Compare Fed. R. Civ. P. 56(f). The Court will therefore only consider the implication, if any, of the arrest records submitted in connection with the present motion.
I. The Arrest Records
From the Plaintiffs' perspective, the arrest reports show that, since 1982, 1,207 arrests have been made where the person arrested has been charged with violating the Statute. In 104 instances, the top charge is a violation of the Statute. The Plaintiffs contend that the disposition reports with which they have been provided show that none of these arrests have resulted in a conviction, but that most have been purged.
The Plaintiffs thus argue that they are entitled to summary judgment because the arrest reports show the Defendants continue to inflict injuries upon the plaintiff class that violate § 1983. In making this argument, the Plaintiffs assume that they have suffered a deprivation of a right protected by the Constitution's First Amendment.
The Defendants delve deeper into the reports and offer several plausible interpretations, including that § 240.35(1) is listed erroneously in the vast majority of instances. By pointing to specific records where § 240.35(1) is listed as the top charge, they contend descriptions of the conduct at issue provided in the reports show that most of the arrests involved prostitution, drug activity, or gambling. Of all the arrests upon which the Plaintiffs rely, the Defendants contend that only five appear to have involved loitering for begging just by having examined the computerized arrest reports submitted and by not having conducted any further investigation.
Furthermore, the Defendants have submitted all those arrest reports, except for those that have been sealed, for arrests charging a violation of § 240.35(1) in 1991. The Defendants argue that of the 48 reports, only five implicate begging. According to them, of the others, twenty involve drugs; six gambling; six trespass; and five prostitution. One report was erroneously included and no explanation is provided for the others. The facts of the begging arrests for which reports have been submitted appear to distance these arrests from the type of behavior alleged here. For example, in one case the suspect was begging in a wheelchair dressed in a soldier's uniform, even though he was neither disabled nor a veteran. In another, the person charged assaulted a pedestrian.
In a motion for summary judgment, factual inferences are to be drawn in favor of the non-moving party. See H.L. Hayden Co. v. Siemens Medical Systems, Inc., 879 F.2d 1005, 1011-12 (2d Cir. 1989). Here, the Defendants have pointed to reports showing that a § 240.35(1) charge on an arrest report can be, and in certain instances indeed was, erroneous. From these reports, inferences can be drawn as to all 1,207 arrests that favor either side. The Defendants therefore have raised a question of fact as to their enforcement scheme under the statute, precluding summary judgment. See Ellis v. Dyson, 421 U.S. 426, 434, 44 L. Ed. 2d 274, 95 S. Ct. 1691, 1696 (1975); Young v. New York City Transit Authority, 903 F.2d 146, 163 (2d Cir. 1990), cert. denied, 112 L. Ed. 2d 528, 111 S. Ct. 516 (1990).
II. Mere Enactment of the Statute
The Plaintiffs also contend that they are entitled to relief, assuming that § 240.35(1) violates the Constitution, by virtue of its mere enactment. In doing so, the Plaintiffs principally rely on Epperson v. Arkansas, 393 U.S. 97, 21 L. Ed. 2d 228, 89 S. Ct. 266 (1968).
Epperson is an unusual case. There, the Supreme Court was presented with an opportunity to rule on a statute not unlike that at issue in the famed Scopes trial. A high school biology teacher sought a declaration that the statute was void so that she could teach Darwin's theory of evolution as presented in an assigned textbook. Although there was no record of there ever being a prosecution under the statute, see id. at 101, counsel for Arkansas did state that the teacher would be liable for prosecution if she told her students about Darwin's theory, see id. at 103. The Court "brushed aside" Justice Black's concerns over whether the case presented a justiciable controversy, id. at 110 (Black, J., concurring), and declared the statute unconstitutional.
The Plaintiffs contend that Epperson stands for the proposition that the mere enactment of an unconstitutional statute by a state warrants the exercise of a federal court's equitable jurisdiction. Putting aside the federalism concerns this raises, the Plaintiffs give Epperson a much broader reading than is warranted by the Constitution and case law.
"No federal court . . . has 'jurisdiction to pronounce any statute, either of a State or of the United States, void, because irreconcilable with the Constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies." Golden v. Zwickler, 394 U.S. 103, 110, 22 L. Ed. 2d 113, 89 S. Ct. 956, 960 (1969) (emphasis deleted) (quoting Liverpool, N.Y. & P.S.S. Co. v. Commissioners, 113 U.S. 33, 39, 28 L. Ed. 899, 5 S. Ct. 352, 355 (1885)). "A hypothetical threat is not enough," United Public Workers of America v. Mitchell, 330 U.S. 75, 90, 91 L. Ed. 754, 67 S. Ct. 556, 564 (1947), rather a "credible threat must be shown to be alive at each stage of the litigation." Ellis, 421 U.S. at 426; see U.S. Const. art. III, § 2; Young, 903 F.2d at 162-63. Presumably this requirement was satisfied in Epperson by Arkansas's representation at oral argument.
Here, unlike Epperson, the Defendants have not conceded that they enforce § 240.35(1) and questions of fact exist concerning their past and current enforcement schemes. Moreover, no other evidence has been submitted to allay the Court's initial concerns about the strength of the Plaintiff's case. See Loper, 766 F. Supp. at 1282. Granting Plaintiffs summary judgment on the current record, assuming that begging is a right secured by the Constitution, would be imprudent.
The Plaintiffs have also asked the Court to reconsider its prior decision. For the reasons set forth above and in Local Rule 3(j), the request is denied.
For the reasons set forth above, the Plaintiffs' motion for summary judgment is denied at this time, with leave to renew upon further discovery. Discovery is to be completed by April 17, 1992.
It is so ordered.
New York, N. Y.
March 9, 1992
ROBERT W. SWEET