The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge
The plaintiffs in above-captioned cases, Ann Stauber
("Stauber"), Jeremy Conrad ("Conrad"), and the New York Civil
Liberties Union (the "NYCLU")*fn1 have moved pursuant to
Federal Rule of Civil Procedure 65 for preliminary injunctive
relief against the defendants the City of New York, Police
Commissioner Raymond W. Kelly ("Commissioner Kelly"), and
Officers Marvina C. Lawrence and Does 1-10 (collectively, the
"defendants" or "the City"), with respect to practices by the New
York City Police Department ("NYPD") at stationary rallies. For
the reasons set forth below, the motion is granted in part and
denied in part.
In this action security in the form of governmental regulation
of demonstrations directly confronts liberty interests of free
speech and assembly. Difficult issues of standing and
constitutional law complicate the achievement of the delicate
balance between these powerful concepts. That balance is of
particular importance to citizens and their government in times
of heightened political tension and threatened challenges to
public safety. The specific event which precipitates this
litigation is the Republican National Convention (the
"Convention"), scheduled to take place in New York City from
August 30 to September 2, 2004, and the intention of the plaintiffs and others to express their
opposition to the Convention and to the actions of the President
and his Administration. The following findings of fact and
conclusions of law seek to define a resolution which can serve to
encourage free expression in a secure society.
Plaintiffs seek injunctive relief to enjoin four alleged
practices: (1) the practice of unreasonably impeding access to
demonstration sites without making reasonable efforts to provide
information to the public about how otherwise to attain access to
the site (the "access policy"); (2) the practice of unreasonably
restricting access to and participation in demonstrations through
the use of metal, interlocking barricades to create "pens" in
which demonstrators are required to assemble (the "pens policy");
(3) the unreasonable, generalized searching of the possessions of
persons as a condition of attaining access to certain
demonstrations (the "bag search policy"); and (4) the
unreasonable use of horses forcibly to disperse peacefully
assembled demonstrators (the "Mounted Unit policy"). The
defendants argue that plaintiffs lack standing to bring their
claims, and justify these practices on the grounds of security
and public safety.
While plaintiffs argue that each of the practices they seek to
enjoin are widespread policies that have been in place for some
time, each was most prominently used at the February 15, 2003 demonstration against the then-proposed military action in Iraq
(the "February 2003 demonstration").
Stauber is 61 years old, has lived in New York City since 1961,
and has been a member of the NYCLU since 1989. As a result of a
medical condition known as Ehler-Danlos syndrome, Stauber has
been confined to a wheelchair since 1991. In the ten years prior
to the February 2003 demonstration, Stauber has not attended any
Conrad is a student at Brooklyn Law School. Prior to the
February 2003 demonstration, Conrad had not participated in any
demonstrations in the United States.
The NYCLU is a membership organization whose mission it is to
defend the Bill of Rights and rights guaranteed by the
Thirteenth, Fourteenth, and Fifteenth Amendments to the United
States Constitution and for which protection of First Amendment
rights is a "core mission." The NYCLU has approximately 30,000
members statewide, with approximately 20,000 members in New York
NYCLU members have attended political demonstrations in New
York City, including the February 2003 demonstration, and several members testified to the continuing intent of its members
to attend demonstrations.
The NYCLU has sponsored demonstrations in New York City and
will be sponsoring a large demonstration scheduled to take place
at the Convention later this year.
The City of New York is a municipal corporation within the
State of New York.
Commissioner Kelly is the Commissioner of the NYPD. He is being
sued in his official capacity.
Officer Marvina C. Lawrence ("Officer Lawrence") is a police
officer employed by the NYPD. She is being sued in her official
and individual capacities for monetary damages.
Defendants Does 1-10 are individuals employed by the NYPD whose
identities were not known to Conrad when the lawsuit was filed.
These defendants allegedly arrested Conrad, assaulted him while
making the arrest, and ordered that he be detained an
unreasonably lengthy period of time in unlawful conditions. They
are being sued in their official capacities for compensatory
damages and in their individual capacities for compensatory and
punitive damages. Prior Proceedings
Each of the actions was filed on November 19, 2003. For the
purposes of the claims for injunctive relief only, the three
claims were consolidated. Each action, however, retains its own
Each action seeks both injunctive relief and monetary damages.
After expedited discovery on the claims for injunctive relief,
the plaintiffs moved on June 2, 2004 for a preliminary
injunction. The defendants moved simultaneously to dismiss the
plaintiffs' Monell claims, including the claims for injunctive
relief. A hearing on the preliminary injunction was held between
June 2 and June 7, 2004 (the "hearing"). Final argument on the
motion was heard on June 17, 2004, at which time the motion was
deemed fully submitted. Several letters from both sides were
received by the Court after that date.
The NYPD's Use of Barricades and Pens
Before the NYPD implemented the use of barricades and later,
pens, large gatherings of people in Manhattan filled all
available spaces between buildings. At New Years' Eve
celebrations in Times Square in the mid-1950's, for example,
thousands of people would turn out, blocking all vehicular traffic. Under current
policies, by contrast, the NYPD at New Year's Eve celebrations
make considerable use of metal perimeter barricades, including
the use of "pens," which are four-sided enclosures created from
several interlocking metal barricades. According to Police Chief
Joseph Esposito ("Chief Esposito"), the highest ranking member of
the uniformed force, the use of pens provides many advantages:
You have got much more control of the situation. You
can have emergency vehicles come in and out without
any problem at all. You can have officers around
these barricades . . . If there is any crime going on
. . . it would be a lot easier to address a crime
situation under this condition.
If . . . someone [were to] be injured or have some
type of seizure or attack, under the old way, I can't
see how you would get that person out in a timely
fashion. Under the new way of Times Square, the way
we do it with the pens, it's a lot easier to get an
injured person out and get aid.
Preliminary Hearing Transcript ("Tr.") at 484-85. The police have
used wooden barricades at demonstrations for decades, and have
used four-sided pens at demonstrations since at least 1995.
Demonstrations and parades over the years have ranged from
cultural events to protests. Parades for Dominican Day, Puerto
Rican Day and Saint Patrick's Day have involved the participation
of over 100,000 people. United for Peace and Justice v. City of
New York, 243 F. Supp.2d 19, 26 (S.D.N.Y. 2003). The events
surrounding recent protest demonstrations follow. The February 2003 Demonstration
The February 2003 demonstration was organized by United for
Peace and Justice ("UPJ"), whose national coordinator, Leslie
Cagan ("Cagan"), testified at the hearing. UPJ is a nationwide
coalition of national associations and local groups that formed
to create a unified effort to oppose the military action in Iraq,
and then later to end the occupation of Iraq. On January 22,
2003, UPJ initially proposed a march and rally for February 15
which would have begun with an assembly of people on Second
Avenue in Manhattan, with people assembling on side streets from
47th Street going up several blocks. Those assembled would then
march past the United Nations on First Avenue and then march over
to 42nd Street to a northbound avenue, and from there into a
rally at Central Park.
The City denied the request to have the march and rally as
described, and UPJ litigated the denial of the permit in federal
court, where the denial of the permit was upheld by the district
court on February 10, 2003, and by the Second Circuit on February
12, 2003. See United for Peace and Justice v. City of New
York, 243 F. Supp.2d 19 (S.D.N.Y. 2003), aff'd 323 F.3d 175
(2d Cir. 2003). The City's ban on marching in front of the United
Nations was upheld because the "march is simply too large for the
NYPD to adequately secure the safety of United Nations
headquarters." UPJ, 243 F. Supp.2d at 24. The City's decision
to ban a march, as opposed to a stationary rally, was upheld because "the heightened
security concerns posed by an unorganized, large scale march
threaten the City's interest in maintaining public safety." Id.
After the denial of the permit, UPJ met with the NYPD
concerning where the event would take place. The meeting on
February 12 was the first organizers had with the NYPD. According
to Cagan, the NYPD proposed that the event take place on First
Avenue. Cagan objected to the location and proposed moving it to
Second Avenue, but her request was denied. The NYPD also
indicated its intent to use pens at the event. The term "pen" in
this litigation is used by NYPD officials and organizers to
describe the NYPD's use of interlocking, metal barricades to
create four-sided enclosures in which demonstrators are expected
to assemble during demonstrations. Cagan requested that pens not
be used, but her request was denied.
During the planning meeting, the NYPD communicated its access
plan to UPJ and the NYCLU, who provided legal representation for
the organization. See Tr. at 287-89. Neither organization
requested that the NYPD post its access plan on its web site, nor
did they post access information on their own web sites. UPJ's
web site advised people to converge at noon at 51st Street and
First Avenue, and stated that a large march would occur in
Midtown Manhattan on February 15. In addition, the UPJ web site
posted information on "feeder marches" which would converge at the
rally, and advised that "[i]n general, marching on the sidewalk
is legal so long as you do not obstruct pedestrian traffic."
Defendant's Exhibit O (UPJ web site, printed on February 14,
On February 15, which was an extremely cold day, the stage for
the demonstration was set up on First Avenue between 51st and
52nd Streets. The rally took place north of the stage. The NYPD
set up metal barriers along both sides of First Avenue. As
demonstrators filled a block to what the NYPD deemed to be a safe
capacity, a set of metal barricades was put in place across First
Avenue on the north end of the block. After an opening to keep
the cross streets open and free of pedestrians, another line of
barricades were put in place across the south end of the next
block, which would similarly be permitted to fill to capacity and
then closed at the north side.
Demonstrators attending the event were required to enter First
Avenue from the north. At the early stages of the demonstrations,
entry was available at 52nd Street. As the pens began to fill,
however, demonstrators had to move further north in order to find
an open pen. Individuals seeking to participate in the
demonstration were not allowed to use the sidewalks along First
Avenue to move north in order to find an open pen. Although the
rally began at noon, by 1:00 P.M., First Avenue was filled with
large numbers of people up to 60th Street and beyond. As thousands of demonstrators made their way to the rally site,
the NYPD began to close off Second Avenue to those making their
way to the rally. Many demonstrators used Third Avenue to make
their way north. However, a bottleneck developed at Third Avenue
around 53rd Street. According to demonstrators, police were
giving conflicting information about which streets were open, and
were sending demonstrators in different directions.
At 1:45 P.M., Chief Esposito declared a level 4 mobilization. A
level 4 mobilization is the highest level, and "is a citywide
mobilization where [the NYPD] pull[s] resources, be it personnel
or equipment, from other parts of the city and either stage[s]
them or use[s] them for a large-scale disorder." Tr. 557
(testimony of Lieutenant Dennis Gannon ("Lt. Gannon")).
During the afternoon, some members of the crowd behaved in a
disorderly manner. Conduct included standing on newsstands and
lamp posts, breaking through police barricades, sitting on
streets for which permits were not issued, and refusing to move
when directed by police officers. The NYPD arrested 274 people
during the day of February 15, 2003, for activity related to the
Claudia Angelos ("Angelos"), the president of the NYCLU,
attempted to reach the rally site on February 15 with her husband
and two teenaged daughters. After reaching Third Avenue, she was told by police to head north, but was given no further direction
as to how to reach the rally. After proceeding north into the
60's, Angelos, along with her family and the rest of the crowd,
was directed by police officers down a cross street between Third
and Second Avenues. The crowd then was stopped and swelled to the
point where it filled the entire street and sidewalks. After
finding themselves unable to progress forward towards the
demonstration site on First Avenue, Angelos and her family
attempted to leave the area by exiting back towards Third Avenue.
It was difficult for Angelos and her family to move back towards
Third Avenue, and when they got there they discovered that police
barricades had been erected at the back of the crowd, thereby
trapping the crowd on the block. Because Angelos did not believe
that "there was going to be any way ever of getting anywhere
close to the demonstration," Tr. at 53, she and her family headed
In order to disperse the crowd on Third Avenue, the NYPD
deployed its Mounted Unit, which consists of a number of officers
on horseback. According to Captain Christopher Acerbo ("Captain
Acerbo"), the head of the Mounted Unit, the pedestrian congestion
developed on Third Avenue "because the demonstration area on
First Avenue was filled and [the demonstrators] were given the
option to go north and access the demonstration in the 60s, and
they were not cooperating." Acerbo Deposition at 87. Captain
Acerbo was told by the zone commander to open up Third Avenue
because there was no access for emergency vehicles. The Mounted
Unit repeatedly urged the crowd to disperse. When the crowd did not disperse, the
Mounted Unit "moved through the crowd" north on Third Avenue at a
very slow pace. Id. at 90-91. The horses were making contact
with the demonstrators.
A similar situation occurred on Second Avenue. The Mounted Unit
was also deployed on at least two other occasions that day on
Third Avenue: once to remove a group of approximately 75 to 100
people who had commandeered a police truck used to carry metal
barricades, and once to open Third Avenue to traffic by moving a
line of horses southbound on the avenue.
At the rally site on First Avenue, the pens eventually
stretched north into the high 70's or low 80's. On each block,
the pens had openings only at the front and the back. The pens
did not encompass the width of the street, as the NYPD formed the
pens so that emergency vehicles could travel down one side of the
avenue. Police officers were posted around the sides of the pens,
even where there were no openings for demonstrators either to
enter or exit.
The Reverend Earl Kooperkamp ("Kooperkamp"), who is the pastor
of St. Mary's Episcopal Church in West Harlem, attended the
February 2003 demonstration. Kooperkamp attempted to lead members
of his congregation to the First Avenue rally site. He arrived at
First Avenue with an 87-year-old parishioner and one other
person. When they arrived on First Avenue, they were directed into a pen
between 63rd Street and 62nd Street. It was very cold, and he
attempted to leave the pen to get a hot drink for the elderly
church member. At first the police were not letting anyone out,
but then created an opening from which Kooperkamp was able to
exit. However, when he returned with the hot drink, the police
officer at the opening said he could not re-enter, even though
Kooperkamp explained to the officer that he had been in the pen
and had just left to get a hot drink for the elderly parishioner.
Finally, after about ten minutes, the officer left the opening
unattended and Kooperkamp was able to re-enter the pen.
Conrad was attempting to reach the rally site with his
girlfriend when they were stopped in the midst of a large crowd
on Third Avenue in the vicinity of 53rd Street. Conrad observed a
line of mounted officers coming out from a cross street and then
turn facing the crowd, which was shoulder-to-shoulder and filled
the entire street. The horses then moved into the crowd,
resulting in people running in all directions and pushing into
each other and yelling. A horse stepped on Conrad's foot and
injured him. Conrad was in the block where the Mounted Unit
deployed for 15 or 20 minutes but at no time heard any warnings
or any orders to disperse. After the demonstration, Conrad's toe
was swollen and remained in poor condition for almost a month.
Conrad did not seek medical treatment for his injuries because he
did not have health insurance. Stauber attended the February 2003 demonstration and plans to
attend future demonstrations, including the ones held in
conjunction with the Convention. She ended up in a pen on First
Avenue somewhere near 53rd Street. After being in the pen for a
while, Stauber began to feel uncomfortable and needed to go to
the bathroom. At first she did not see any openings from which
she could leave but then saw an opening at the southern end of
the pen. When she approached that opening, she encountered
Officer Lawrence and asked her for permission to leave. Officer
Lawrence told Stauber she could not leave. Stauber explained that
she needed to go home because she was sick and needed to use the
bathroom. Officer Lawrence continued to refuse, and Stauber
attempted to sneak through the opening when she thought the
officer was not looking. Officer Lawrence saw her, however, and
grabbed her wheelchair and spun it around, damaging its controls
in the process.
Stauber filed a complaint regarding the incident with the
Civilian Complaint Review Board ("CCRB"), which substantiated her
complaint, and specifically explained that an "officer stood in
front of the entrance/exit of the pen area, thereby preventing
her from leaving." CCRB Report at 2. Officer Lawrence testified
at the hearing, and while she did not dispute that an incident
took place, she claimed that it occurred outside a pen. However,
as the CCRB Report stated, Officer Lawrence's "credibility is
weak," id. at 10-11, and it is found that the incident took place inside the
pen on First Avenue.
Stauber has expressed concern at the prospect of being trapped
in a pen at a future demonstration. She now wears adult diapers
to demonstrations for fear of not being allowed to leave a pen to
go to the bathroom.
According to NYPD estimates, 80,000 people attended the
February 2003 demonstration.
April 10, 2003 Pro-War Demonstration
On April 10, 2003, a demonstration in support of the military
action in Iraq took place on West Street between Liberty Street
and Canal Street in Manhattan. The demonstration was sponsored by
the Building and Construction Trades Council of Greater New York.
Before the demonstration, the NYPD issued special written
instructions to supervising officers on the scene that included
the following directive, "All officers assigned are to check
backpacks, knapsacks, duffel bags, etc. Those people who refuse
will not be allowed into the demonstration area."
September 9, 2003 Demonstration On September 9, 2003, the NYCLU sponsored a demonstration near
Federal Hall in Manhattan to express opposition to United States
Attorney General John Ashcroft and to the Uniting and
Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, Pub.
L. No. 107-56, 115 Stat. 272 (the "Patriot Act"). Pens were used
at the demonstration, and the Executive Director of the NYCLU,
Donna Lieberman ("Lieberman"), received complaints from people
who were required by the NYPD to take a circuitous route to the
The NYPD searched the bags of several people as a condition of
entering the demonstration, including one of the speakers at the
rally and an NYCLU staff member. The NYCLU attempted to negotiate
the policy with police officers at the scene, but were unable to
convince them not to search.
The March 20, 2004 Demonstration
UPJ applied for a permit to hold an antiwar march in Manhattan
on March 20, 2004 (the "March 2004 demonstration"). Unlike the
February 2003, 2003 demonstration, UPJ was granted a permit for
demonstrators to march.
In anticipation of the March 2004 demonstration, the NYPD made
considerable efforts to notify the public about access to the demonstration site. Commissioner Kelly decided that the
Department would post on its web site information about access to
the event so as to facilitate access to the event. This was the
first time the NYPD had used its web site for these purposes.
Commissioner Kelly decided that the NYPD should have a press
conference to provide information about how to attain access to
the event. According to Commissioner Kelly, he made that decision
"[b]ecause I thought it was important to get information out on
how to get to the event, what the route would be, because of a
lack of information at demonstrations in the past, and
particularly because this area has not been an area that had been
used frequently in the past for demonstrations for a march."
Kelly Deposition at 88. This was the first time the NYPD had held
such a press conference.
For the March 2004 demonstration, the NYPD assigned sound
trucks to closed access points to provide access information to
those seeking to attend the event. This was the first time the
Department had done this.
At the request of the NYPD, the organizers of the March 2004
demonstration made changes to their web site to provide
information about access to the event. Reverend Kooperkamp attended the March 2004 demonstration with
a number of members of his church. They learned of available
access to the event from the NYPD's web site and had no problem
gaining access to the event. The March 2004 demonstration went
very smoothly without problems as far as the NYPD was concerned.
The NYPD did not use pens at the March 2004 demonstration.
Police officials were unable to identify any other large,
stationary rally at which pens had not been used. And while it
did have barricades lining the curbs on Madison Avenue to keep
demonstrators in the street and off sidewalks, the NYPD left
openings in those barricades so demonstrators could leave the
barricaded area and go on to the adjoining sidewalks.
Before the March 2004 demonstration, the NYPD issued written
instructions to supervisors informing them that people attending
the demonstration should be allowed to leave barricaded areas and
go to nearby stores. Police officials were unable to identify any
other instance in which such instructions were issued.
The NYPD estimated that over 40,000 people attended the March
2004 demonstration. Other than a single incident at which it took
a little longer to get medical assistance to one person, the
NYPD's decision not to use pens at the March 2004 event did not
create any problems. May 23, 2004 Salute to Israel Day Parade
The NYPD searched the possessions of persons seeking to enter a
demonstration at the Salute to Israel Parade on May 23, 2004. The
parade route was on Fifth Avenue in Manhattan, from the mid-50's
up into the 80's. There were also two demonstrations at around
59th Street which took place in two areas across the street from
one another, one for pro-Israeli and one for pro-Palestinian
demonstrators. In the past, there has been violence and disorder
at this event because of the animosity between the two groups. At
the event, Deputy Inspector Michael McEnroy ("Inspector McEnroy")
received reports from subordinate officers that demonstrators
were arriving at the parade with large backpacks and coolers.
Based on the potential for violence, Inspector ...