The opinion of the court was delivered by: Sweet, District Judge.
Plaintiffs Jennifer Loper ("Loper") and William Kaye ("Kaye"),
who are New York City residents, and the class they represent
have moved pursuant to Rule 56, Fed.R. Civ.P. for summary
judgment upon their 42 U.S.C. § 1983 complaint against
defendants New York City Police Department (the "City") and its
Commissioner Lee P. Brown ("Brown"). The City has cross moved
for summary judgment to dismiss the complaint. For the reasons
set forth below, both motions are denied.
Loper and Kaye filed their complaint in this action and moved
for class certification on November 23, 1990. On that same day,
they commenced an action in the New York State Supreme Court
(the "state court action"). Upon the agreement of the parties,
the state court action has been adjourned pending the outcome
of the proceedings in this court.
Oral argument on the class certification motion was heard on
December 21, 1990. In an opinion of April 2, 1991, the court
granted Loper's and Kaye's motion for class certification. 135
F.R.D. 81 (S.D.N.Y.).
On February 4, 1991, Loper and Kaye filed a motion for summary
judgment pursuant to Rule 56, Fed.R.Civ.P. The Police
Department subsequently filed a cross motion for summary
judgment. Oral argument on the summary judgment motions was
heard on March 8, 1991, and the summary judgment motions were
considered submitted as of that date.
Loper has been homeless since October of 1990. Since leaving
the care of her parents and quitting high school sometime in
1989 until she became homeless, Loper has stayed in a
Westchester County half-way house, in a rented apartment in the
East Village of New York, and with various friends. She has
never stayed in a New York City shelter or a privately run
shelter for homeless persons. Loper has applied for public
assistance benefits from New York City, but has not yet
completed the necessary paperwork. Loper has begged from people
on the streets and in the parks of New York City since October
Kaye arrived in New York City from his mother's house in
Bayport, Long Island in August of 1990. He has been homeless
since that time, and living on the streets of the East Village.
Before his arrival in New York City, Kaye had experienced an
eight month period of homelessness in Long Island, during which
time he obtained emergency shelter from various agencies. Kaye
has never stayed in a New York City shelter or a privately run
shelter for homeless persons and has never applied for public
assistance from a New York City agency.
Both Loper and Kaye beg in the East village section of
Manhattan. Their usual practice is to stand in the street or
park and say to passersby: "Can you spare some change for
something to eat?" or "Spare any change for some food, sir or
ma'am?" They occasionally engage in conversation with people
from whom they beg. Kaye has testified that the police have
stopped him from begging between seven and ten times. Loper has
testified that the police have stopped her from begging between
five and ten times. Generally, the police officers put a stop
to Loper's and Kaye's begging by asking them to move along.
New York State Penal Law (the "Penal Law") § 240.35(1)
(McKinney's 1989) provides that:
A person is guilty of loitering when he: Loiters, remains or
wanders about in a public place for the purpose of begging.
Neither Loper nor Kaye has been arrested pursuant to the Penal
Summary Judgment Standard
Under Rule 56, a motion for summary judgment shall be granted
when the moving party demonstrates as a matter of law that he
is entitled to that remedy because there are no genuine issues
of material fact present in the action. H.L. Hayden Co. v.
Siemens Medical Systems, Inc., 879 F.2d 1005, 1011 (2d Cir.
1989). The moving party, however, has the burden of
demonstrating the absence of any genuine issue as to all the
material facts, and the non-moving party is entitled to all
favorable inferences that may be drawn from the evidence.
Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438,
444-45 (2d Cir. 1980).
The Summary Judgment Motion of Loper and Kaye
Loper and Kaye initiated this action under 42 U.S.C. § 1983
seeking a declaration that the Penal Law violates the First
Eighth and Fourteenth Amendments to the Constitution of the
United States as well as the Constitution of New York State.
In any § 1983 action, the initial inquiry must focus on whether
the two elements essential to a § 1983 action are present: (1)
whether the conduct complained of was committed by a person
acting under color of state law; and (2) whether this conduct
deprived a person of rights, privileges, or immunities secured
by the Constitution or laws of the ...