a reasonable, alternative venue for their expressive activity. Id. at 566-67. The Court concluded, therefore, that the protesters, whose activity was not directly related to the use to which the mall was being put, were not protected by the First Amendment from being excluded from the mall. Id. at 564, 570.
The death of the Logan Valley doctrine was announced in Hudgens v. NLRB, 424 U.S. 507, 47 L. Ed. 2d 196, 96 S. Ct. 1029 (1976). Hudgens again presented the Court with union members picketing at a store in a shopping mall. Id. at 509. However, in reviewing its own precedents, the Court reached the conclusion that the effect of the Logan Valley and Lloyd Corp. decisions was to allow mall owners to engage in content discrimination. Id. at 520. Since such discrimination is absolutely prohibited by the First Amendment, the Court concluded that "the constitutional guarantee of free expression has no part to play in a case such as this." Id. at 521.
More recently, the Second Circuit held that "Amtrak is not a governmental actor subject to the strictures of the First Amendment." Lebron v. National R.R. Passenger Corp., 12 F.3d 388, 389 (2d Cir. 1993), cert. granted, 114 S. Ct. 2098, 128 L. Ed. 2d 661 (1994). However, as the above-quoted language indicates, Lebron addresses the applicability only of the First Amendment free speech requirements. See also Id. at 391-92. As the District Court noted in the same case, "whether conduct of a particular entity will be deemed governmental action can vary with the type of action at issue." Lebron v. National R.R. Passenger Corp., 811 F. Supp. 993, 999 (S.D.N.Y.) (Leval, J.), rev'd, 12 F.3d 388, 389 (2d Cir. 1993), cert. granted, 114 S. Ct. 2098 (1994). See also Wahba v. New York University, 492 F.2d 96, 100 (2d Cir.), cert. denied, 419 U.S. 874, 42 L. Ed. 2d 113, 95 S. Ct. 135 (1974) (Friendly, J.) ("We do not find decisions dealing with one form of state involvement and a particular provision of the Bill of Rights at all determinative in passing upon claims concerning different forms of governmental involvement and other constitutional guarantees.").
To what extent, then, has Amtrak invited the general public to enter and remain on the premises of Penn Station? The analysis of the New Jersey Supreme Court makes clear that a court considering the nature of such a public invitation extended by a private property owner must do so in light of the most recent developments in the continuing evolution of our social institutions. In the instant case, the Preamble to Amtrak's Rules of Conduct includes an invitation to the public to use the public areas of Penn Station for "travelling through the station, from one point to another." Penn Station, which is open to the public, is more than just a major transportation facility. In addition to interstate and intrastate rail facilities, Penn Station offers a myriad of services that entice the public to enter and remain in the Station, including restaurants, bars, fast food outlets, newsstands, electronics stores, beeper stores, other commercial establishments, public telephones, and public restrooms. The concourses at Penn Station are laid out and used as walkways to subway stops and provide sheltered access from one part of the City to another.
In a case that is remarkably similar to the one before the court, the New York Court of Appeals described Penn Station as "something of a small, indoor city. These facilities are not places of restricted public access . . . but, rather, large, public areas. . . . Indeed, facilities such as Pennsylvania Station . . . are so public in nature, that they actually invite conduct that could be construed as loitering." People v. Bright, 556 N.Y.S.2d 585 (N.Y. 1988). In other words, Penn Station is so thoroughly connected to, and integrated with, the surrounding neighborhood, that the Station has become a part of downtown New York City. While urban train stations may in the past have been operated as narrowly defined transportation facilities, at least in New York this is no longer the case. Thus, it can readily be argued that, as presently written and applied, Amtrak's invitation to the public to use Penn Station is sufficiently broad to subject the Defendants to a duty to respect the due process rights of all persons who enter the station. As discussed below, Plaintiffs have made an adequate showing, on the hearing of this motion for preliminary injunctive relief, with regard to the individual plaintiffs who are homeless or perceived by Defendants as homeless, for this court to find and conclude that Defendants have failed to fulfil their constitutional obligations with respect to the enforcement of their state police powers.
B. Whether Amtrak's Rules of Conduct are Unconstitutionally Vague.
The principal case in this area is Papachristou v. City of Jacksonville, 405 U.S. 156, 31 L. Ed. 2d 110, 92 S. Ct. 839 (1972) (Douglas, J.). Papachristou addressed the constitutionality of a local vagrancy ordinance that, inter alia, criminalized "persons wandering or strolling around from place to place without any lawful purpose or object, [and] habitual loafers." Id. at 156 n.1. In holding that this ordinance was void for vagueness under the Due Process Clause of the Fourteenth Amendment, see Id. at 162, 165, the Court pointed to two problems with the ordinance. First, such a provision "'fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute.'" Id. at 162. Second, such a provision is prohibited "because it encourages arbitrary and erratic arrests and convictions." Id.
Discussing the second prong of this analysis--the open-ended discretion that vague statutes or ordinances give to the police--the Court noted that such discretion is incompatible with the probable-cause standard for arrests required under the Fourth and Fourteenth Amendments. Id. at 168-69. With regard to the impact of such discretion on the citizenry, the Court spoke poignantly about the effect upon our society's social outcasts:
Those generally implicated by the imprecise terms of the ordinance--poor people, nonconformists, dissenters, idlers--may be required to comport themselves according to the lifestyle deemed appropriate by the Jacksonville police and courts. Where, as here, there are no standards governing the exercise of the discretion granted by the ordinance, the scheme permits and encourages an arbitrary and discriminatory enforcement of the law. It furnishes a convenient tool for "harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure." It results in a regime in which the poor and the unpopular are permitted to "stand on a public sidewalk . . . only at the whim of any police officer." Id. at 170 (citations omitted).
Subsequently, the Supreme Court has emphasized that the second prong of the void-for-vagueness doctrine--the requirement that an ordinance provide law enforcement officials with some "minimal guidelines" for the exercise of their discretion--is the more important factor. See Kolender v. Lawson, 461 U.S. 352, 357-58, 75 L. Ed. 2d 903, 103 S. Ct. 1855 (1983). Put another way, an ordinance will not pass constitutional muster if it "'entrust[s] lawmaking "to the moment-to-moment judgement of the policeman on his beat."'" Id. at 360 (alteration of internal quotation in original). The statute at issue in Kolender, a California anti-loitering provision, was struck down because its requirement that a suspect provide the police with a "'credible and reliable' identification" failed to hem police discretion with the necessary minimal guidelines. Id. at 355-58.
The void-for-vagueness doctrine is also entrenched under New York State constitutional law. People v. Bright, 526 N.Y.S.2d 66, 67 (N.Y. 1988) (alterations of internal quotation in original) addressed the constitutionality of a New York statute that provided that "'[a] person is guilty of loitering when he . . . loiters or remains in any transportation facility, or is found sleeping therein, and is unable to give a satisfactory explanation of his presence."' Bright arose out of applications of this statute in the Long Island Railroad Concourse at Penn Station as well as in the Port Authority Bus Terminal in New York City. Id. In holding that this statute was void under the Due Process Clauses of the Federal and the New York State Constitutions,
the Court of Appeals adopted the same two-pronged analysis articulated in Papachristou and Kolender. See Bright, 526 N.Y.S.2d at 69-70 (citing cases including Papachristou and Kolender). Defining loitering as "the act of remaining about or hanging around a place without any apparent purpose," the court concluded that a statute that prohibits mere loitering, as contrasted with loitering for a specific illegal purpose or loitering in a specific place of restricted access, is void for vagueness. Id. at 70.
Examining the statue before it, the Bright court held that the requirement that a suspect give a "satisfactory explanation of his presence" was unconstitutional because, like the similar provision in Kolender, it vested the police with unchecked discretion. 526 N.Y.S.2d at 71. The court also explicitly rejected the people's argument that Penn Station and the Port Authority Bus Terminal were places of restricted public access. Id. at 72.
Under the void-for-vagueness doctrine, Amtrak's Rules of Conduct cannot stand. The Preamble to these Rules lists among the permissible uses of Penn Station's public areas "traveling through the station, from one point to another." While Amtrak maintains that walking around or "hanging out" in Penn Station hour after hour does not constitute a legitimate business purpose, the Rules neither expressly forbid such conduct, nor define how much time is too much time for a person to spend walking around the Station. Moreover, Amtrak officials acknowledge that enforcement of its vaguely worded Rules is left almost entirely to the discretion of individual Amtrak police officers and supervisors who are given no other written guidelines. This is the very sort of invitation to arbitrary enforcement that the United States Supreme Court and the New York Court of Appeals have held violates Federal and State standards of due process.
Because Amtrak police officers are appointed by the Superintendent of State Police under § 88 of the New York Railroad Law, Defendants do not dispute that they are state agents. See Merola v. National R.R. Passenger Corp., 683 F. Supp. 935, 940-41 (S.D.N.Y. 1988) (holding the proof that Amtrak police officers were appointed under § 88 would establish that these officers were state agents); Evans v. Newton, 382 U.S. 296, 299, 15 L. Ed. 2d 373, 86 S. Ct. 486 (1966) ("When private individuals or groups are endowed by the State with powers or functions governmental in nature, they become agencies or instrumentalities of the State and subject to its constitutional limitations."). Thus, these officers must comply with the same constitutional constraints that would apply to any other state officials attempting to enforce Amtrak's Rules of Conduct for Penn Station.
This court finds that Defendants have, indeed, acted arbitrarily. The homeless have been deemed to merit Defendants' displeasure as evidenced by internal Amtrak documents that define the homeless as "undesireables" and as members of a "criminal class." Plaintiffs' witnesses testified that Amtrak police regularly arrest or eject people solely because those people appear to be homeless or associate with the homeless. These witnesses testified further that, in the course of many of these incidents, the police did not offer any explanations of the involved individuals' alleged misconduct. The Due Process Clause prohibits exactly such state abrogation of the human dignity of the poor members of our body politic.
C. The Impact of Amtrak's Enforcement of its Rules of Conduct on Plaintiffs' Freedom of Movement.
The freedom of travel and movement is a fundamental right protected by the United States Constitution. This right has traditionally been articulated as a right to interstate or international travel. See, e.g., Shapiro v. Thompson, 394 U.S. 618, 629-30, 22 L. Ed. 2d 600, 89 S. Ct. 1322 (1969); Aptheker v. Secretary of State, 378 U.S. 500, 505-06, 12 L. Ed. 2d 992, 84 S. Ct. 1659 (1964); Kent v. Dulles, 357 U.S. 116, 126, 2 L. Ed. 2d 1204, 78 S. Ct. 1113 (1958). Moreover, the Second Circuit has recognized that there is also "a correlative constitutional right to travel within a state." King v. New Rochelle Mun. Hous. Auth., 442 F.2d 646, 648 (2d Cir.), cert. denied, 404 U.S. 863, 30 L. Ed. 2d 107, 92 S. Ct. 113 (1971). While King addressed only travel from one municipality to another, at least one other circuit has recognized a freedom of movement within one's own municipality or community. See Lutz v. City of York, 899 F.2d 255, 268 (3d Cir. 1990). The Supreme Court has pointed to infringement of the freedom of movement within a locality as one of the problems created by the arbitrary law enforcement permitted under unconstitutionally vague statutes. See Kolender, 461 U.S. at 358-60; Papachristou, 405 U.S. at 164 (describing activities including "'wandering or strolling' from place to place' as "historically part of the amenities of life as we have known them. . . . [which] have dignified the right of dissent and have honored the right to be non-conformists and the right to defy submissiveness.").
Where a statute or other provision implicates a fundamental right, a court reviewing that provision must apply an especially stringent standard of vagueness. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499, 71 L. Ed. 2d 362, 102 S. Ct. 1186 (1982). There can be little doubt that Amtrak's Rules of Conduct implicate the constitutional freedom of movement. As noted above, Penn Station is far more than a traditional train station. See also Bright, 526 N.Y.S.2d at 72. It is a large, multipurpose complex that, in addition to transportation, houses numerous shops, restaurants, bars, and public facilities. Moreover, the multiple street entrances to the Station make it very difficult, if not impossible, to truly separate the Station from the other public areas in the surrounding neighborhood. Cf. New Jersey Coalition Against War in the Middle East v. J.M.B. Realty Corp., 138 N.J. 326, 650 A.2d 757, slip op. at 57-58 (N.J. Dec. 20, 1994) (discussing the changing social and institutional role of shopping malls).
The testimony of a number of witnesses confirmed that Amtrak police regularly arrest or eject homeless and dishevelled people from Penn Station without so much as an explanation of what these people were doing wrong. This testimony was to the effect that the involved individuals were arrested or ejected solely because Amtrak police officers perceived that they were homeless or associating with the homeless. Amtrak contends that many of these people were ejected because they had been hanging around in the station for too long. However, for a constitutionally protected freedom to move about in the public areas of one's locale to be at all meaningful, this is the very sort of rationale for police conduct that must be disallowed.
D. Whether Amtrak Police Can Arrest a Person When there is No Evidence That That Person Has Committed or is Committing a Crime.
The petitioner in Thompson v. City of Louisville, 362 U.S. 199, 199-201 & n.3, 4 L. Ed. 2d 654, 80 S. Ct. 624 (1960), was a long-term Louisville, Kentucky resident who was arrested when he was simply waiting in a local cafe. The cafe sold both food and beer. Thompson was on the dance floor dancing by himself when two police officers arrived on a "routine check." When one officer inquired of the cafe's manager, the latter told him that Thompson had been in the cafe for just over thirty minutes, although he had not purchased anything. However, at trial the manager acknowledged that Thompson could have been served something without the manager's noticing. After conversing with the manager, the officer approached Thompson and asked him for his reason for being in the cafe. Thompson responded he was waiting for a bus home. The officer then arrested Thompson for loitering. When, according to the police, Thompson then became argumentative, they added a charge of disorderly conduct.
In finding that Thompson's conviction on both charges violated the Due Process Clause of the Fourteenth Amendment, the Supreme Court relied on the lack of any evidence in the record that Thompson had committed any crime.
With regard to the loitering charge, the Court concluded that under the Kentucky statute Thompson could only have been convicted for having failed to provide a satisfactory account of himself. Id. at 204. The record revealed that Thompson had told the police he was waiting for a bus. Moreover, the cafe manager testified that Thompson was a regular patron who was welcome at the cafe. Id. at 201, 205. The manager testified further that he did not, on the night of Thompson's arrest, object to Thompson's presence, and that Thompson, in fact, had done nothing objectionable. Id. at 205. Thus, the Court concluded that the loitering charge was void. Id.
Similarly, the Court found no evidence to support the charge of disorderly conduct. This conviction had been based solely on the police officer's assertion that Thompson became argumentative when arrested for loitering. Id. The only evidence in the record was that Thompson had simply asked why he was being arrested. Id. at 206. Again, the conviction was dismissed as void. Id.
In one of the Supreme Court's lunch counter cases, Garner v. Louisiana, 368 U.S. 157, 159-61, 7 L. Ed. 2d 207, 82 S. Ct. 248 (1961), petitioners, who were African-American university students, were convicted of disturbing the peace because they had refused to leave "whites only" lunch counters. These convictions rested solely upon the petitioners' "mere presence" at these counters. Id. at 171. In overturning these convictions, the Supreme Court held that the Thompson no-evidence rule applied to the arresting officers, as well as to the courts:
The undisputed evidence shows that the police who arrested the petitioners were left with nothing to support their actions except their own opinions that it was a breach of the peace for the petitioners to sit peacefully in a place where custom decreed they should not sit. Such activity, in the circumstances of these cases, is not evidence of any crime and cannot be so considered either by the police or by the courts. Id. at 174 (footnote omitted).