see, e.g., Distribution Sys. of Am., Inc. v. Village of Old Westbury, 862 F. Supp. 950, 956-57 (E.D.N.Y. 1994); Blue Sky Entertainment, Inc. v. Town of Gardiner, 711 F. Supp. 678, 686 (N.D.N.Y. 1989); Hoetzer v. County of Erie, 497 F. Supp. 1207, 1211 (W.D.N.Y. 1980), and is hereby rejected by this court.
Defendants also claim that the instant case is not ripe for adjudication because, unless and until plaintiffs are penalized for violating the Local Law, they have not suffered any "real harm." However, it is well settled in this Circuit that plaintiffs need not "'await the consummation of threatened injury to obtain preventative relief.'" Valmonte v. Bane, 18 F.3d 992, 999 (2d Cir. 1994) (quotation omitted). Rather, a "claim is ripe if the perceived threat due to the putatively illegal conduct of the [defendants] is sufficiently real and immediate to constitute an existing controversy." Id. Plaintiffs have clearly satisfied this standard. Accordingly, the issues in this case are fit for judicial determination.
Personal Immunity Defenses
Personal immunity defenses such as absolute legislative immunity and qualified immunity only protect defendants acting in their individual capacities. See, e.g., Hafer v. Melo, 502 U.S. 21, 25, 116 L. Ed. 2d 301, 112 S. Ct. 358 (1991); Kentucky v. Graham, 473 U.S. 159, 166-67, 87 L. Ed. 2d 114, 105 S. Ct. 3099 (1985). Since plaintiffs have withdrawn their claims against defendants Mower and Hughes in their individual capacities, defendants' claims that these defendants are entitled to absolute legislative immunity and/or qualified immunity are moot. In addition, "there is no longer a need to bring official-capacity actions against local government officials, for under Monell3 . . . local government units can be sued directly for damages and injunctive or declaratory relief." Graham, 473 U.S. at 167 n.14 (footnote added). As a result, plaintiffs' claims against defendants Mower and Hughes in their official capacities are hereby dismissed as redundant. See Rini v. Zwirn, 886 F. Supp. 270, 281-82 (E.D.N.Y. 1995); Orange v. County of Suffolk, 830 F. Supp. 701, 706-07 (E.D.N.Y. 1993).
It is well settled "that a municipality is liable for the unconstitutional acts of its legislature even though the legislators themselves are protected by absolute immunity." Warner v. Orange County Dep't of Probation, 95 F.3d 202, 210 (2d Cir. 1996). See also Goldberg v. Town of Rocky Hill, 973 F.2d 70, 74 (2d Cir. 1992. As the complaint in this case challenges the constitutionality of the Local Law, plaintiffs have clearly stated a cognizable claim against the Town.
Defendants' claim that plaintiffs have failed to state a cause of action against the Town misinterprets the applicable law. Defendants' argument in this regard is based upon the so-called "failure to train" theory of municipal liability, see, e.g., City of Canton v. Harris, 489 U.S. 378, 103 L. Ed. 2d 412, 109 S. Ct. 1197 (1989), which is not applicable to the instant case.
First Amendment Claims
Plaintiffs' complaint alleges that the Local Law violates their First Amendment rights of free association, free speech and free exercise of religion.
A. Freedom of Association
The mere fact that a government action has an inhibiting effect on a protected form of association does not necessarily mean that it runs afoul of the First Amendment.
See, e.g., Fighting Finest, Inc. v. Bratton, 95 F.3d 224, 228 (2d Cir. 1996). "Though such inhibiting conduct might make it more difficult for individuals to exercise their freedom of association, this consequence does not, without more, result in a violation of the First Amendment. To be cognizable, the interference with associational rights must be 'direct and substantial' or 'significant.'" Id.
In Fighting Finest, Inc., a group of New York City police officers who had formed a boxing team ("FFI") that fought in the name of the New York City Police Department ("NYPD") challenged the Police Commissioner's decision to withdraw the NYPD's official recognition of FFI, prohibit FFT from identifying its activities with the NYPD in any way, and bar FFI from posting any notices of upcoming FFI events on NYPD premises. Id. at 226-27.
In affirming the district court's dismissal of the plaintiffs' freedom of association claim, the Second Circuit found it significant that the Commissioner's actions did not "prevent" the plaintiffs from associating together or significantly burden their ability to do so, and that the plaintiffs did not allege that the Commissioner's actions caused them to suspend, or even curtail, their associational activities. Id. at 228. Simply stated, the Court found that although the plaintiffs arguably would be "better off" if FFI received official NYPD recognition, "the First Amendment does not compel government to facilitate the ease with which an individual may exercise associational rights." Id.
In the instant case, as in Fighting Finest, Inc., defendants' actions do not "directly and substantially interfere" with plaintiffs' associational rights. Although the Local Law undoubtedly makes access to the Magic Meadow less convenient for plaintiffs on full moon evenings, it neither prevents full moon gatherers from associating together nor significantly burdens their ability to do so. In addition, plaintiffs have not alleged that the Local Law has caused them to suspend, or even curtail, their associational activities.
Accordingly, plaintiffs' freedom of association claim is hereby dismissed.
B. Freedom of Speech
Plaintiffs' freedom of speech claim stands upon the same footing as their freedom of association claim. In other words, although the Local Law undoubtedly makes access to the Magic Meadow less convenient for plaintiffs on full moon evenings, it neither prevents full moon gatherers from engaging in protected forms of speech nor significantly burdens their ability to do so.
Accordingly, plaintiffs freedom of speech claim is also dismissed.
C. Free Exercise of Religion
A law that burdens a particular religious practice, like a law that has an inhibiting effect on a protected form of speech or association, does not automatically violate the First Amendment. See, e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 124 L. Ed. 2d 472, 113 S. Ct. 2217 (1993); Employment Div. v. Smith, 494 U.S. 872, 108 L. Ed. 2d 876, 110 S. Ct. 1595 (1990). While "a law targeting religious beliefs as such is never permissible" Church of the Lukumi Babalu Ave, Inc., 508 U.S. at 533; see generally Braunfeld v. Brown, 366 U.S. 599, 607, 6 L. Ed. 2d 563, 81 S. Ct. 1144 (1961) (if the purpose of a law is to impede the observance of a particular religion, the law is unconstitutional "even though the burden may be characterized as being only indirect"), a law that has the incidental effect of burdening religion will ordinarily be upheld as long as it is "neutral" and "of general applicability."
See Church of the Lukumi Babalu Ave, Inc., 508 U.S. at 531. "Neutrality and general applicability are interrelated, and . . . failure to satisfy one requirement is a likely indication that the other has not been satisfied." Id.
In deciding whether a challenged law is neutral:
Facial neutrality is not determinative. The Free Exercise Clause, like the Establishment Clause, extends beyond facial discrimination. The Clause "forbids subtle departures from neutrality," and "covert suppression of particular religious beliefs." Official action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality. The Free Exercise Clause protects against governmental hostility which is masked as well as overt.
Id. at 534 (quotations omitted).
Similarly, whether a challenged law is generally applicable is not always readily apparent.
All laws are selective to some extent, but categories of selection are of paramount concern when a law has the incidental effect of burdening religious practice. The Free Exercise Clause "protects religious observers against unequal treatment," and inequality results when a legislature decides that the governmental interests it seeks to advance are worthy of being pursued only against conduct with a religious motivation.
Id. at 542-43 (quotation omitted).
A law that fails to satisfy either of these requirements is subjected to strict scrutiny, pursuant to which the law "must be justified by a compelling governmental interest and must be narrowly tailored to advance that interest." Id. at 531-32. History has shown that a challenged law will survive such scrutiny "only in rare cases." Id. at 546.
In the instant case, if plaintiffs can demonstrate that defendants' motivation in enacting the Local Law was to impede plaintiffs' observance of their religion, then the Local Law is unconstitutional. See id. at 533; Braunfeld, 366 U.S. at 607. In any event, since defendants' motivation in enacting the Local Law is hotly contested by the parties, this issue can only be determined after the finder of fact has had an opportunity to evaluate the parties' credibility. See, e.g., Frank v. Relin, 1 F.3d 1317, 1330 (2d Cir.), cert. denied, 510 U.S. 1012, 126 L. Ed. 2d 569, 114 S. Ct. 604 (1993) ("On a motion for summary judgment, the district court's function is to identify questions of fact, not to decide them. Nor may the court make credibility assessments; those assessments are to be made by the finder of fact."); Patrick, 745 F.2d at 159.
In addition, genuine issues of material fact exist, precluding summary judgment, with regard to whether the Local Law is neutral and/or generally applicable. Simply stated, plaintiffs are entitled to explore questions such as why the Local Law, which restricts parking in over forty locations throughout the Town, only restricts parking from "sunset to sunrise" in one location (i.e., along the Road).
Accordingly, defendants' motion is denied with regard to plaintiffs' free exercise of religion claim.
RFRA provides that government may only substantially burden a person's right to exercise his/her religion if the burden to the person (a) furthers a compelling governmental interest, and (b) is the least restrictive means of furthering said interest, even if the burden results from a neutral law of general applicability. See 42 U.S.C. § 2000bb-1.
At first glance, RFRA appears to be more protective of religious freedom than the Free Exercise Clause of the First Amendment.
However, unlike a plaintiff alleging a Free Exercise Clause violation, "a plaintiff alleging a violation of RFRA must demonstrate that his right to the free exercise of religion has been substantially burdened." Jolly, 76 F.3d at 476 (emphasis added). "[A] substantial burden exists where the state 'puts substantial pressure on an adherent to modify his behavior and to violate his beliefs.'" Id. at 477 (quotation omitted). See also Mack v. O'Leary, 80 F.3d 1175, 1178 (7th Cir. 1996) (examining various courts' treatment of the issue of what constitutes a "substantial burden" under RFRA); Hicks v. Garner, 69 F.3d 22, 26 n.22 (5th Cir. 1995) (same).
Simply stated, plaintiffs cannot satisfy this standard. Defendants clearly have not put substantial pressure on plaintiffs to modify their behavior and to violate their beliefs. See Jolly, 76 F.3d at 477. Nor have defendants forced plaintiffs to either abandon one of the precepts of their religion or choose between following the precepts of their religion and forfeiting benefits. See id. Rather, as noted above, while the Local Law undoubtedly makes access to the Magic Meadow less convenient for plaintiffs on full moon evenings, it neither prevents full moon gatherers from practicing their religion nor significantly burdens their ability to do so. In addition, plaintiffs have not alleged that the Local Law has caused them to suspend, or even curtail, their religious activities.
Accordingly, plaintiffs' RFRA claim is hereby dismissed.
Although plaintiffs' complaint alleges that defendants have violated their Ninth Amendment right to liberty, as well as their rights to equal protection and substantive due process under the Fifth and Fourteenth Amendments, plaintiffs have utterly failed to demonstrate any basis, either legal or factual, for such claims. Notably, plaintiffs' memorandum of law in opposition to defendants' motion fails to cite a single case in support of any of these claims.
Accordingly, these claims are hereby dismissed.
Finally, plaintiffs' claim for punitive damages is dismissed sua sponte on the ground that the Town is the sole remaining defendant in this action, and punitive damages are not available under § 1983 against a municipality.
See, e.g., Graham, 473 U.S. at 167 n.13.
For the reasons stated above, it is hereby
ORDERED, that defendants' motion to dismiss and/or for summary judgment is granted in part and denied in part, in accordance with this Memorandum-Decision and Order; and it is further
ORDERED, that the complaint is dismissed as against defendants Mower and Hughes; and it is further
ORDERED, that all of plaintiffs' claims are dismissed with the exception of their free exercise of religion claim.
DATED: October 31, 1996
Albany, New York
Ralph W. Smith, Jr.
United States Magistrate Judge