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July 16, 2004.

THE CITY OF NEW YORK, et al., Defendants. JEREMY CONRAD, Plaintiff, v. THE CITY OF NEW YORK, et al., Defendants. JEREMIAH GUTMAN and the NEW YORK CIVIL LIBERTIES UNION, Plaintiffs, v. THE CITY OF NEW YORK, et al., Defendants.

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 demonstrations.

  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 City.

  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 docket number.

  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. at 29.

  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, 2003).

  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 antiwar demonstration.

  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 home.

  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 demonstration.

  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 ...

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