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YOUNG v. NEW YORK CITY TRANSIT AUTHORITY

January 25, 1990

WILLIAM B. YOUNG, JR., AND JOSEPH WALLEY, ON BEHALF OF THEMSELVES AND ALL OTHER PERSONS WHO ARE SIMILARLY SITUATED; AND, LEGAL ACTION CENTER HOMELESS, PLAINTIFFS, SHERON GILMORE, PLAINTIFF-INTERVENOR,
v.
NEW YORK CITY TRANSIT AUTHORITY, METROPOLITAN TRANSPORTATION AUTHORITY OF THE STATE OF NEW YORK, METRO-NORTH COMMUTER RAILROAD COMPANY, THE LONG ISLAND RAIL ROAD COMPANY, THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY, AND ROBERT R. KILEY, AS CHAIRMAN OF THE NEW YORK CITY TRANSIT AUTHORITY, THE METROPOLITAN TRANSPORTATION AUTHORITY OF THE STATE OF NEW YORK, THE METRO-NORTH COMMUTER RAILROAD COMPANY, AND THE LONG ISLAND RAIL ROAD COMPANY, AND ROBERT ABRAMS, AS ATTORNEY GENERAL OF THE STATE OF NEW YORK, DEFENDANTS.



The opinion of the court was delivered by: Sand, District Judge.

    Plaintiffs, two homeless men who solicit money for themselves in the New York City transit system, bring this action on behalf of themselves and all other persons similarly situated, alleging that various regulations and New York Penal Law § 240.35(1) infringe upon their right to free speech under the First Amendment. Plaintiffs move to amend their complaint, for an order determining that this action is maintainable as a class action, and for a preliminary injunction restraining defendants from enforcing, either through the challenged provisions or any other rule, regulation or statute, a ban on solicitations of money by plaintiffs. For the reasons stated below, plaintiffs' motions are granted in substance without prejudice to the adoption by defendants of reasonable time, place and manner of exercise restrictions on the conduct in question.

I. BACKGROUND

In August 1989, the Metropolitan Transportation Authority (hereinafter "MTA") Board adopted certain revisions to the New York City Transit Authority (hereinafter "TA") Rules governing use of the transit facilities. An existing rule prohibited any person, unless "duly authorized" by the TA, from soliciting "upon any facility or conveyance . . . alms, subscription or contribution for any purpose."*fn1 21 State of New York Codes, Rules and Regulations (hereinafter "NYCRR") 1050.6(b) (1976). To this rule was added a provision which "deemed to be authorized" certain non-transit uses including: "public speaking; distribution of written materials; solicitation for charitable, religious or political causes; and artistic performances, including the acceptance of donations." 21 NYCRR 1050.6(c). Regulations 1050.6(c)(1)-(7) also subjected these non-transit uses to specific express time, place and manner restrictions. These restrictions prohibited the "authorized" non-transit uses in areas not generally open to the public and in subway cars. With the exception of leafletting or distributing literature, campaigning, public speaking or similar activities with no sound production device and no physical obstruction, non-transit uses were also prohibited within twenty-five feet of a token booth or within fifty feet from the marked entrance to an TA office or tower. The amended rules became effective on October 25, 1989.

Plaintiffs Young and Walley,*fn2 both homeless men who solicit money entirely for their own benefit throughout the subway system, affirm that they were told by TA police that they could not panhandle and that they would be arrested if they were caught doing so. Both plaintiffs also contend that since the commencement of Operation Enforcement, they were directed on several occasions to vacate subway platforms or cars. Plaintiffs attest that their conduct consists of approaching passers-by in subway stations, on platforms and in walkways, asking them for money, and answering any questions they might have.

On November 28, 1989 plaintiffs commenced this action on behalf of themselves and a class defined as all homeless or needy persons who are or will be asking or soliciting others for charity in the train or bus or subway stations of New York City or all other places within the jurisdiction of defendants where this is prohibited. Plaintiffs allege that the TA rules violated their rights under the First and Fourteenth Amendments of the United States Constitution and Article 1, §§ 6, 8 & 11 of the New York State Constitution.*fn3 On December 1, 1989, this Court heard oral argument on plaintiffs' application for a preliminary injunction. Before the Court, plaintiffs confirmed that they were not challenging the TA's authority to apply the time, place and manner restrictions outlined in § 1050.6(c) to their conduct, but rather were contesting defendants' decision to distinguish plaintiffs from others soliciting for charitable purposes.*fn4 In the course of oral argument, the Court granted Sheron Gilmore's motion to intervene as a plaintiff,*fn5 directed the parties to brief certain additional issues, encouraged the parties to explore a consensual resolution of the case in light of plaintiffs' expressed willingness to agree to reasonable time, place and manner restrictions, and enjoined defendants from putting up or distributing additional posters.

In the interim, the TA once again amended 21 NYCRR 1050.6(b) & (c). The amended rule provides:

    (b) No person, unless duly authorized by the
  Authority, shall engage in any commercial
  activity upon any facility or conveyance.
  Commercial activities include (1) the
  advertising, display, sale, lease, offer for sale
  or lease, or distribution of food, goods,
  services or entertainment (including the free
  distribution of promotional goods or materials),
  and (2) the solicitation of money or payment for
  food, goods, services or entertainment. No person
  shall panhandle or beg upon any facility or
  conveyance.
    (c) Except as expressly authorized and
  permitted in this subsection (c), no person shall
  engage in any non-transit uses upon any facility
  or conveyance. Non-transit uses are
  non-commercial activities that are not directly
  related to the use of a facility or conveyance
  for transportation. The following non-transit
  uses are authorized and permitted by the
  Authority, provided they do not impede transit
  activities and they are conducted in accordance
  with the rules governing the conduct and safety
  of the public in the use of facilities of New
  York City Transit Authority and Manhattan and
  Bronx Surface Transit Operating Authority: public
  speaking; distribution of written noncommercial
  materials; artistic performances, including the
  acceptance of donations; solicitation for
  religious or political causes; solicitation for
  charities that (1) have been licensed for any
  public solicitation within the preceding twelve
  months by the Commissioner of Social Services of
  the City of New York under § 21-111 of the
  Administrative Code of the City of New York or any
  successor provision, or (2) are duly registered as
  charitable organizations with the Secretary of
  State of the State of New York under § 172 of the
  New York Executive Law or any successor provision,
  or (3) are exempt from federal income tax under §
  501(c)(3) of the United States Internal Revenue
  Code or any successor provision. Solicitors for
  such charities shall provide, upon request,
  evidence that such charity meets one of the
  preceding qualifications.

Defendants' Fourth Memorandum in Opposition to Plaintiffs' Motion for Preliminary Injunction at 2-3. On December 15, 1989, the Court wrote the Attorney General of the State of New York, Robert Abrams, to provide notice that this case appeared to call into question the constitutionality of New York Penal law § 240.35(1) (McKinney 1989). § 240.35(1) stipulates that: "[A] person is guilty of loitering when he . . . [l]oiters, remains or wanders about in a public place for the purpose of begging . . ."

On December 18, 1989 the Court heard additional oral argument and issued an order, pursuant to an oral opinion,*fn6 temporarily restraining defendants from enforcing the amended rules insofar as they prohibited begging or panhandling in areas in which the TA authorized charitable solicitation. At the Court's suggestion, plaintiffs agreed to file an amended complaint explicitly challenging New York Penal Law § 240.35(1) and naming the New York State Attorney General as a defendant. This action was prompted by defendants' assertion that transit police, as duly authorized peace officers, were doing no more than enforcing that provision of the state penal law.

On December 27, 1989, plaintiffs filed an amended complaint which, in addition to naming the Attorney General as a party defendant*fn7 and challenging § 240.35(1), named the Port Authority of New York and New Jersey*fn8 (hereinafter "Port Authority") and the Long Island Rail Road Company as defendants and alleged that various rules governing the World Trade Center and the Port Authority Bus Terminal also violated the United States and New York State Constitutions. One of those provisions provides that: "[n]o person shall solicit funds or contributions for any purpose at the [Port Authority Bus] Terminal without permission." 21 NYCRR 1220.16.*fn9 In its brief, the Port Authority represents that in practice permits are given for First Amendment activities in the World Trade Center and the Port Authority Bus Terminal on a first come first served basis. SeeMemorandum of Port Authority in Opposition to Motion for Preliminary Injunction at 5. However, because the Port Authority interprets Penal Law § 240.35(1) as prohibiting begging and panhandling, no permits are issued for those particular purposes. Id.

On January 22, 1990, during a third session of oral argument, plaintiffs agreed to move to include all twelve Commissioners of the Port Authority as defendants instead of only the Chairman of the Board of Commissioners*fn10 and to seek certification of a class composed of all needy persons (regardless of their status of homelessness) who live in New York, who are or will be asking or soliciting others for charity for their own benefit in the train, bus or subway stations of New York City or all other places within the jurisdiction of defendants.*fn11 Counsel for the TA clarified that while one of the purposes of the TA regulation was to enforce the New York penal provision, the regulation would continue to be enforced regardless of the validity of the statutory provision.*fn12 The Court requested additional submissions, due on January 30, 1990, on the issue whether any relief the Court granted should be preliminary or permanent, and reserved decision.

II. DISCUSSION

A. Motion to Amend Complaint

Plaintiffs seek leave to amend their complaint to add as defendants the twelve members of the Board of Commissioners of the Port Authority of New York and New Jersey, and to expressly include 21 NYCRR 1220.16, 21 NYCRR 1220.25, and 21 NYCRR 1290.3 within the ambit of the phrase "any other law, rule, or regulation." Fed.R.Civ.P. 15 provides that such leave is to be "freely given when justice so requires." Plaintiffs' motion is granted.

B. Motion to Certify Class

Plaintiffs also move for an order pursuant to Fed.R.Civ.P. 23(c)(1) determining that this action is maintainable as a class action. The proposed class is now defined as "all needy persons who live in the State of New York, who are or will be asking or soliciting others for charity for their own benefit in the train, bus or subway stations of New York City or all other places within the jurisdiction of defendants where this is presently prohibited." The Court finds no merit to defendants' argument that plaintiffs are not proper class representatives or that the proposed class is geographically overbroad class. Plaintiffs have challenged a statute and regulations that, if taken together, prohibit begging and panhandling throughout the state. Moreover, there is no reason to believe that plaintiffs cannot adequately represent nonresidents of New York City who wish to solicit money in the City transit system or needy people who wish to solicit money in areas within the defendants' jurisdiction outside New York City. The Court reserves decision on whether the Legal Action Center for the Homeless should be either a party or a class representative in this action. Since individual class members are named as parties plaintiff, the status of the Center as a party plaintiff is not critical to plaintiffs' motions. Plaintiffs' motion for class certification is therefore granted.

C. Standards for Preliminary Injunction

Plaintiffs' application is for a preliminary injunction. In the Second Circuit, a party seeking injunctive relief must establish that the injunction is necessary to prevent irreparable harm and either (i) that he is likely to prevail on the merits of the case or (ii) there exist "sufficiently serious questions going to the merits as to make them a fair ground for litigation, together with a balance of hardships tipping decidedly toward the movant." Abdul Wali v. Coughlin, 754 F.2d 1015, 1025 (2d Cir. 1985). There are also at least two instances where a heightened showing is required. First, when the preliminary injunction is mandatory as opposed to prohibitory, an injunction should issue `"only upon a clear showing that the moving party is entitled to the relief requested,' or where `extreme or very serious damage will result' from a denial of preliminary relief." Id. (citations omitted).*fn13 Second, where a preliminary injunction will grant a party all the relief he seeks, the party must show "a substantial likelihood of success on the merits, i.e., that their cause is considerably more likely to succeed than fail . . ." Id. at 1026.

The injunction sought in this case, like the injunction in Abdul Wali, is more prohibitory than mandatory.*fn14 While the status quo would be upset by the injunction, the relief would essentially prevent the defendants from enforcing the rules and would not require any affirmative act other than the obliteration of the single line in the TA's posters which lists begging or panhandling as a proscribed activity.

The injunction sought in this case would also not grant the plaintiffs all the relief they seek. In Abdul Wali the plaintiffs only sought access to the report, and once the prison officials were enjoined from preventing the inmates from receiving it, plaintiffs had received all the relief they sought. This case is more like Eng v. Smith, 849 F.2d 80 (2d Cir. 1988), where the Second Circuit affirmed a district court injunction which required prison officials to maintain mental health services in accordance with certain specified procedures. The Court in Eng found that preliminary relief would not be complete because the injunction would end if the plaintiffs' claims ultimately proved unsuccessful. Id. at 82. Here, as in Eng, the preliminary injunction will terminate if plaintiffs' claims are not ultimately successful.

Since a heightened showing is not required in this case, plaintiffs must demonstrate that they will suffer an irreparable harm and either (i) that they are likely to prevail on the merits or (ii) that there exist sufficiently serious questions going to the merits as to make them a fair ground for litigation and that the balance of hardships tips decidedly toward plaintiffs.

D. Irreparable Harm

The named plaintiffs have affirmed that they rely upon panhandling and begging for their very survival. Defendants have indicated that panhandlers and beggars can be punished with ejection from transit terminals and facilities. The Court takes judicial notice of the fact that cold winter temperatures presently await these ejected panhandlers and beggars. In addition, the Supreme Court has held that "[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2689, 49 L.Ed.2d 547 (1976). Thus, if plaintiffs show that enforcement of the various rules and regulations violates their First Amendment rights, they will have demonstrated irreparable injury and that the balance of hardships tips decidedly in their favor.

E. The Merits

Plaintiffs allege that the challenged rules and regulations, both on their face and as applied to plaintiffs, violate their rights to freedom of speech under the First Amendment of the United States Constitution.*fn15 Plaintiffs argue further that the challenged rules and regulations are nothing more than anti-loitering provisions, violative of their due process rights, and a pretext for evicting the homeless and destitute from locations under the jurisdiction of defendants. For their part, defendants maintain that panhandling and begging are not protected speech, that the transit system is not a traditional or designated public forum, and that the prohibitions on panhandling and begging serve significant state interests which would justify the regulation of speech. The Court will examine these issues with an eye toward ...


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