rev'd in part, 516 U.S. 217, 133 L. Ed. 2d 596, 116 S. Ct. 629 (1996).
Moreover, an award of prejudgment interest serves the remedial purposes of § 1983. "The goal of § 1983 is to deter public officials from violating citizens' federal rights and to compensate victims of such official wrongdoing." Weaver v. Brenner, 40 F.3d 527, 532 (2d Cir. 1994). Here, the jury found that the defendants violated plaintiff's First Amendment rights on several grounds. In addition to those grounds, the jury made further findings, now stricken, that plaintiff was singled out for such constitutionally impermissible treatment. While this cannot be considered for purposes of a damages award, I find as an equitable consideration that the evidence supported such a finding.
Plaintiff is therefore entitled to prejudgment interest after a new trial on damages. Although plaintiff suggests that this Court apply the 9% rate of statutory interest authorized under N.Y.C.P.L.R. § 5004, I decline to do so. Plaintiff will instead receive a rate of interest consistent with the interest paid on short term treasury bills as specified in 28 U.S.C. § 1961, which is the most commonly used basis for prejudgment interest in this Circuit. See, e.g., Ingersoll Milling Mach. Co. v. M/V Bodena, 829 F.2d 293 (2d Cir. 1987); Softel, Inc. v. Dragon Med. and Scientific Communications, Ltd., 891 F. Supp. 935, 944 (S.D.N.Y. 1995), aff'd in part, vacated and remanded in part, 118 F.3d 955, 1997 WL 374511 (2d Cir. 1997).
V. Permanent Injunction
A permanent injunction may only be issued after a valid adjudication of the merits of the action. See Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 546 n.12, 94 L. Ed. 2d 542, 107 S. Ct. 1396 (1987)(to justify permanent injunctive relief, plaintiff must show actual success on merits). In addition, to obtain a permanent injunction, "a party must show the absence of an adequate remedy at law and irreparable harm if the relief is not granted." New York State Nat. Org. for Women v. Terry, 886 F.2d 1339, 1362 (2d Cir. 1989). "The equitable remedy is unavailable absent a showing of irreparable injury, a requirement that cannot be met where there is no showing of any real or immediate threat that a plaintiff will be wronged again." City of Los Angeles v. Lyons, 461 U.S. 95, 111, 75 L. Ed. 2d 675, 103 S. Ct. 1660 (1983); see also Farmland Dairies v. McGuire, 789 F. Supp. 1243, 1250 (S.D.N.Y. 1992)("To obtain injunctive relief based on past injury, the plaintiff must show a real and immediate threat that the injury will be continued or repeated.").
Moreover, "following a jury verdict, a court making findings of fact with respect to equitable claims is bound by the jury's findings." Chase Manhattan Bank, N.A. v. T&N plc, 1996 U.S. Dist. LEXIS 15577, 1996 WL 603934 at *1 (S.D.N.Y. Oct. 22, 1996). A court is collaterally estopped from making a determination with respect to equitable relief that is contrary to the jury's findings. See Wade v. Orange Co. Sheriff's Office, 844 F.2d 951, 954 (2d Cir. 1988)(defendant is entitled to have favorable jury decision operate as an estoppel).
Plaintiff requests a permanent injunction: 1) barring Mid-Town North and Mid-Town South Police Precincts from placing a 75 decibel ceiling on plaintiff's sound device permits; 2) requiring Mid-Town North and South to issue plaintiff monthly multi-site permits at a cost not exceeding $ 45; 3)requiring the Parks Department to issue plaintiff special event permits for amplified music at Cherry Hill in Central Park each Saturday and Sunday; and 4) requiring the Parks Department to issue plaintiff special event permits to perform in Duffy Square Park at least two days per week.
Plaintiff's requests for a permanent injunction are denied. As to requests 2, 3, and 4, a permanent injunction is not supported by the jury's findings. Turning first to plaintiff's request for monthly permits, the jury was not asked to determine whether the current five-day limit on sound device permits was unconstitutional, nor was it asked to determine whether the City was obligated to provide monthly permits to plaintiff. In fact, the jury found that the current permit structure was constitutional, at least with respect to cost. Yet plaintiff requests a monthly permit at no more than $ 45, the current cost of a single-day permit. The record does not support the requested relief.
Second, the jury was neither asked to consider nor did it find that plaintiff had a right to play on Cherry Hill itself, but rather found that plaintiff had a right to play amplified music in Central Park. The Parks Department currently allows amplified musical performances at several Central Park locations, including the Naumberg Bandshell. See Declaration of Thomas G. Rozinski, counsel to the New York City Department of Parks and Recreation, dated July 23, 1997, at PP 3, 8. Thus a permanent injunction is not warranted because plaintiff is permitted to play amplified music in Central Park.
Plaintiff contends that other amplified musicians and performers are allowed to perform in close proximity to Cherry Hill, while he is denied access to the same locations. See Affidavit of Robert Turley ("Turley Aff."), dated July 8, 1997, at PP 15-16. Once again, this is a claim of selective enforcement. As discussed above, all of plaintiff's equal protection claims were dismissed or abandoned. If in the future the Parks Department refuses permits to plaintiff while authorizing them for other performers, it runs the risk of a new lawsuit which carefully pleads a claim of selective enforcement. However, in the current posture of this case, the request for a permanent injunction must be denied.
Next, plaintiff requests that the City permit him to play in Duffy Square at least two days per week. Plaintiff has not alleged, however, that he has either applied for or been denied permits to play in Duffy Square Park. In fact, he states that because the Parks Department has refused to issue permits to him for Cherry Hill, he "did not bother re-applying for a special event permit to perform in Duffy Square Park, believing that my application would have been futile . . . ." Turley Aff. at P 17. While plaintiff's sentiment is understandable, it does not provide a basis for a permanent injunction because plaintiff has not shown that he is likely to be refused permits to play in Duffy Square Park. Should plaintiff be denied such permits in the future, he can always apply for injunctive relief at that time.
Finally, plaintiff seeks an injunction prohibiting the City from imposing the 75 decibel limit upon him. The City admits that it has continued to enforce this limit on plaintiff's permits for Times Square pending resolution of the post-trial motions currently before the Court. As the City's motion for a new trial on the reasonableness of the 75 decibel limit has been denied, the City is now obligated to raise the decibel limit on plaintiff's permits for Times Square. The City has in fact conceded that "should the Court deny [its] application for a new trial and enter a judgment in accordance with the jury's verdict, the Police Department will promptly be advised to modify [the 75] decibel limit." Defendants' Memorandum of Law in Opposition at 8. On the basis of that representation, plaintiff does not need a permanent injunction at this time. However, should the City fail to comply with this Court's judgment, plaintiff may renew his application for a permanent injunction.
VI. Rule 60(b)
Plaintiff also seeks relief from the March 4, 1996 Opinion and Order insofar as it granted summary judgment to defendants on plaintiff's claims that the New York City General Vendor Law, Admin. Code §§ 20-452, et seq., on its face and as applied, abridged plaintiff's freedom of speech and denied him equal protection of the laws. Plaintiff also seeks summary judgment on those claims, as well as a new trial on the damages plaintiff sustained by the enforcement of the General Vendor Law against him.
Rule 60(b) provides in relevant part:
On motion and upon such terms as are just, the court may relieve a party . . . from a final judgment, order, or proceeding for . . . mistake, inadvertence, surprise, or excusable neglect . . . . The motion shall be made within a reasonable time, and . . . not more than one year after the judgment, order, or proceeding was entered or taken.
Fed. R. Civ. P. 60(b). Motions to vacate under Rule 60(b) "are addressed to the sound discretion of the district court and are generally granted only upon a showing of exceptional circumstances." Mendell ex rel. Viacom, Inc. v. Gollust, 909 F.2d 724, 731 (2d Cir. 1990), aff'd, 501 U.S. 115, 115 L. Ed. 2d 109, 111 S. Ct. 2173 (1991). What is a "reasonable time" depends upon the facts of each case, and includes "the length and circumstances of the delay and the possibility of prejudice to the opposing party." Montco, Inc. v. Barr (In re Emergency Beacon Corp.), 666 F.2d 754, 760 (2d Cir. 1981).
Plaintiff contends, and defendants essentially concede, that summary judgment on plaintiff's General Vendor Law claims was granted based on a district court opinion reversed by the Court of Appeals. That decision, Bery v. City of New York, 97 F.3d 689 (2d Cir. 1996), cert. denied, 138 L. Ed. 2d 174, 117 S. Ct. 2408 (1997), found that the General Vendor Law violated the First and Fourteenth Amendment rights of visual artists who sought to sell their artwork on New York City streets without a requisite vending license. See Bery, 97 F.3d at 694-98. The Administrative Code limits the number of such licenses to be issued to 853, but exempts persons selling written materials. See Admin. Code §§ 20-453, 20-459, 20-473. The Court of Appeals in Bery found that because of the limited number of licenses available and the lengthy waiting list for licenses, the Bery plaintiffs were effectively prohibited from selling their art in public spaces anywhere in New York City. Bery, 97 F.3d at 697-98. The court concluded that the General Vendor Law was not a reasonable "time, place, and manner" restriction and violated the First Amendment. Id. Because of the licensing exception for vendors of written material, the court found that the vending law deprived the Bery plaintiffs of equal protection as well. Id. at 698. Plaintiff contends that Judge Schwartz's ruling, based on the trial court decision in Bery, now constitutes a "mistake" for purposes of Rule 60(b).
The Court of Appeals has held that a change in decisional law as the result of a reversal by a higher court can be considered a "mistake" for which Rule 60(b) provides a remedy. See Tarkington v. United States Lines Co., 222 F.2d 358 (2d Cir. 1955); see also Schildhaus v. Moe, 335 F.2d 529, 530-31 (2d Cir. 1964)(Friendly, C.J.). However, such relief is only available under very special circumstances, and in particular, if the time for appeal has not yet run. See Schildhaus, 335 F.2d at 531; see also International Controls Corp. v. Vesco, 556 F.2d 665, 669 (2d Cir. 1977). In Tarkington, eleven days after the entry of a judgment based on Circuit law, the Supreme Court released a decision that effectively reversed the Circuit. The plaintiff moved for relief under Rule 60(b) within ten days after the decision. Commenting on the Tarkington decision, Judge Friendly remarked:
Under such circumstances there is indeed good sense in permitting the trial court to correct its own error and, if it refuses, in allowing a timely appeal from the refusal; no good purpose is served by requiring the parties to appeal to a higher court, often requiring remand for further trial court proceedings, when the trial court is equally able to correct its decision in light of the new authority on application made within the time permitted for appeal.