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TURLEY v. NEW YORK CITY POLICE DEP'T

August 22, 1997

ROBERT TURLEY, Plaintiff, against NEW YORK CITY POLICE DEPARTMENT and NEW YORK CITY DEPARTMENT OF PARKS AND RECREATION, RAYMOND KELLY, in his official capacity, and BETSY GOTBAUM, WILLIAM F. DALTON, ALEXANDER R. BRASH, MICHAEL FOX, KEVIN DOUGHERTY, and RAYMOND SPINELLA, in their individual and official capacities, Defendants.


The opinion of the court was delivered by: SCHEINDLIN

 SHIRA A. SCHEINDLIN, U.S.D.J. :

 I. Introduction

 Plaintiff, a self-proclaimed street musician, challenged New York City's scheme for regulating the use of amplifiers in public spaces as violative of his rights under the First and Fourteenth Amendments to the United States Constitution and the New York State Constitution. Plaintiff also challenged the Parks Department's permit scheme for the performance of music in New York City parks as violative of his free speech and equal protection rights. In addition, plaintiff asserted that the Police and Parks Departments' seizure of street musicians' instruments, sound amplifiers, and other equipment was an unlawful prior restraint on speech in violation of the First Amendment. Finally, plaintiff challenged the constitutionality of New York City's General Vendor Law, N.Y.C. Admin. Code §§ 20-452, et seq., which provides that vendors of items other than written matter must obtain a vending license prior to selling their goods in a public space.

 After a six-day trial, a jury found the defendants ("the City" or "defendants") liable on several grounds. Defendants now move to strike certain special verdict responses. Defendants also move, pursuant to Fed. R. Civ. P. 59, for a new trial on the issue of the reasonableness of the decibel ceiling placed on plaintiff's sound device permits, which the jury found to be unreasonably low.

 Plaintiff moves for several forms of relief: (1) for a new trial under Rule 59 on two issues for which the jury did not find liability, namely, whether the current fees for sound device permits exceed the relevant processing cost, and whether defendants Raymond Spinella and Kevin Dougherty are individually liable; (2) to set aside the jury's damage award as unreasonably low; (3) for prejudgment interest; (4) for a permanent injunction pursuant to Fed. R. Civ. P. 65; and (5) to vacate a portion of this Court's March 4, 1996 Order pursuant to Fed. R. Civ. P. 60(b).

 II. Defendants' Motion to Strike

 During deliberations, the jury devised and requested the addition of several questions to the special verdict sheet. Not surprisingly, the jury answered each of its own questions in the affirmative. Taken together, these questions constituted a finding that the City had selectively enforced aspects of § 10-108 against plaintiff -- namely, a "single event" restriction *fn1" and the 75 decibel limit. The City now moves to strike the answers to the special verdict questions posed by the jury because a selective enforcement claim was precluded based on the prior dismissal of plaintiff's equal protection claims.

 The Court of Appeals has said that selective enforcement "is lodged in a murky corner of equal protection law in which there are surprisingly few cases. . . ." LeClair v. Saunders, 627 F.2d 606, 608 (2d Cir. 1980); LaTrieste Restaurant and Cabaret Inc. v. Village of Port Chester, 40 F.3d 587, 590 (2d Cir. 1994)(citing LeClair). A violation of equal protection based on selective enforcement arises if:

 
(1) the person, compared with others similarly situated, was selectively treated; and (2) that such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person.

 Id. (citing LeClair, 627 F.2d at 609-10). Thus a selective enforcement claim is an equal protection claim, rather than a First Amendment claim. See Sanjour v. E.P.A., 312 U.S. App. D.C. 121, 56 F.3d 85, 92 n.9 (D.C. Cir. 1995)(citing LeClair)("'selective enforcement' is not . . . a First Amendment cause of action" but an equal protection cause of action).

 The City's motion to strike must be granted for several reasons. First, in his Opinion and Order of March 4, 1996, Judge Allen G. Schwartz granted the City's motion for summary judgment on each of plaintiff's equal protection claims with the exception of his claim involving the Parks Department's permit policy. *fn2" Therefore, no equal protection claim was pending when the jury found liability on equal protection grounds.

 Furthermore, the jury received no charge regarding a claim of selective enforcement. Federal Rule of Civil Procedure 49(a) provides that "the court shall give to the jury such explanation and instruction concerning the matter thus submitted as may be necessary to enable the jury to make its findings upon each issue." Fed. R. Civ. P. 49(a). Because the jury was not instructed on the elements of the selective enforcement claim, and because no equal protection claim remained in the case, the jury's answers to questions 9a, 10a, 11a, 25a, 26a, 27a, 28a, and 29a are stricken. As a result, the damage award for the "selective enforcement claims" in the amount of $ 14,630 is vacated. *fn3"

 III. Motions for a New Trial under Rule 59

 A. Legal Standard

 A motion for a new trial under Fed. R. Civ. P. 59 should be granted when "the jury has reached a seriously erroneous result or . . . the verdict is a miscarriage of justice." Song v. Ives Laboratories, Inc., 957 F.2d 1041, 1047 (2d Cir. 1992) (quoting Smith v. Lightning Bolt Productions, Inc., 861 F.2d 363, 370 (2d Cir. 1988)). When a party moves for a new trial on the ground that the jury's verdict is against the weight of the evidence, a court can weigh all of the evidence adduced at trial and "need not view it in the light most favorable to the verdict winner." Id.

 B. Defendants' Motion -- The 75 Decibel Ceiling

 Pursuant to New York City Administrative Code § 10-108, which authorizes the Police Department to set a maximum volume for sound amplification devices, the Police Department placed a 75 decibel at six feet limit on plaintiff's permits for the Times Square area. The jury found that this 75 decibel limit was unreasonably low. Defendant now challenges that determination as seriously erroneous and contrary to the weight of the evidence.

 In support of its motion the City highlights the testimony of its expert who indicated that the average decibel level from ambient sound in the Times Square area was approximately 70 to 71 decibels. See Tr. 777-791, 450-52, 467-68. Plaintiff's expert, Alan Fierstein, on the other hand, testified that the ambient sound level often rose to above 80 decibels. Tr. 454. Mr. Fierstein, an acoustical consultant, testified that

 
in order for music to be listened to and properly appreciated you have to have a 15 to 20 signal to noise ratio. By that I mean the difference between the sound of the music and the sound of the ambient traffic.

 Tr. 455. Thus, even if the average ambient sound level in Times Square does not exceed 71 decibels, the jury could reasonably have concluded that the 75 decibel limit placed on plaintiff's sound device permits was unreasonable. By crediting this expert testimony, the jury could reasonably conclude that plaintiff's music would not be heard in the Times Square area when the difference between the "signal" -- his music played at 75 decibels at six feet -- and the "noise" -- an ambient sound level of 71 decibels -- is only 4 decibels.

 The City also points to testimony from John Codiglia, Commanding Officer of the Manhattan South Task Force, as support for the reasonableness of the 75 decibel limit. Captain Codiglia testified that the officers of Manhattan South Precinct (of which Times Square is a part) do not charge permit holders with violating the permit ceiling unless the sound produced by the permit holder exceeds the measurement of ambient noise by at least 10 decibels. Tr. 800-10. Therefore, according to Captain Codiglia, if the ambient sound level in Times Square were 70 decibels, the permit holder would not be charged with violating a 75 decibel ceiling in his or her permit unless he or she played louder than 80 decibels. The City contends that this practice supports the reasonableness of the 75 decibel ceiling. While the ...


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