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June 12, 2000


The opinion of the court was delivered by: Kimba M. Wood, District Judge.


Plaintiff Metropolitan Council, Inc. is a tenants' advocacy organization that opposes rent increases proposed by the Rent Guidelines Board (the "Board"), the New York City (the "City") agency that sets the maximum annual rent increases for New York's rent-regulated apartments. Plaintiff plans to protest the proposal, and to pressure the City's Mayor to take steps to stop it, by conducting a series of events on Tuesday and Wednesday, June 13-14, 2000, shortly before the proposal is examined at a hearing scheduled for Thursday, June 15. Part of the planned protest involves a vigil near the Mayor's residence, Gracie Mansion, in which participants will lie and sleep on a City sidewalk in order to convey symbolically the homelessness plaintiff contends will be caused if the proposed rent increases are adopted. On June 8, 2000, plaintiff moved for preliminary injunctive relief enjoining the City from preventing vigil participants from lying or sleeping on the City sidewalk, interference plaintiff anticipates because of the City's policy of preventing any person from sleeping on City sidewalks under any circumstances, as well as its past application of this policy to persons lying and sleeping on City sidewalks as part of a political protest.

The City has taken the position that a total ban on sleeping on City sidewalks is justified by its interests in safeguarding sleeping persons from the dangers of public places and in keeping the sidewalks clear of obstructions. The City argues that this ban should apply to the instant vigil, notwithstanding its concession that these sleeping vigil participants will neither be endangered nor obstruct the sidewalk. For the reasons stated more fully below, the Court concludes that under these circumstances, the First Amendment of the United States Constitution does not allow the City to prevent an orderly political protest from using public sleeping as a means of symbolic expression. Although the City maintains that such a conclusion implies that it cannot ever regulate disorderly public sleeping, the Court disagrees in light of the obvious and dramatic differences between the forms of conduct in question. In granting plaintiff's motion for a preliminary injunction, the Court expresses no opinion on and erects no bar to the City's prosecution for disorderly conduct of persons who are vulnerable and/or risk creating obstructions when they sleep prone on a City sidewalk.

I. Background

The facts relevant to this dispute are simple and undisputed. They have been established by affidavits submitted by the parties, all of which were received in evidence at a hearing held on Friday, June 9, 2000; there were no objections, and no party sought to cross-examine the affiants, who were available in the courtroom. The parties also stipulated to a number of facts on the record. (See generally Transcript of June 9, 2000 Hearing Before Hon. Kimba M. Wood in Metropolitan Council, Inc. v. Safir, 00 Civ. 4254(KMW) ("Tr.")).

Plaintiff seeks to hold a three-part protest in the evening of June 13 and the morning of June 14. First, the event will begin with a press conference between 6 p.m. and 8 p.m. in Carl Schurz Park (the "Park"), which abuts Gracie Mansion. Second, at 8 p.m. participants will begin a five-hour vigil in the Park (the "Park phase"), which will involve persons lying on the ground in order to convey symbolically the additional homelessness that plaintiff alleges will result from the rent increases proposed by the Board. There is no dispute as to these two parts of the protest (the press conference and the Park phase of the vigil), both of which will be allowed pursuant to permits issued by the Parks Department.*fn1

The conflict arises from the third phase of the protest, when plaintiff plans for no more than twenty five vigil participants to relocate from the Park (which closes at 1 a.m.) to part of a stretch of sidewalk on the west side of East End Avenue, opposite the Park and Gracie Mansion, and an adjacent portion of the sidewalk along 88th Street (the "sidewalk phase"). Specifically, the protesters will continue lying prone from 1 a.m. to 8 a.m. on the sidewalks adjoining the west side of East End Avenue north of its intersection with 88th Street, and the north side of 88th Street near the intersection. Plaintiff expects and intends that for some amount of this period a substantial number of participants will sleep. (See Tr. at 10.)

The vigil participants will lie side by side, perpendicular to the apartment building on this block, covering no more than half of each sidewalk's width. The sidewalk along East End Avenue is sixteen feet wide; the sidewalk along 88th Street is fifteen feet wide. The protesters have agreed to occupy only 7.5 feet of each sidewalk's width. The protesters will thus leave clear for pedestrian use about half the width of each sidewalk (8.5 feet of width along the East End Avenue side, and 7.5 feet of width along the 88th Street side). The length of the area to be covered by the bodies will not exceed 75 feet (three feet per person). Plaintiff will not block either of the entrances to the apartment building, entrances that are located approximately 60 feet north of the intersection and 170 feet to its west. Plaintiff will regulate the conduct of vigil participants by providing event marshals who will ensure that participants stay within the designated space, coordinate their activities, and respond to any emergencies. During the vigil, its purpose will be communicated by signs and printed literature.

The sidewalks in question are City sidewalks outside the jurisdiction of the Parks Department. The City concedes that no permit is required for a group to gather and demonstrate on a City sidewalk, so long as amplified sound is not used and the demonstration does not involve a parade or procession.*fn2 See N YC. Admin. Code §§ 10-108, 10-110.

The City Police Department has an absolute policy of preventing persons from lying and sleeping on public sidewalks. According to defendants' affiant, the police intervene "whenever a member of the force observes an individual sleeping on the sidewalk or other public thoroughfare" regardless of the reason the person is there;*fn3 the police then give the person a choice between relocation and arrest. (Affidavit of Inspector Stephen H. Friedland ("Friedland Aff.") at ¶¶ 9-10.) The City thus imposes a "general ban on sleeping on the City sidewalks." The City enforces this ban without exception and without any consideration of a sleeping person's intent or the actual effects of his or her conduct in the particular case. (Friedland Aff. ¶¶ 8-9; Tr. at 8.)

The sole asserted legal basis for the City's authority to impose such a ban is section 240.20[5] of the New York State Penal Code, which reads:

A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof:

5. He obstructs vehicular or pedestrian traffic;

The City asserts that a blanket ban on public sleeping furthers the purposes of the statute because (1) individuals sleeping on sidewalks necessarily endanger themselves because of their vulnerability to crime or accidents (from, for example, cars jumping curbs and falling objects), and (2) individuals sleeping on the sidewalk "inherently hamper free movement on and accessibility of the sidewalk." (Friedland Aff. ¶¶ 4-6.)

The City concedes that, notwithstanding its concerns about public sleeping in general, the conduct involved in this protest poses no particular danger to vigil participants and no risk of obstructing the sidewalk. (Tr. at 18-19, 29-33.) The City does not dispute plaintiff's position that the general dangers cited in the Friedland Affidavit will not be implicated by this vigil because it will be overseen by protest marshals, and will occupy a limited portion of sidewalk in a relatively quiet part of the City during an especially quiet period of the day.*fn4 The City candidly acknowledges that regardless of whether vigil participants sit, stand, or sleep on the ground, it will have a police presence that will protect them and prevent any undue blockage of pedestrian passage. Based on both counsel's stipulations and the evidence before it, the Court finds that, as planned, the vigil will not obstruct pedestrian traffic and will not subject its participants to a heightened danger of attack or accident.

II. Discussion

A. Laches

Defendants have urged the Court to deny plaintiff's motion for a preliminary injunction without reaching its merits because of plaintiff's allegedly unreasonable delay in seeking relief from the Court. The Court declines to do so.

As a preliminary matter, the question of plaintiff's delay is appropriately addressed under the rubric of laches, not the irreparable harm prong of the preliminary injunction standard. Plaintiff alleges future, though imminent, deprivation of its constitutional rights. Accordingly, delay in seeking the injunction does not undermine plaintiff's contention that such a deprivation would be irreparable, unlike a situation where a plaintiff sits idly by while irreparable harm is allegedly being suffered on an ongoing basis. See Million Youth March, Inc. v. Safir, 18 F. Supp.2d 334, 339-40 (S.D.N.Y. 1998) (contrasting irreparable harm from future ...

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