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Olivieri v. Ward

decided: September 16, 1986.

MICHAEL J. OLIVIERI, J. MATHEW 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, JAMES DOYLE, DAVID LAWLOR, JIM CANNON, NED LYNAM, EDWARD BYRNE, MICHAEL CONLEY, EDWARD HARBUR, ROBERT J. BUEL, CHRISTOPHER WESOLOWSKI, GARY W. SPOKES, DIGNITY-NEW YORK, PLAINTIFFS-APPELLEES,
v.
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-APPELLANTS



Expedited appeal by defendants Benjamin Ward, Police Commissioner of the City of New York, et al., from an order entered in the United States District Court for the Southern District of New York (Motley, C.J.) on June 13, 1986 that granted plaintiffs, Dignity-New York, Michael Olivieri, its president, et al. a judgment declaring that their civil rights protected by 42 U.S.C. § 1983 had been infringed and granted plaintiffs an injunction permanently enjoining defendants. Affirmed, as modified, in part, reversed in part.

Author: Cardamone

Before: NEWMAN, CARDAMONE, and PIERCE, Circuit Judges.

CARDAMONE, Circuit Judge:

This expedited appeal arises from one aspect of the "Gay Pride Parade" held in Manhattan on Sunday June 29, 1986. Plaintiffs are Dignity-New York, a not-for-profit New York Corporation (Dignity), Michael Olivieri, its president, and 21 other gay Catholic members of Dignity-New York. Defendants are Benjamin Ward, as Police Commissioner of the City of New York, Edward I. Koch, as Mayor of New York, and the New York City Police Department. Plaintiffs, who instituted suit in the United States District Court for the Southern District of New York (Motley, C.J.) claiming infringement of their civil rights under 42 U.S.C. § 1983 (1982), sought a declaratory judgment and a permanent injunction. Following trial, Chief Judge Motley handed down a thorough opinion and a brief order that in substance granted plaintiffs the relief they sought.

BACKGROUND

The focus of this controversy is the public sidewalk in front of St. Patrick's Cathedral on the east side of 5th Avenue between 50th-51st Streets in midtown Manhattan. Plaintiffs sought to conduct a peaceful demonstration there during the hours from 1 P.M. to 3 P.M. while the Annual Gay Pride Parade passed in its march south from Central Park to Greenwich Village. Defendants refused plaintiffs unlimited access to the sidewalk because they thought it was a focal point for potential confrontation with counterdemonstrators formed loosely into a Committee for the Defense of St. Patrick's Cathedral (Committee). This group, whose president is Herbert McKay, draws its members from the Knights of Columbus, Ancient Order of Hibernians, Catholic War Veterans, groups of Orthodox Jews and other organizations. These counterdemonstrators have been present behind police barricades on the west side of 5th Avenue across the street from the Cathedral for the past five annual Gay Pride Parades. As a result of their fears, Commissioner Ward and the City Police Department planned to close the sidewalk in front of the Cathedral to plaintiffs, other demonstrators and counterdemonstrators, and the public at large for the duration of the 1986 parade. It was that decision that prompted the instant lawsuit before Chief Judge Motley.

PROCEEDINGS BELOW

During the eight days of trial--that commenced on May 12 and concluded May 21, 1986--the trial court heard testimony from 11 witnesses and reviewed and received a number of exhibits into evidence. Among those testifying were the police officials in charge of this and past year's parades, a member of Dignity-New York serving as coordinator of this year's parade, the Rector of St. Patrick's Cathedral, and leaders of the counterdemonstrators. The trial judge handed down an opinion on June 13, 1986 which concluded that freezing the sidewalk was not a reasonable time, place and manner restriction on the exercise of plaintiffs' rights of free speech because it was not content-neutral. The district court believed that the police had given the counterdemonstrators a "heckler's veto" and that the Police Department's estimations of violence were not credible, and hence were pretextual. The district court found "a certain excessive sensitivity to the Catholic Church on the part of police officials" that supported its conclusion that the speech restriction was not content neutral. The trial court also stated that the limitation imposed was not adequately tailored to further any significant governmental interest. No analysis was undertaken regarding whether the sidewalk freeze allowed plaintiffs adequate alternatives to express their message.

Chief Judge Motley declared defendants' decision to prohibit Dignity access to the sidewalk adjacent to St. Patrick's an unconstitutional restraint on plaintiffs' First Amendment rights. The district court thereupon granted a permanent injunction enjoining defendants from preventing up to 100 members of Dignity from peacefully demonstrating on the public walk before the Cathedral for the duration of the "Gay Pride Parade" on June 29, 1986 and "during subsequent annual Gay Pride Parades." Defendants were granted the right to apply for modification of the injunction based on a substantial change in circumstances.

PROCEEDINGS BEFORE THIS PANEL

Five days after the trial court handed down its June 13 opinion defendants appealed, and the matter was ordered expedited to this panel for an oral argument that was heard on Thursday June 26, 1986. The three days available until the June 29 parade provided an insufficient time to draft an opinion adequately resolving the significant issues raised. We therefore attempted during oral argument to induce the parties to agree on a limited number that would demonstrate in front of the Cathedral. In response to this suggestion, the City of New York proposed that 20 of plaintiffs' members remain in an enclosed area depicted in trial exhibit #193 for 45 minutes and--after a 30 minute interval--a similar number of counterdemonstrators occupy the same area for the same period of time.

Trial exhibit #193 is a photo taken during the 1985 parade and was referred to by the panel and counsel during oral argument. The view is one looking down on a barricaded area--resembling a chute--leading from the 5th Avenue curb to the foot of the steps at the main entrance of St. Patrick's Cathedral. In response to the City's proposal, a letter from plaintiffs' counsel of Friday June 27 stated that plaintiffs would agree to limit its demonstrators to 75 persons in a "pen located in the center of the sidewalk" for 45 minutes and would also agree to counterdemonstrators coming into the area during the second half of the parade. The smaller number proposed by the City was not acceptable.

In view of the impasse, we handed down an order on Friday June 27 which, on our own motion, stayed the injunction issued by the district court, subject to certain conditions. Principal among the conditions was that defendants permit 25 members of Dignity to demonstrate peacefully for 30 minutes during the parade within the confines of the police barricade shown on exhibit # 193 and that defendants permit the same number of those opposed to Dignity to demonstrate for the same time in the same area, separated by a 30 minute interval. The police were granted authority to close the sidewalk to the general public during the parade and to impose more restrictive measures if in their professional judgment circumstances at or near the site posed a danger to public safety.

According to news reports the parade went off as scheduled with more than 12,000 marching by St. Patrick's Cathedral. The scenario fashioned by the order apparently went smoothly as both Dignity and the Committee demonstrated for their ...


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