #56; PX 56; Tr. 582-83, 530-32.)

 The year 1983 is, of course, of special interest in this case as the year of the initial police decision to freeze the St. Patrick's sidewalk during the Gay Pride Parade. (Undisputed Facts #65; Tr. 901.) The freeze prevented Dignity from assembling as it wished on the steps and sidewalk in front of the Cathedral to conduct a peaceful religious service. (Undisputed Facts #64.) The basis for then Assistant Chief Schwartz's decision was the potential for violence between pro-gay demonstrators, including Dignity, and "anti-marchers" such as the Catholic War Veterans. (Undisputed Facts #66; Tr. 349, 901-02.) The Police Department's alleged concern for violence was also significantly informed by its anticipation of the possibly very large numbers of counterdemonstrators (Tr. 139; 897-98, 902) that had been indicated to the police by counterdemonstration organizers.

 Specifically, Assistant Chief Schwartz, the then commanding officer of the area, and Lt. Tarantino had held an apparently routine meeting at the counterdemonstrators' request with McCauley and McKay, among others, in Spring of 1983 to discuss counterdemonstration plans for that year's Gay Pride Parade. (Undisputed Facts #72; Tr. 930, 933; 137-38.) At that meeting, according to police testimony, either McKay or McCauley had indicated their expectation that 25,000 counterdemonstrators would show up at the Parade. (Tr. 138; PX 1, pp 197-210.) According to McCauley, however, he had only told police that because this was his first year of organizing, he was quite unsure about the crowd he could attract and thus was reluctant to give the Police any estimate of how many counterdemonstrators there might be. Later, in a telephone conversation, McCauley reported, he reluctantly proffered the number 1,000, but only when police insisted. (Tr. 522-23.)

 Prior to the 1983 Parade a second significant police planning meeting took place. In years prior to 1983, St. Patrick's Cathedral officials were always attentive to the Gay Pride Parade and to the fact that pro-gay demonstrators were occupying the sidewalk and the steps of the church. (Tr. 49-50, 62.) Though church members had registered complaints from time to time -- for example, Msgr. Rigney, the Rector of the Cathedral, had had several meetings with Mr. McKay, during one of which McKay, accompanied by a police department acquaintance, had expressed his wish that the Church take a less passive posture toward the gay marchers (Tr. 57-58) -- church officials had decided not to take any controversial public action. As indicated by internal church memos, however, the 1983 police plan to freeze the St. Patrick's sidewalk was warmly received, (Tr. 68-70, 74-77; PX 124) and not entirely unanticipated.

 The cooperative relationship which existed and had existed before is suggested by a memo sent by Rigney to the Cardinal describing a secret meeting he had had with Assistant Chief Schwartz and several other police officers to discuss the 1983 Parade. Of this meeting Rigney reported to the Cardinal,

 They are emphatic that this is a police plan, does not require any request from the Archdiocese. It will be presented throughout as their initiative for the sake of public order. It seems to me that they said the very best we could hope for them to say. They feel they are safe with the basis that it is a police initiative to keep the peace and prevent violence. (PX. 124.)

 Because the meeting Was held prior to the public announcement by the police of the decision to freeze the sidewalk, Assistant Chief Schwartz had specifically requested Msgr. Rigney to keep the meeting and the decision secret. Accordingly, a few days later when a Dignity leader telephoned Rigney to express his unhappiness that the area in front of St. Patrick's had been entirely closed to demonstrators, Rigney responded that he knew of no such plan. Rigney felt obliged, however, to report this call to the police by sending them a blind copy of a memo he had written describing it. (Px. 125; Tr. 126-27.)

 The 1983 Parade, itself, proceeded without violence. (Undisputed Facts #70.) About 100 policemen were assigned to the Cathedral area for the 1983 Parade (Undisputed Facts #71) and approximately 100 counterdemonstrators were actually on hand to protest. (Tr. 162, 347; PX 1, p.140; PX 1, pp.202-03.) An area for counterdemonstrators was designated on the sidewalk on the west side of Fifth Avenue between 49th and 50th Streets, directly abutting the line of march. Assistant Chief Schwartz had placed the counterdemonstrators directly along the line of march specifically so they could see that the Police Department had kept its promise not to allow gay groups on the sidewalk and steps in front of the Cathedral. (Tr. 914.) The west side of Fifth Avenue from 49th Street to 46th Street was also available as an overflow area for counterdemonstrators who never showed up. These areas were demarcated by wooden sawhorses. (Undisputed Facts #69; PX 66, 67; Tr. 534.) During the 1983 Parade the police encountered no problem with counterdemonstrators attempting to leave their appointed areas. (Tr. 143; 949-50.)

 In 1984, the new Assistant Chief for Manhattan Borough South, Chief Kerins, again decided to freeze the Cathedral sidewalk. Kerins' basis for continuing the freeze was essentially the same which had led Chief Schwartz to initiate the freeze in 1983, i.e., a purported risk of violence between the counterdemonstrators and gay groups seeking access to the sidewalk and Cathedral area. (Undisputed Facts #77; Tr. 348, 351, 454.) Prior to the 1984 Parade, Kerins and Lt. Tarantino held meetings with representatives of counterdemonstration groups, including McKay and McCauley, to assess their plans for the upcoming event. (Undisputed Facts #76). The counterdemonstrators again predicted large numbers. (Tr. 147.) Based on these discussions the Police Department anticipated that thousands of anti-gay individuals would attend the 1984 Parade. At this meeting in 1984 -- but prior to any investigation of the figures supplied by the counterdemonstrators (Tr. 150) -- the Police Department announced to the counterdemonstrators that the sidewalk would again be frozen as in 1983, (Tr. 147, 150.)

 Also prior to the 1984 Parade, the Police Department, through Lt. Tarantino, had initiated contact with Msgr. Rigney at St. Patrick's to discuss the as yet only projected sidewalk freeze. Tarantino asked Msgr. Rigney to schedule a church service during the hours of the Parade, explaining that this would make it "easier" for the police to reply" to the gays who wished to demonstrate in front of the Cathedral. (Tr. 83-85.) Rigney was under the impression from this conversation that a municipal ordinance precluded demonstrations in front of churches or synagogues while religious services were being held. In response to the lieutenant's call (notwithstanding Rigney's and Tarantino's implausible testimony that the suggestion was merely a "joke"), the monsignor passed the idea on to the then-acting Bishop of the Cathedral. (Bishop O'Keefe acted as leader of the diocese in the interim period between Cardinal Cooke's death and the appointment of Cardinal O'Connor.) The reply from the Bishop was a "wish" that a service be scheduled ...


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