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IRISH LESBIAN & GAY ORG. v. GIULIANI

March 14, 1996

THE IRISH LESBIAN AND GAY ORGANIZATION, Plaintiff, against RUDOLPH W. GIULIANI, in his official capacity as Mayor of the City of New York, WILLIAM J. BRATTON, in his official capacity as Police Commissioner of the City of New York, and THE CITY OF NEW YORK, Defendants, NEW YORK COUNTY BOARD OF THE ANCIENT ORDER OF HIBERNIANS, Defendant-Intervenor.


The opinion of the court was delivered by: KOELTL

 JOHN G. KOELTL, District Judge:

 Plaintiff Irish Lesbian and Gay Organization ("ILGO") brings this action against New York City, its Mayor ad its Police Commissioner (collectively "the City") challenging the denial of ILGO's application for a permit to conduct a parade on March 16, 1996 prior to the annual St. Patrick's Day Parade (the "Parade") conducted by the New York County Board of the Ancient order of Hibernians (the "AOH"). Specifically, ILGO's permit application sought approval for a group of 1,500 to 2,000 people to march north along Fifth Avenue from 42nd Street to 86th Street--the same route as AOH's parade--starting at 9:30 a.m. Judge John F. Keenan of this Court denied a similar challenge to the City's refusal to grant a substantially similar permit to ILGO last year. See Irish Lesbian and Gay Org. v. Bratton, 882 F. Supp. 315 (S.D.N.Y.) ("ILGO 1995"), aff'd, 52 F.3d 311 (2d. Cir. 1995) (table).

 ILGO contends that Section 10-110 of the Administrative Code of the City of New York, the provision under which the City purportedly considered and denied ILGO's application, violates the First and Fourteenth Amendments to the United States Constitution both on its face and as applied to ILGO in this instance. ILGO also asserts violations of Article I, Sections 8 and 11 of the New York State Constitution. Seeking injunctive and declaratory relief under 42 U.S.C. § 1983 and 28 U.S.C. § 2201 respectively, ILGO filed the Complaint and brought on a Motion for Preliminary Injunction by Order to Show Cause dated February 26, 1996. The Court denied ILGO's motion for expedited discovery, brought by the same order to Show Cause, as well as the City's two applications to transfer this case to Judge Keenan and to entertain an interim motion to dismiss prior to consideration of the preliminary injunction motion. See Irish Lesbian and Gay Org. v. Giuliani, No. 96 Civ. 1398, 1996 U.S. Dist. LEXIS 3108, 1996 WL 91633 (S.D.N.Y. Mar. 2, 1996). Shortly before the hearing on ILGO's motion for a preliminary injunction, AOH moved to intervene and served papers in opposition to the motion, and ILGO submitted papers in response. The Court granted AOH's motion to intervene at the beginning of the hearing Monday, March 11, 1996.

 FINDINGS OF FACT

 1. The St. Patrick's Day Parade is an annual event held in New York for over two hundred years. Traditionally, the Parade begins at 44th Street in the late morning and proceeds north along Fifth Avenue to 86th street. The Parade is usually held on March 17th, the date of the Feast of St. Patrick, unless the 17th falls on a Sunday, as it does this year. Under such circumstances, the Parade is held on the preceding Saturday instead.

 2. In recent years, the Parade has attracted over 150,000 participants and more than a quarter-million spectators. It is one of the largest parades in New York City. This year's parade will require about 2,000 police personnel, and the assistance of other city agencies such as Emergency Medical Services, the Department of Sanitation, and the Department of Transportation.

 3. ILGO describes itself as a group of lesbians and gay men of Irish descent who formed a group in 1990 to create "a safe and comfortable forum for Irish lesbians and gay men to discuss and address [their] social, cultural and political needs." (Affidavit of Anne Maguire, sworn Feb. 23, 1996, P 2; see Maguire Test., Tr. at 9-10.)

 4. Since its inception, ILGO has made repeated efforts to participate in the St. Patrick's Day Parade in New York City. (Maguire Aff., PP 3, 4, 9-25; Maguire Test., Tr. at 28-34.) None of ILGO's legal challenges have met with success. See ILGO 1995, 882 F. Supp. 315; New York County Bd. of Ancient Order of Hibernians v. Dinkins, 814 F. Supp. 358 (S.D.N.Y. 1993) (Duffy, J.); Irish Lesbian and Gay Org. v. New York State Bd. of Ancient Order of Hibernians, 788 F. Supp. 172 (S.D.N.Y. 1992) ("ILGO 1992") (Leval, J.).

 5. In the 1992 and 1993 challenges, ILGO sought injunctive relief that would require the City to permit the group to march as a unit in the St. Patrick's Day Parade itself. Judges Leval and Duffy, respectively, denied ILGO's applications. The reasoning of these two decisions anticipated that of the Supreme Court in Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 132 L. Ed. 2d 487, 115 S. Ct. 2338 (1995).

 6. In 1995 ILGO brought an Article 78 petition in New York Supreme Court to compel the New York Police Department ("NYPD") to issue ILGO a permit to conduct its own parade at 8:30 a.m. on the same day, Friday, March 17, 1995, and along the same route as the 1995 St. Patrick's Day Parade. The petition was removed to federal court, and Judge Keenan denied the injunction and dismissed the complaint. See ILGO 1995, 882 F. Supp. at 321.

 7. The 1996 Parade is scheduled for Saturday, March 16, 1996 at 11:00 a.m. along its traditional route. The AOH, the sponsor of the Parade, received a permit to conduct this year's parade on February 23, 1996. (See Pl.'s Ex. 3; Defs.' Ex. 4.)

 8. On or about October 11, 1995, ILGO submitted to the City its application for a parade permit for a group of 1,500 to 2,000 people to march north along Fifth Avenue from 42nd Street to 86th Street starting at 9:30 a.m. on March 16, 1996. (Maguire Aff. Ex. B.; Defs.' Ex. 5.)

 It is undisputed that the ILGO parade would take place on the same day, along the same route, on the same street, and for the same distance as the St. Patrick's Day Parade. The only difference is that ILGO's parade would begin at 9:30 a.m., and the St. Patrick's Day Parade is scheduled to begin at 11:00 a.m. Nevertheless, it is clear that the necessary preparations for the St. Patrick's Day Parade will overlap the parade ILGO wants to conduct in both time and location.

 10. According to John T. Dunleavy, Chairman of the AOH Parade Committee, (see Affidavit of John T. Dunleavy, sworn Mar. 9, 1996), and the testimony of Lieutenant Dennis J. Cirillo, the commanding officer of the Manhattan South Operations Unit of the NYPD in charge of planning and preparation of parades and demonstrations, (Cirillo Test., Tr. at 241-57), preparation for the March 16, 1996 St. Patrick's Day Parade includes the following, (see also Defs.' Exs. 7, 9),:

 
a. At 7:00 a.m. 51st Street is closed to traffic from Madison Avenue to Fifth Avenue.
 
b. At 7:30 a.m. the streets from 44th to 48th Streets are closed to traffic from Sixth Avenue to either Vanderbilt Avenue or Park Avenue. The various parade participants use these streets as formation areas prior to the Parade.
 
c. At 8:00 a.m. pedestrian barricades are erected around St. Patrick's Cathedral to facilitate the flow of people in and out of the Cathedral.
 
d. Prior to the Mass at the Cathedral, at about 7:45 a.m., the 400-500 members of the 69th Regiment of the National Guard marches from a staging area at 39th Street north along Fifth Avenue to the Cathedral. The Mass begins at approximately 8:30 a.m.
 
e. Parade spectators begin to arrive at or near the parade route starting from about 9:00 a.m. continuing throughout the morning.
 
f. At. At about 9:15 a.m. Fifth Avenue is closed to traffic from 41st Street to 57th Street. At the conclusion of the Mass, at approximately 9:15 a.m., the 69th Regiment reassembles outside of the Cathedral at 51st Street on Fifth Avenue and marches south to their staging area at 39th Street. Fifth Avenue is reopened to traffic at the conclusion of this march at approximately 9:45 a.m.
 
g. Other attendees from the Mass who may be dignitaries participating in the Parade proceed south along Fifth Avenue to the formation area at 44th Street. Others proceed north toward the official reviewing stand at 64th Street.
 
h. Throughout the remainder of the morning, parade participants assemble in prearranged locations at the formation streets from 44th Street to 48th Street.
 
i. At about 9:45 a.m. barricades are erected along the entire parade route from 44th Street to 86th Street on Fifth Avenue.
 
j. At 10:00 a.m. pedestrian chutes are erected at several locations along the parade route to facilitate pedestrian traffic crossing Fifth Avenue until the conclusion of the Parade.
 
k. At 10:30 a.m. 50th Street is closed to all traffic except crosstown city busses. Fifth Avenue is again closed to all traffic and the streets between Madison Avenue and Central Park from 60th Street to 85th Street are closed as well.
 
l. At 10:45 the 69th Regiment begins to march north from their staging area at 39th Street. The Regiment pauses at 44th Street until 11:00 a.m. and then proceeds up Fifth Avenue followed by the parade participants who have assembled in the formation areas in the streets off Fifth Avenue.

 11. The City denied ILGO's permit request on February 13, 1996. The City explains that the permit was denied because two parades cannot be conducted at the same location on the same day at the same time. The City maintains that allowing, two simultaneous parades would create unacceptable levels of traffic congestion and impose unmanageable burdens on police, sanitation, and emergency medical services.

 12. The NYPD copy of ILGO's permit application bears two endorsements. The first is by Assistant Chief Allan H. Hoehl, dated January 25, 1996, prepared by Cirillo as denoted by the initials "DJC" appearing at the lower left. The endorsement reads in relevant part: "Contents noted. There is an annual event scheduled for this date in Patrol Borough Manhattan South on Fifth Avenue. Recommend DISAPPROVAL." (Defs.' Ex. 5, p. 2.)

 13. The second endorsement to the ILGO permit application is signed by Assistant Chief Nicholas Estavillo, dated February 13, 1996, and reads in relevant part: "Contents noted. After conferral with Patrol Borough Manhattan South, due to the St. Patrick's Day Parade on the same route, this permit is DENIED." (Defs.' Ex. 5, p. 3.)

 14. The City maintains that is has an administrative practice of not allowing two parades at the same place and time. There is credible and convincing evidence to support the existence of such a policy.

 15. Lieutenant Cirillo, the officer with immediate responsibility for processing parade permit applications at Patrol Borough Manhattan South, testified that the first step in evaluating an application is to determine whether there are conflicting events. (Cirillo Test., Tr. at 215-16.) Cirillo explained that only one permit is issued for a parade at a given place and time. (Cirillo Test., Tr. at 219-21, 274, 276.) Cirillo further testified that he has eight years of experience reviewing parade permit applications and has processed about 500 applications. (Cirillo Test., Tr. at 215.) Yet Cirillo could recall only one incident when two applicants were granted permits to conduct parades even approaching the same time and place. (Cirillo Test., Tr. at 219-21.) Cirillo recalled that, in that instance, the two parade routes overlapped by only three blocks and the parades were scheduled with a two-hour delay between the dispersal time of the first and the starting time of the second. (Cirillo Test., Tr. at 296-97.) Nevertheless, Cirillo testified, the traffic and logistical problems were unmanageable, and he would not recommend even that approval again. (Cirillo Test., Tr. at 225-26.) Cirillo reaffirmed that NYPD policy at Patrol Borough Manhattan South was to allow only one parade at a given place and time. Cirillo Test., Tr. at 274.)

 16. Lieutenant Sam Centamore, supervisor of the parade section of the NYPD Office of the Chief of Department, Investigation Review Section, and Cirillo's immediate supervisor, also testified that two permit applications requesting a parade for the same time, date, and location are recommended for disapproval. (Centamore Test., Tr. at 99-100, 115.) Centamore testified about several permit applications nearing endorsements denying the permit because of conflicts with other scheduled events. (Centamore Test., Tr. at 106-10; see Defs.' Exs. 12-14, 17-18.) Centamore explained that the reason for not granting two groups a parade permit for the same ...


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