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
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
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).
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.
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).
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).
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
approached plaintiff,*fn3 plaintiff explained to her that he was
painting and that the six paintings he had on display were ...