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September 30, 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.

 As Alfred Hitchcock, the master of cinematographic terror and suspense, is reported to have said, "terror results from disorder," and begging, the subject of the statute here under constitutional attack, over time has been viewed as the archetypical expression of disorder. *fn1" Since the early days of western civilization, people have sought to define the conduct that violates society's sense of order and that which society permits or even encourages. *fn2" Yet, as civilization as a whole has moved forward, people have learned time and again that suppressing speech and conduct deemed contrary to a society's sense of order merely masks the underlying disorder. *fn3" These motions for summary judgment require the resolution of a modern-day constitutional challenge to a statute which provides that loitering for the purpose of begging is a crime.

 Out of the maelstrom of conflicting values, precedents, and decisional principles, against a background of established facts ambiguously interpreted, the determination is reached that the motion of the Defendants Police Department of the City of New York (the "Department," the "City") and Lee P. Brown, the Police Commissioner, to dismiss the complaint is denied, and the cross-motion of the named class plaintiffs, Jennifer Loper and William Kaye (the "Plaintiffs"), to declare the statute unconstitutional is granted.

 Directly arrayed against each other are the requirements to maintain public order as determined by the legislative representatives of the society and the protection of free expression as guaranteed by the First Amendment of the Constitution. These contending principles are starkly presented in the setting of New York City, where "urban man must distinguish carefully between his private life and his public relationships." *fn4" And the issues raised by this case expose not only the inevitable tension between individual rights and the interests of society but the very rationality of our society in its commitment to the rights protected by the First Amendment. The problem is succinctly stated by Professor T.M. Scanlon, Jr.:

 The doctrine of freedom of expression is generally thought to single out a class of "protected acts" which it holds to be immune from restrictions to which other acts are subject. In particular, on any very strong version of the doctrine there will be cases where protected acts are held to be immune from restriction despite the fact that they have as consequences harms which would normally be sufficient to justify the imposition of legal sanctions. It is the existence of such cases which makes freedom of expression a significant doctrine and which makes it appear, from a certain point of view, an irrational one. . . . To answer this charge of irrationality is the main task of a philosophical defense of freedom of expression.

 Thomas Scanlon, A Theory of Freedom of Expression, 1 Phil. & Pub. Aff. 204, 204 (1972).

 The case at hand is precisely the sort that brings the apparent irrationality of the doctrine of the freedom of expression into sharp relief. Because I acknowledge the disorder inherently associated with and manifested by this form of expression, to wit, a kind of disorder that gives rise to a wide spectrum of effects ranging from mere annoyance and inconvenience to genuine terror, I conclude that it is necessary to determine the standing of the Plaintiffs, the interest of the City, the manner, content, and nature of the expression involved, the test to be applied in light of the history of the issue, the precedents, and the conflicting views of First Amendment enforcement, and finally, the balancing of factors upon which this decision rests. Others may perceive shorter cuts to a resolution, but I fail to do so.

 It should be noted that, once again, difficult constitutional issues are being presented in an abstract fashion as a result of the class action procedure. *fn5" The size of the class is, and will remain, unknown. Indeed the issues are presented with an unfortunate degree of abstraction. *fn6" The course of the proceedings reveals the obstacles that have been met in the effort to present the relevant factual considerations.

 The Statute

 The Plaintiffs have contended that the following statute contravenes the First, Eighth, and Fourteenth Amendments to the United States Constitution:

 A person is guilty of loitering when he:

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

 N.Y. Penal Law § 240.35(1) (the "Statute").

 One would expect the Statute's roots to be deep, and indeed they are. Its post-independence genesis may be found in a 1788 statute that classified as disorderly persons "all persons who go about from door to door or place themselves in the streets, highways or passages, to beg in the cities and towns . . . ." 2 Laws of the State of New York 643 (Weed Parsons 1886). The primary concern of this law and its successors appears to have been keeping able-bodied persons from remaining idle.

 Blackstone echoes this concern in his Commentaries, noting that "idleness in any person is also a high offence against the public oeconomy." 4 William Blackstone, Commentaries *169. *fn7" He traces this concern back to Ancient Greece, where sturdy vagrants were expelled from cities. The poor laws of sixteenth and early seventeenth century England appear to have drawn one of the clearest distinctions between able-bodied beggars and those who could not support themselves. The former were punished. The latter were initially given relief, but, when that failed, were later licensed. See 4 W.S. Holdsworth, History of English Law 392-99, 511 (1924); C.J. Ribton-Turner, A History of Vagrants and Vagrancy and Beggars and Begging 72-75 (1887). *fn8"

 Prior Proceedings

 The Plaintiffs filed this and a companion state action on November 23, 1990. The parties agreed to stay the state action pending the resolution of this lawsuit. In their Complaint, the Plaintiffs seek a declaration that § 240.35(1) and the Defendant's enforcement of it violate the First, Eighth, and Fourteenth Amendments to the United States Constitution, pursuant to 42 U.S.C. § 1983. They also seek relief under the New York State Constitution.

 The same day they filed this action, the Plaintiffs requested that it be maintained as a class. Their request was granted on April 2, 1991, provided the Plaintiffs submitted a suitable definition of the term "needy." Loper v. New York City Police Department, 135 F.R.D. 81, 83 (S.D.N.Y. 1991) ("Loper I"). On April 8, 1991, the Plaintiffs provided a further definition of "needy," which was accepted subject to modification as the facts developed. Loper v. New York City Police Department, No. 90 Civ. 7546, slip op. at 6 (S.D.N.Y. July 15, 1991) ("Loper III"). Together, Loper I and Loper III define a Plaintiff Class consisting of all those "needy persons who live in the State of New York, who beg on the public streets or in the public parks of New York City," where a "needy person" is defined as "someone who, because of poverty, is unable to pay for the necessities of life, such as food, shelter, clothing, medical care, and transportation."

 Both parties moved for summary judgment in February 1991, before any significant discovery had taken place. Their motions were denied with leave to renew upon further discovery on June 17, 1991. Loper v. New York City Police Department, 766 F. Supp. 1280 (S.D.N.Y. 1991) ("Loper II").

 On November 19, 1991, the Plaintiffs again moved for summary judgment prior to the close of the discovery period. This motion was denied without prejudice as well, principally on the ground that the City had raised a question of fact concerning its enforcement scheme. Loper v. New York City Police Department, 785 F. Supp. 464 (S.D.N.Y. 1992) ("Loper IV").

 The Defendants filed their present motion for summary judgment on April 21, 1992. The Plaintiffs meanwhile filed a motion for additional discovery. The Plaintiffs' motion was granted in part, and the Defendants ordered to turn over additional data to the Plaintiffs, primarily concerning the number of summonses the Department has issued under the Statute. The Plaintiffs then filed a cross-motion for summary judgment. Oral argument on the summary judgment motions was consolidated and heard on July 8, 1992. Final submissions were received on July 20, 1992.

 The Facts

 I. The Plaintiffs

 The Plaintiffs are homeless. They beg on the streets and in the parks of New York City. The money they receive goes towards providing them with food, shelter, clothing, transportation, and medicine. At times, they discuss their plight with those they encounter.

 The Plaintiffs have never been arrested for begging, nor have they ever received a summons. The police occasionally order them to stop begging and to move along. The size of the Plaintiff Class is unknown to both parties.

 II. The Defendants

 The Department enforces the Statute. Data gleaned from summons statistics covering 1986 to the present show the Department has enforced the Statute against a significant number of persons who presumably are members of the Plaintiff Class. A relatively smaller number of class members have been arrested under the Statute. A number of precincts have also initiated aggressive programs under the Statute against people begging in their respective neighborhoods.

 The Department's ability, in this day and age, to gather and analyze data is less than satisfactory, and the data it does gather are often inaccurate. One of the Department's original defenses, which has proven amazingly true, is that the vast majority of arrests under the Statute were erroneously listed, and that such arrests should have been properly recorded under another provision of the Statute.

 As for the summonses, the Department has issued 794 since 1986. The Department does not maintain disposition records for the summons either. In fact, it appears that the only statistic it can produce is that Precinct A generated x summonses under the Statute in a given month. To determine why any particular summons was issued, one would have to consult the issuing officer's notebook, which may or may not have an entry describing the circumstances leading to the summons being issued, and which is maintained by the individual officer. Therefore, one must assume that all of these summonses were issued to members of the Plaintiff Class.

 When Loper and Kaye seek alms from others on the sidewalks of New York, police officers occasionally come up to them and ask them to stop begging and move along. See, e.g., Loper Depo. 43-50; Kaye Depo. 29-39. Kaye refrains from soliciting funds in Thompson Square Park because "the police harass me a great deal in that place." Kaye Depo 29.

 The Sergeant in charge of the Community Police Unit for the precinct where the Plaintiffs conduct most of their activity has testified by unrebutted affidavit that "asking plaintiffs to move on . . . could have been entirely consistent with the 9th Precinct's practice and policy regarding enforcement of Penal Law § 240.35(1) depending upon the circumstances that the officers encountered." Ahearn Decl. P 10. Even though this precinct formally prosecutes people under the Statute rarely, see Sommers Cert. Ex. B (July 7, 1992); Lipton Decl. Ex. A (July 17, 1992), the Statute is used by the Department as a source of authority for restricting the Plaintiffs' assumed rights. As such, the Plaintiffs have suffered a concrete injury.

 The Bluszcz Declaration establishes that a strategy designed to curtail begging and panhandling in another neighborhood expressly relied on the authority of the Statute. Under this program, police officers observing people begging on the street warned the beggars that their conduct was illegal and told them to move on. This quickly proved ineffective, however, and the officers began to issue summonses and make arrests under the Statute. See Bluszcz Decl. P 8-12. Overall, the program reduced the number of people begging in the neighborhood. Summonses are issued now only to those who fail to comply with a move-on order or who appear to be begging in an "aggressive or intimidating fashion." Id. P 12. Assuming the Statute violates the rights of the Plaintiff Class, members of the class have thus suffered concrete injuries by being arrested, issued summonses, and told to move on.

 "The Broken Windows"

 In addition, the Defendants have presented expert testimony by Professor George Kelling. Professor Kelling has testified without contradiction that beggars and panhandlers indicate to society that disorder has set in. A neighborhood with such people, in which there are broken windows, drug dealers, and youth gangs, is threatening to the society precisely because of the indication of disorder. See Kelling Aff.; see also Young v. New York City Transit Authority, 903 F.2d 146, 149-50 (2d Cir.) (discussing the exigencies created by begging), cert. denied, U.S. , 111 S. Ct. 516 (1990); Kelling, Measuring What Matters: A New Way of Thinking About Crime and Public Order, 2 City J. 21, 24-25 (Spring 1992) (same). Though he tends to lump peaceful and aggressive begging together, see, e.g. Kelling Aff. PP 43-44, the thrust of his testimony is that the police, by enforcing the Statute, seek to reassert an orderly society. Realty and everyday experience confirm this "Broken windows" effect.

 The Conclusions

 I. The Plaintiffs Have Standing

 The Defendants first contend the complaint should be dismissed because the named Plaintiffs lack standing. However, assuming the Plaintiffs' conduct is constitutionally protected, they have standing to oppose the Statute on behalf of themselves and the Plaintiff class. See International Soc'y for Krishna Consciousness, Inc. v. Lee, U.S. , , 112 S. Ct. 2701, 2705 (1992) ("ISKCON I").

 Loper IV denied the Plaintiffs' motion for summary judgment in Part because the record then failed to establish that the Defendants enforced the Statute. The Defendants have since submitted affidavits showing the Statute is enforced; indeed, it is the very authority relied on by the Department whenever it asks the Plaintiffs to "move along." See Ahearn Decl. P 10; see also McClellan Decl. P 12; Bluszcz Decl. P 8.

 Standing is, of course, a "threshold question in every federal case," mandated by Article III's jurisdictional requirement of a justiciable case or controversy between a plaintiff and a defendant. Warth v. Seldin, 422 ...

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