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LOPER v. NEW YORK CITY POLICE DEPT.

March 9, 1992

JENNIFER LOPER and WILLIAM KAYE on behalf of themselves and all other persons who are similarly situated, Plaintiffs, against NEW YORK CITY POLICE DEPARTMENT, and LEE P. BROWN, as the Commissioner of the New York City Police Department, Defendants.


The opinion of the court was delivered by: ROBERT W. SWEET

Sweet, D. J.

 Plaintiffs Jennifer Loper and William Kaye, on behalf of themselves and the class they represent, have moved for summary judgment against defendants New York City Police Department (the "Police Department") and Commissioner Lee Brown of the Police Department pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth below, their motion is denied.

 Prior Proceedings and Facts

 A complete recitation of the pertinent facts and proceedings is set forth in the prior opinions in this matter, familiarity with which is presumed. See, e.g., Loper v. New York City Police Department, 766 F. Supp. 1280 (S.D.N.Y. 1991). Only those facts necessary to the present motion are presented here.

 The previous motions by both sides for summary judgment were denied without prejudice in an opinion dated June 17, 1991. See id. These motions were made before any significant discovery had taken place, and the absence of evidence was one of the reasons given for their denial. Id. at 1282. Further discovery has taken place since, and this motion is based in part on information received by the Plaintiffs from the Defendants during this period.

 The Plaintiffs seek a declaration that New York State Penal Law § 240.35(1) (the "Statute") is unconstitutional. Section 240.35 provides that:

 A person is guilty of loitering when he:

 1. Loiters, remains or wanders about in a public place for the purpose of begging; or

 3. Loiters or remains in a public place for the purpose of engaging, or soliciting another person to engage, in deviate sexual intercourse or other sexual behavior of a deviate nature; or

 . . .

 5. Loiters or remains in or about school grounds, a college or university building or grounds, not having any reason or relationship involving custody of or responsibility for a pupil or student, or any other specific, legitimate reason for being there, and not having written permission from anyone authorized to grant the same; or

 6. Loiters or remains in any transportation facility, unless specifically authorized to do so, for the purpose of soliciting or engaging in any business, trade or commercial transactions involving the sale of merchandise or services, or for the purpose of entertaining persons by singing, dancing or playing any musical instrument; or

 7. Loiters or remains in any transportation facility, or is found sleeping therein, and is unable to give a satisfactory ...


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