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UNITED FOR PEACE AND JUSTICE v. CITY OF NEW YORK

February 10, 2003

UNITED FOR PEACE AND JUSTICE, PLAINTIFF,
V.
THE CITY OF NEW YORK; MICHAEL BLOOMBERG, MAYOR OF THE CITY OF NEW YORK; AND RAYMOND KELLY, COMMISSIONER OF THE NEW YORK CITY POLICE DEPARTMENT, DEFENDANTS



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

OPINION

Plaintiff, United for Peace and Justice, is a coalition of local and national organizations that oppose an American war against Iraq. Defendants are the City of New York; Michael Bloomberg, Mayor of the City of New York; and Raymond Kelly, Commissioner of the New York City Police Department (collectively the "City"). Plaintiff requests that this Court enjoin the City from denying it a permit for an event planned to take place on Saturday, February 15, 2003, only five days from this Court's decision. Plaintiff's permit application, filed on January 24, 2003, requested a permit for a march and rally, with a formation area at "Dag Hammarskjold Plaza with overflow as needed on 2nd Ave." (Goldman Aff., Ex. A). The parade route requested was from the Daq Hammarskjold Plaza (the "Plaza") south on First Avenue past the United Nations and the United States Mission, west on 42nd Street, north to Seventh Avenue to Central Park's Great Lawn. The application stated "[m]archers to occupy width of roadway sufficient for 50,000 — 100,000 people." (Id.). After some negotiation between the parties, on February 4, 2003 the City informed Plaintiff that it would not permit any march to take place as part of the February 15 event. Instead, the City offered a stationary rally on Dag Hammarskjold Plaza, which is located at 47th Street between First and Second Avenues, with overflow on First Avenue from 49th Street north for as many blocks as required to accommodate the number of participants — estimated to reach as far north as 75th Street if 100,000 persons were to participate.

In its February 5, 2003 complaint, Plaintiff claims that a march past the United Nations is a necessary part of the event and that "[i]n refusing to permit a march to take place in conjunction with the plaintiff's anti-war event, the defendants are violating the plaintiff's rights under the First Amendment to the United States Constitution." (Comp. at ¶ 3). While Plaintiff has not specifically offered to forego its march past the United Nations, as late as the evening of February 7, after an evidentiary hearing, Plaintiff was willing to discuss alternate march routes. The City, however, was then and remains unequivocal in its position that will not permit a march past the United Nations — or a march anywhere in Manhattan — in connection with the event, principally because of safety and security considerations. It also takes the position that the stationary rally it has offered Plaintiff provides a reasonable alternative channel of communication.

I. THE LITIGATION

The complaint was filed February 5, 2003, briefs and affidavits were submitted on the morning of February 7 and an evidentiary hearing was held on the afternoon of February 7. The parties took discovery that included the depositions of Leslie Cagan, the event organizer for Plaintiff, and Assistant Chief Michael Esposito, Commanding Officer of the Patrol Borough Manhattan South, between February 5 and February 7.*fn1 An additional letter submission from Plaintiff and a Statement of Interest, submitted pursuant to 28 U.S.C. § 517, from the United States Attorney for this district were received on February 8, 2003. Two further letter submissions, one each from Plaintiff and Defendants were submitted on February 9, 2003.

II. BACKGROUND FACTS

United for Peace and Justice, established in October of 2002, "is a national campaign that brings together a broad range of organizations throughout the United States to help coordinate efforts to prevent a U.S. war in Iraq." (Cagan Aff. at ¶ 1). In response to the increased likelihood of war, "United for Peace and Justice . . . planned a large anti-war march and rally for February 15, 2003, to coincide with similar events [scheduled] around the world for that same day." (Cagan Aff. at ¶ 3). The group intended the march to proceed directly in front of the United Nations, which includes the area bounded by 42nd Street on the south, 48th Street on the north, Franklin D. Roosevelt Drive on east, and First Avenue on the west. (Cagan Aff. at ¶ 3; Statement of Interest at p. 2). As Ms. Cagan explains, United for Peace and Justice places great significance in passing "within direct view of the United Nations." (Cagan Aff. at ¶ 1, 8). The United Nations is "responsible for monitoring activity in Iraq" and sponsors the "weapons inspections currently taking place in Iraq." (Cagan Aff. at ¶ 8). Just as Colin Powell took his message in favor of war with Iraq to the United Nations on February 5 and Hans Blix is scheduled to report to the United Nations Security Council on February 14, United for Peace and Justice seeks to use this march to bring its message of "mass opposition to the efforts of the United States" to the United Nations as well. (Cagan Aff. at ¶ 8).

III. PRELIMINARY INJUNCTION STANDARD

In order for Plaintiff, the moving party in this case, to justify an award of a preliminary injunction, it must first demonstrate that it is likely to suffer irreparable harm in the absence of the requested relief. Million Youth March, Inc. v. Safir, 18 F. Supp.2d 334, 338-339 (S.D.N.Y. 1998) ("MYM I") "Once the likelihood of irreparable harm has been demonstrated, a movant ordinarily is entitled to relief if it demonstrates either (1) `a likelihood of success on the merits' or (2) `sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly' in the movant's favor." Id. (quoting Jolly v. Coughlin, 76 F.3d 468, 473 (2d Cir. 1996)) (quoting Waldman Publishing Corp. v. Landoll, Inc., 43 F.3d 775, 779-80 (2d Cir. 1994)). If, though, a movant seeks to enjoin "governmental action taken in the public interest pursuant to a statutory or regulatory scheme," it may succeed only by demonstrating irreparable harm and a likelihood of success on the merits. Housing Works v. Safir, No. CIV.A. 98-4994, at *2, 1998 WL 409701 (S.D.N.Y. July 21, 1998) (internal citations omitted). Further, if

the injunction sought will provide the movant with substantially all the relief sought, and that relief cannot be undone even if the defendant prevails at a trial on the merits, the showing of a likelihood of success must be "clear" or "substantial."

MYM I, 18 F. Supp.2d at 339 (internal citations omitted).

In this case, Plaintiff seeks preliminary injunction "enjoining the defendants from preventing the plaintiff from conducting a peaceful march on First Avenue past the United Nations as part of its February 15, 2003, anti-war event, subject to reasonable restrictions." (Comp. at ¶ 28(3)). Plaintiff thus seeks to enjoin governmental action Defendant claims is being taken in the public interest pursuant to a regulatory scheme. Plaintiff must demonstrate, therefore, a likelihood of success on the merits in order to establish its rights to a preliminary injunction. Moreover, because of the requested date of the event, the grant of preliminary relief would provide Plaintiff with substantially all the relief that it seeks and that relief could not be undone by a trial on the merits. For this reason, to obtain a preliminary injunction Plaintiff must establish a clear or substantial likelihood of success on the merits and irreparable harm. MYM I, 18 F. Supp.2d at 339.

IV. IRREPARABLE HARM

"The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Id. Accordingly, Plaintiff's allegation that a preliminary injunction is necessary to prevent the imminent loss of its First Amendment right to march as part of its anti-war event, is sufficient to establish a likelihood of irreparable harm.

V. PLAINTIFF'S LIKELIHOOD OF SUCCESS ON THE MERITS

Plaintiff asserts that the City's permit policy for events such as this is unconstitutional as applied to it.*fn2 The Constitutional framework is well settled. There is no dispute that marching in a public street in conjunction with political protest, "if peaceful and orderly, falls well within the sphere of conduct protected by the First Amendment." Gregory v. City of Chicago, 394 U.S. 111, 112 (1969) The streets of New York City through which Plaintiff seeks to march

have immemorially been held in trust for the use of the public and . . . have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a ...

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