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NEW ALLIANCE PARTY v. DINKINS

August 8, 1990

NEW ALLIANCE PARTY, LENORA B. FULANI, ALAN COX, MARY RIVERA, AND ARTHUR RUBIN, PLAINTIFFS,
v.
DAVID DINKINS, AS MAYOR OF THE CITY OF NEW YORK, BETSY GOTBAUM, AS NEW YORK CITY COMMISSIONER OF PARKS & RECREATION, THE NEW YORK CITY DEPARTMENT OF PARKS & RECREATION, LEE BROWN, AS NEW YORK CITY POLICE COMMISSIONER, AND THE NEW YORK CITY POLICE DEPARTMENT, DEFENDANTS.



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

ORDER & OPINION

This action is brought by the New Alliance Party ("NAP"), Lenora B. Fulani (Chairperson of NAP), and three New York City residents who allegedly attend political rallies organized by NAP. The defendants are Mayor David Dinkins (the "Mayor"), Betsy Gotbaum (New York City Commissioner for Parks & Recreation), the New York City Department of Parks & Recreation (the "Parks Department"), Lee Brown (New York City Police Commissioner), the New York City Police Department (the "Police Department"), and the City of New York (the "City"). The action requests monetary relief based on the allegedly unconstitutional denial by defendants of permission to plaintiffs to demonstrate in certain areas within sight and sound of Gracie Mansion, the official home of the Mayor, which is located inside an enclave within Carl Schurz Park (the "Park") at 88th Street and East End Avenue in Manhattan. Plaintiffs have filed a motion for preliminary injunctive relief pursuant to Fed.R.Civ.P. 65, requesting that the Court enter a preliminary finding that defendants' actions are in violation of the first amendment to the U.S. Constitution, and that the Court order defendants to permit plaintiffs to demonstrate in the areas in question.

FINDINGS OF FACT

A. The Parties

Plaintiff NAP is a national political party which has promoted candidates for a variety of state and federal offices. Plaintiff Lenora B. Fulani ("Fulani") is the national and New York State Chairperson of NAP, and, under the auspices of her party, she has run for various political offices, including President of the United States, Mayor of New York City, and Governor and Lieutenant Governor of New York State. Declaration of Lenora B. Fulani, dated June 27, 1990, ("Fulani Decl."), ¶ 6. According to Fulani, NAP has lobbied consistently for economic and social policies which would chiefly benefit poor and minority communities, and has attempted to mobilize these communities into firm political opposition to the two major American political parties. Fulani Decl., ¶¶ 7-8. NAP is especially concerned with promoting the so-called `Black Agenda," a program for the economic and political advancement of the black community. Alongside Reverend Al Sharpton ("Rev. Sharpton") and the United African Movement (the "UAM"), NAP has demonstrated frequently in New York City with regard to issues of race relations, such as the well-publicized Bensonhurst murder case. Fulani Decl., ¶¶ 7, 11-12.

To support the candidacy of Mayor Dinkins, now the first black mayor of New York City, NAP collected approximately 24,500 petition signatures to assist in placing him on the ballot. While NAP mobilized voters on behalf of the Mayor, it also pursued a "Doggin' Dinkins" campaign by "attend[ing] his major campaign appearances and vocally demand[ing] that he support the Black Agenda and not forsake the particular needs of the communities from which he derived his greatest support." Fulani Decl., ¶ 9. These latter activities apparently resulted in tensions between NAP and the Mayor's campaign. Ultimately, the Mayor "intervened at the New York City Board of Elections to cause it to reject the 24,500 petition signatures NAP had gathered to help place him on the ballot." Fulani Decl., ¶ 10.*fn1

Throughout 1990, NAP has endeavored to maintain political pressure on the Mayor in an effort to compel him to address its concerns. In conjunction with Rev. Sharpton and the UAM, NAP organized a rally to be held on Saturday, June 16, 1990 in Carl Schurz Park, adjacent to Gracie Mansion. The Chairperson of NAP states that "[i]t was very important to our message that we be able to communicate to the Mayor at the doorstep of his official residence. Just as Bensonhurst was the most appropriate location for our 13 marches for racial justice, Gracie Mansion was the proper situs for the June 16 rally because of the content and object of our message." Fulani Decl., ¶ 14. Specifically, plaintiffs wanted to demonstrate on the grassy oval to the immediate south of Gracie Mansion and just outside the walls of the Gracie Mansion enclave. In the alternative, plaintiffs sought to rally at the front gates of Gracie Mansion, located at 88th Street and East End Avenue.

B. Carl Schurz Park and Gracie Mansion

Gracie Mansion, the official residence of the Mayor, lies within a walled enclave in the upper portion of the Park at 88th Street. A short road runs up-hill from 88th Street and East End Avenue to the gates of the Gracie Mansion enclave, and is the only road access to the Mansion. Footpaths enter the Park at virtually every crosstown street. Directly to the south of the Gracie Mansion enclave is a small oval, sparsely planted with trees, where plaintiffs desire to hold political rallies. The oval is approximately 200 feet in diameter and grassy, except for a large area of bare ground in the center. The southeast half of the oval is flat and relatively open, while the northwest half runs slightly downhill toward the 88th Street entrance to the Park, and is more densely planted with small trees.

Doctor's Hospital occupies the entire block between 87th and 88th Streets on the west side of, and fronting on, East End Avenue. A provision of the New York City Administrative Code prohibits amplified sound within 500 feet of any hospital. See N.Y.C.Admin.Code, Public Safety, § 10-108(g). The 500-foot radius surrounding Doctor's Hospital includes the entire intersection of 88th Street and East End Avenue and most of the areas inside the Park surrounding Gracie Mansion, including the grassy oval.*fn2

C. New York City Demonstration Policy

1. The Parks Department Permit System

Plaintiffs contend that defendant the Parks Department maintains a "Forum Areas" policy which places portions of certain parks, and some parks in their entirety, off limits to political demonstrations. Declaration of Arthur R. Block, Esq., dated June 27, 1990 ("Block Decl."), ¶¶ 7-8, 18; Complaint, ¶ 22.*fn3 Plaintiffs allege that under the Forum Areas policy, there is a total ban on "political" rallies in Carl Schurz Park. Block Decl., ¶ 18; Complaint, ¶ 26. The General Counsel to the Parks Department, however, denies that this or any such policy is, or has been, in effect for the past six years. Affidavit of Sidney Nowell, Esq. ("Nowell Aff."), sworn to on July 19, 1990, ¶ 2. It is possible, although unclear based on the record, that the former Parks Commissioner maintained a Forum Areas policy. See Ex. A to Complaint. The Court finds that no Forum Areas policy exists, and that consideration of such a policy is not relevant to the proceedings at hand.

The Court finds that there are no explicit guidelines used by the Parks Department to decide whether to grant or to deny Special Events Permits. Unlike many municipal permit forms, the face of the Special Events Permit form does not indicate any statute or regulation setting forth such guidelines or providing for the permit system itself. See Ex. 5 to Nowell Aff. The record indicates that the Parks Department possesses full discretion in deciding whether to grant or to deny Special Events Permits. The testimony of Police Department officials suggests that while the Police Department may be able to influence the decision, final authority rests with the Parks Department. Martin Testimony, Tr. 61-62, 85-87; Maldonado Testimony, Tr. 123-28, 137-38.*fn4

2. Police Department Regulations and Practices

The New York City Police Department is the City agency most actively opposed to plaintiffs' demand to protest in the immediate vicinity of Gracie Mansion. After an unruly demonstration by the Patrolmen's Benevolent Association of the City of New York (the "PBA") over contract disputes in 1976, the City brought suit in New York State Supreme Court seeking an injunction restricting the ability of the PBA to demonstrate in the Gracie Mansion area. The PBA rally had taken place at 89th Street and East End Avenue and became disorderly, with demonstrators climbing over the wall into the Park at 89th Street. Lavin Testimony, Tr. 217-18.*fn5 By order dated September 30, 1976, Justice Edward J. Greenfield granted the City's motion for an injunction, and ruled that no more than 100 PBA members could rally in the area bounded by 90th Street to the north, 86th Street to the south, York Avenue to the west, and the East River to the east, and that the Police Department would have full discretion in deciding where the rally could take place. See The City of New York v. Patrolmen's Benevolent Association of the City of New York, Inc., Index No. 42018/76, Order dated Sept. 30, 1976.*fn6

After the PBA protests had terminated, the Police Department issued an order declaring that all rallies aimed at Gracie Mansion must take place on the east side of East End Avenue at 89th Street. Lavin Testimony, Tr. 217-18. However, according to the testimony of several Police Department officials, no group or individual has specifically requested to conduct a political rally on the grassy oval, immediately south of the Gracie Mansion enclave, in recent years. Martin Testimony, Tr. 65-67; Maldonado Testimony, Tr. 126-27; Lavin Testimony, Tr. 222. In addition, there was confusion over whether there was an explicit Police Department or City policy preventing protestors from using the oval, or whether there had been no demonstrations at that location simply because no group had requested to rally there.*fn7 In addition, the, Court has not been made aware of the precise text, if any, of the Police Department order regarding demonstrations in the Gracie Mansion area, as a result of the evidentiary hearing and the papers submitted by the parties. Accordingly, the Court must find on the present record that there is no Police Department policy specifically regarding use of the oval for political rallies which predates the events at issue in this litigation.

Plaintiffs allege, upon information and belief, that it was the policy of the Police department up until June 16, 1990 to permit rallies at 88th Street and East End Avenue, outside of the Park, but within sight and sound of Gracie Mansion. Complaint, ¶ 31. This allegation was strongly disputed by a knowledgeable Police Department official, Inspector Lavin. Lavin Testimony, Tr. 219-20. Indeed, the testimony of all three Police Department officials at the hearing expressed concern over preserving road access to Gracie Mansion by means of 88th Street and East End Avenue. It necessarily follows, as a finding of the Court, that there is no evidence on the current record that a rally or mass meeting of any type has ever taken place at 88th Street and East End Avenue, or that the Police Department permitted, or maintained a policy of permitting, such rallies.

D. The Demonstrations

1. Planning the June 16 Demonstration

On June 1, 1990, plaintiffs filed an application for a Special Events Permit to demonstrate on June 16 inside the Gracie Mansion enclave, or inside the Park as close as possible to the enclave. Complaint, ¶¶ 33-34. This application was denied by the Parks Department on June 5. Plaintiffs' counsel contends that he was informed by two Parks Department officials that the Special Events Permit application was denied due to the Forum Areas policy, which acted as a complete ban on political rallies inside Carl Schurz Park. Block Decl., ¶¶ 7-8. Plaintiffs' counsel thereafter informed the Parks Department that he believed the Forum Areas policy to be violative of the first amendment. Complaint, ¶ 36.

On June 8, NAP's counsel met with Sergeant Milton Maldonado of the 19th Precinct and toured the area in question. Sergeant Maldonado informed plaintiffs' counsel that the Police Department would issue a permit for amplified sound for the area between 85th and 86th Streets and East End Avenue and would secure the rally site in that area. In addition, Sergeant Maldonado stated that if the Parks Department issued a Special Events Permit for inside the Park, the Police Department would secure the rally there, although it would be opposed to the rally site. Maldonado Testimony, Tr. 125; Declaration of Gail Elberg, dated June 27, 1990 ("Elberg Decl."), ¶ 9.*fn8 Subsequently, the Parks Department reversed its position and agreed to issue a ...


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