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March 25, 1999


The opinion of the court was delivered by: Chin, District Judge.


Defendants move for partial summary judgment. Because genuine issues of material fact exist for trial, defendants' motion is denied.


A. The Facts

Construed in the light most favorable to plaintiff, the facts are as follows:

Lederman is an artist who displays and sells his work on the sidewalks of Manhattan, primarily in the SoHo section of lower Manhattan. (Orsland Decl.Ex. C at 31-34). He is also the president of A.R.T.I.S.T., which advocates for the First Amendment right of artists to display and sell their art. (Id. at 42; Am.Compl. ¶ 9). Lederman and other artists formed A.R.T.I.S.T. in 1994 when police began enforcing a New York City general vending ordinance by arresting artists who displayed and sold their art on the street without a license. (Am.Compl. ¶ 3). Lederman was thereafter arrested on three occasions in connection with his advocacy activities.

1. The Administrative Code

The New York City Administrative Code (the "Code") contains regulations governing street vendors. The Code, for example, restricts the locations on the sidewalk where vendors may sell their merchandise. New York, N.Y.Code ("N.Y.Code") § 20-465.*fn1 In addition, § 20-453 of the Code requires vendors to obtain a license. Until October 10, 1996, street artists were covered by these regulations.*fn2 Artists therefore were not permitted to sell their artwork on the street without a license. Artists were permitted, however, to display their artwork on the street provided that they did not sell or offer to sell it. (Upton Affirm.Ex. J).

In 1994, Lederman filed two actions in the Southern District of New York against the City of New York (the "City") challenging the constitutionality of the requirement that artists obtain a vending license. Bery v. City of New York, 94 Civ. 4253; Lederman v. City of New York, 94 Civ. 7216. The district court denied plaintiffs' motion to enjoin enforcement of the general vending laws against street artists. On October 10, 1996, however, the Second Circuit ruled that the provision was unconstitutional as applied to street artists. Bery v. City of New York, 97 F.3d 689, 698 (2d Cir. 1996), cert. denied, 520 U.S. 1251, 117 S.Ct. 2408, 138 L.Ed.2d 174 (1997). The court held that appellants' artwork was "entitled to full First Amendment protection." Id. at 696. While the court recognized that the City "had a significant interest in keeping its public spaces safe and free of congestion," the court held that appellants were entitled to a public forum for their expressive activities, and that the City could not bar all street art sales when less restrictive regulations would suffice. Id. at 697.

  2. Community Pressure to Enforce License Requirement and the
    Formation of A.R.T.I.S.T.

The First Police Precinct (the "First Precinct"), which covers SoHo, receives many complaints from residents and business people of the SoHo community concerning the activities of unlicensed peddlers, including street artists. Those who complain allege that the peddlers draw crowds that congest the neighborhood, pose safety problems, and create unsanitary conditions.

One of the organizations that complains to the First Precinct is the SoHo Alliance, which is a private, volunteer community group. Over the years, a considerable degree of enmity has developed between Lederman and members of SoHo Alliance. Among others who complain of street vending in SoHo to the First Precinct are the local Post Office, Community Board No. 2, and New York City Councilmember Kathryn E. Freed, whose district includes SoHo. Freed testified during her deposition that she also made complaints about street vending to the head of enforcement of consumer affairs and the Office of the District Attorney. (Upton Affirm.Ex. F at 34). Freed complained to the Mayor about the performance of the First Precinct in handling unlicensed vending. (Id. at 51).

Lederman alleges that prior to 1994 artists were generally permitted to sell their artwork without a license. (Lederman Aff. ¶ 3). According to Lederman, the police began arresting and threatening to arrest artists in 1994 because the SoHo Alliance pressured the police to remove the street artists from the neighborhood. (Id. ¶ 4). In response to these arrests, plaintiff and other artists formed A.R.T.I.S.T. to protest what they viewed as an attack on their First Amendment right to sell and display their art. (Id.).

As president of A.R.T.I.S.T., Lederman participated in many demonstrations, issued several press releases, attended community and other meetings, and distributed leaflets. (Id.). When plaintiff witnessed the police harassing or arresting artists for selling their art on the street without a license, he would inform passers-by that the police were arresting artists and explain his opinion that the artists' activities were protected by the First Amendment. (See Orsland Decl.Ex. C at 137). Some of the demonstrations included chants such as "Stop arresting artists." (Lederman Aff. ¶ 7).

Prior to October 10, 1996, Lederman repeatedly displayed and sold his artwork on the street without a license. Lederman alleges that as his reputation as spokesperson for the street artists grew, however, he became the focus of police attention and was therefore more likely than other artists to be threatened, harassed, and arrested. (Id.). Plaintiff claims that he was frequently threatened with arrest while attending public meetings, speaking on the street, or distributing leaflets. (Id.). He further alleges that after an arrest in 1994, a police officer informed him that the Intelligence Division of the NYPD had opened a file on him and was monitoring his activities. (Id. ¶ 9).

3. The Arrests

Lederman alleges that the police unlawfully arrested him because of his advocacy activity. (Compl. ¶ 10). In this case, plaintiff challenges three arrests, which occurred on March 25, 1995, April 28, 1996, and May 11, 1996.

a. March 25, 1995 Arrest

On March 25, 1995 at approximately 5 p.m. in SoHo, Lederman was approached by an artist who told him that another artist, Marika Ley, was being arrested a block away for selling art. (Lederman Aff. ¶ 12). Lederman walked to the location and "saw Ley face down on the pavement with two police officers on top of her." (Id.). Plaintiff immediately began speaking to the crowd about the City's and the NYPD's "policy of arresting artists and selling or destroying the confiscated art." (Id.). He also distributed leaflets to people in the crowd who expressed an interest in additional information. (Id.). According to Lederman, neither he nor any other member of the public interfered with the police, encouraged anyone to interfere with the police, or blocked any vehicular or pedestrian traffic. (Id.).

Defendant Steven Adams, a member of the NYPD, arrived on the scene in a patrol car. (Id. ¶ 14). Adams instructed Lederman to stop distributing leaflets and "jabbed [him] in the chest with his hand several times" telling him to "keep walking." (Id.). Because on prior occasions Adams had instructed Lederman to walk slowly from corner to corner while demonstrating, so as not to obstruct traffic, Lederman began to do so on that day. (Id.). Although Adams returned and again jabbed plaintiff with his hand, instructing plaintiff to stop distributing leaflets, Lederman continued his activity. (Id.).

An ambulance arrived on the scene to transport Ley to the hospital. (Id. ¶ 15). Neither Lederman nor anyone else blocked the ambulance, interfered with the police, or obstructed traffic. (Id.). Several members of the public had been closer than plaintiff to the area of the arrest and the ambulance. (Id.). After the ambulance departed, Adams, without saying anything else to plaintiff, "grabbed [Lederman] by the back of the neck and threw [him] against the side of a car." (Id. ¶ 16). According to Lederman, Adams then instructed two officers to "drag" him to a police car and "throw" him "horizontally head first" into the car. (Id.). Lederman alleges that upon arrival at the precinct, Adams "violently yanked" plaintiff from the car and "pushed and shoved" plaintiff into the precinct, all the while addressing him with expletives and coarse language. (Id. ¶ 17). Plaintiff complains that his neck and back hurt for two weeks after this incident. (Id. ¶ 18).

At the precinct, Adams charged plaintiff with disorderly conduct. (Id. ¶ 17). Lederman was confined in a cell for three hours before he was released. (Id.). On June 20, 1995, Judicial Hearing Officer Maurice Gray found Lederman not guilty of disorderly conduct. (Id. ¶ 20).

b. April 28, 1996 Arrest

On April 28, 1996 at approximately 11:30 a.m., defendant Mary Fasone, another member of the NYPD, approached Lederman and other artists who were displaying their art at Prince Street between Greene and Mercer Streets in SoHo. (Lederman Aff. ¶ 22). When Fasone threatened to arrest the artists for selling art without a license, plaintiff began to inform passers-by about Fasone's activities. (Id.). Plaintiff claims that he photographed Fasone destroying a painting. (Id.).

According to plaintiff, even though he did not interfere with Fasone's actions or obstruct traffic, Fasone arrested him and charged him with disorderly conduct and obstructing governmental administration. (Id.). On October 25, 1996, after Lederman appeared in criminal court several times, the charges were dismissed. (Id. ¶ 23).

During plaintiff's arrest, Fasone and other police officers confiscated plaintiff's artwork, including seventy-five original art prints, and protest signs. (Id. ¶ 22). Thereafter, the NYPD informed Lederman that his art had been destroyed. (Id.). On or about July 18, 1996, plaintiff filed a notice of claim, but the City has failed to make any adjustment or payment. (Compl. ¶ 28).

c. May 11, 1996 Arrest

According to Lederman, on May 11, 1996 at approximately 2 p.m., he was painting at Prince and Mercer Streets in SoHo and had with him paint brushes, a color palette, a rag, and a can of water. (Lederman Aff. ¶ 25). When defendant Joanne Spreen, an NYPD police officer, approached plaintiff,*fn3 plaintiff explained to her that he was painting and that the six paintings he had on display were ...

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