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NATIONAL COUNCIL OF ARAB AMERICANS v. CITY OF NEW YORK

August 23, 2004.

NATIONAL COUNCIL OF ARAB AMERICANS and ACT NOW TO STOP WAR & END RACISM Coalition, Plaintiffs,
v.
THE CITY OF NEW YORK, MICHAEL BLOOMBERG, Mayor of the City of New York in his official capacity, CITY OF NEW YORK DEPARTMENT OF PARKS AND RECREATION and the CENTRAL PARK CONSERVANCY, Defendants.



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

MEMORANDUM AND ORDER

Plaintiffs move for a preliminary injunction directing the New York City Department of Parks and Recreation (the "Parks Department") to grant them a permit to hold a demonstration of 75,000 people on the Great Lawn in Central Park on the eve of the Republican National Convention in New York. They also seek to preliminarily enjoin enforcement of the Parks Department's permit regulatory scheme. This application presents intersecting public interests: the right "of the people peaceably to assemble" and the stewardship of a unique pastoral oasis amid a towering urban landscape.

For the reasons that follow, Plaintiffs' application to mandate the issuance of their permit on the terms they requested, and to preliminarily enjoin enforcement of the existing permit regulatory scheme, is denied. Nevertheless, this Court is convinced that the parties could bridge their differences and fashion a revised permit that would allow a political assembly on the Great Lawn. Because only five days remain before the proposed demonstration and this Court is persuaded that August 28, 2004 has symbolic importance to Plaintiffs, this Court will offer some observations at the conclusion of this Memorandum and Order.

  BACKGROUND

  The Republican National Convention will begin in New York on August 30, 2004. That event has been anticipated by many organizations and is the catalyst for a number of planned mass demonstrations. (Declaration of Elizabeth W. Smith, dated Aug. 18, 2004 ("Smith Decl.") ¶¶ 18-20; Transcript of Oral Argument, dated Aug. 20, 2004 ("Tr.") at 82.) Indeed, the Parks Department received thirty different applications for special permits to conduct rallies or demonstrations during the convention week. (Tr. at 82.) Those permit requests emanated from a broad spectrum of advocacy groups, some well known such as the "National Organization of Women", and others less familiar (at least to this Court) like "Dogs Against Republicans". (Smith Decl. ¶¶ 18, 20.) This tsunami of special permit applications has posed its own logistical challenges.

  I. Events Leading to the Litigation

  On January 7, 2004, the National Council of Arab Americans (the "Council") applied for a permit to conduct a rally on August 28, 2004 on the Great Lawn or Sheep Meadow*fn1 in Central Park. (Smith Decl. Ex. A.) The event was described as one for 75,000 people that would run from 10:00 a.m. to 6:00 p.m. and require use of the Great Lawn or Sheep Meadow for a 24 hour period. (Smith Decl. Ex. A.) It did not provide for a rain cancellation date. (Smith Decl. Ex. A.) Because of the influx of other applications, the Parks Department notified the Council on March 13, 2004 that a decision on the Council's permit application would be deferred pending completion of the City's strategic plan for security in New York during the Convention. (Smith Decl. Ex. B.) Nevertheless, in that initial communication, the Parks Department raised a trident of concerns with the Council's application: "the capacity of the Great Lawn, the high risk of damage to the lawn and the displacement of preexisting uses." (Smith Decl. Ex. B.) The parties did not discuss the permit application or the City's letter. In mid-June, the Parks Department advised the Council by telephone that "[t]he permit as requested is denied" and "you are not getting the Great Lawn; there is nothing to resolve." (Tr. at 72; see Smith Decl. ¶ 26.) The parties and their attorneys then began a Kabuki dance of correspondence that led to this lawsuit. (see Smith Decl. Exs. C-H.)

  On June 15, 2004, the Parks Department formally denied the Council's permit request, citing Sections 2.08(c)(1)-(2) and (5) of the Parks Rules and Regulations:
Neither the Great Lawn nor the Sheep Meadow can accommodate an event of the nature you are planning. Since the Great Lawn was restored between 1995 and 1997, it has been carefully managed so that the restoration accomplished through significant public and private investment can be preserved. Likewise, the Sheep Meadow underwent a significant restoration in 1981 and is now limited to passive recreation.
(Smith Decl. Ex. C.) While denying the permit request, the Parks Department offered to meet with the Council "to discuss possible alternative locations that would be more suitable" for the demonstration. (Smith Decl. Ex. C.) The Council appealed the permit denial, but did not respond to the Parks Department's overture to meet. (Smith Decl. Ex. D.)

  On June 30, 2004, the Parks Department denied the Council's appeal, alluding to the potential destruction of the Great Lawn should wet conditions exist at the time of the event, and again invited the Council to meet with City officials to discuss alternative locations. (Smith Decl. Ex. E.) The Council responded promptly on July 1, 2004. (Smith Decl. Ex. F.) Although claiming that it was "amenable to meeting with the Parks Department to facilitate this matter," the Council imposed preconditions by seeking a more fulsome explanation of the reasons for the City's permit denial and demanding a list of alternative locations for which the Parks Department would issue a permit. (Smith Decl. Ex. F.)

  The Parks Department did not respond to the Council's specific requests. Instead, on July 16, the City renewed its offer to meet with the Council "to find a suitable site for the proposed event on August 28, 2004." (Smith Decl. Ex. G.) At that time, the Parks Department cautioned the Council that it might not be able to find a location for the event if the parties did not meet soon because of the significant number of permits that were being issued. (Smith Decl. Ex. G.) This time, the Council chose not to respond.

  On August 6, 2004, the Parks Department explicated the reasons why it would not grant a permit to the Council for a demonstration on the Great Lawn. (Smith Decl. Ex. H.) Specifically, the Parks Department advised the Council that the only organized events allowed on the Great Lawn since its 1997 restoration have been those events that can be cancelled when the ground is wet. (Smith Decl. Ex. H.) More importantly, the Parks Department explained: "[o]ur management criteria for the Great Lawn are not compatible with events that cannot . . . comply with our crowd control and security requirements even under optimum conditions." (Smith Decl. Ex. H.) In another pro forma gesture, the Parks Department invited the Council to meet to find an alternative site suitable for the event. (Smith Decl. Ex. H.) The Council did not respond. Instead, the Council filed this lawsuit at the end of the day on Friday, August 13, 2004.

  The Council has teamed up with Act Now to Stop War & End Racism ("ANSWER") coalition in this lawsuit. ANSWER did not apply for a permit in Central Park or participate overtly in the Council's application process. (see Smith Decl. Ex. A; Smith Decl. ¶ 21.) Since September 11, 2001, ANSWER has organized many mass demonstrations in Washington, D.C. and New York City with some crowds approaching 500,000 people. (Declaration of Brian Becker, dated Aug. 17, 2004 ("Becker Decl.") ¶ 9.)

  While the Council and ANSWER moved for emergency relief in this action, they did not apply to the Court by order to show cause. Instead, they filed their Complaint with a bare bones notice of motion for a preliminary injunction and a memorandum of points and authorities without any supporting papers. By letter dated August 16, 2004, Plaintiffs sought a hearing on their preliminary injunction on August 20, 2004. Even then, the appendix of materials relating to Plaintiffs' motion was not on file with the Court. This Court conducted a telephone conference on August 17, 2004 to address the scheduling of Plaintiffs' application for emergency relief. By Order dated August 17, 2004, this Court directed Plaintiffs to file and serve the papers in support of their application "forthwith." (Order, dated Aug. 17, 2004.)

  II. Significance of the Great Lawn

  On occasion, litigation provides an avenue for parties to articulate their positions more transparently than the events leading to the lawsuit. This appears to be one of those cases. The lack of engagement between the parties prior to this lawsuit contributed to each side's failure to appreciate the significance of the Great Lawn to the other.

  Prior to this litigation, neither side ever discussed revisions to the permit application, or alternative venues. The lack of a rain date or weather cancellation contingency was never ventilated. It was only after this litigation commenced that the Parks Department proposed alternative locations. (see Smith Decl. ¶¶ 63-66.) In contrast, the City engaged in a dialogue with other advocacy groups to accommodate their respective concerns and reached agreement for demonstrations with all but two applicants. (Smith Decl. ¶¶ 18-20.)

  The Parks Department offers a number of alternative sites, including Flushing Meadow Park in Queens and Van Cortland Park in the Bronx, both of which are capable of handling events of 75,000 or more people in any weather condition. (Smith Decl. ¶ 65.) Within Central Park, the Parks Department suggests the East Meadow, an area capable of accommodating a smaller crowd of 50,000 people in any weather condition. (Smith Decl. ¶¶ 63-64.)

  If none of these alternative sites were acceptable to event organizers, the Parks Department represents that it would have referred the Council to the New York City Police Department for assistance in finding a location elsewhere in the City. (Smith Decl. ¶ 66.) However, Plaintiffs insist that only one place will do: the Great Lawn. (Tr. at 38-39.)

  Since filing this litigation, Plaintiffs assert that the choice of August 28, 2004 for a rally on the Great Lawn serves several purposes. First, the rally coincides in time and space with the Republican National Convention and presents an opportunity to demonstrate against President George W. Bush. (Becker Decl. ¶ 2.) Second, it falls on the 41st anniversary of the 1963 civil rights march on Washington, D.C., led by Dr. Martin Luther King, Jr. and commemorates the struggle for civil rights. (Becker Decl. ¶¶ 3-4.) Third, the Great Lawn offers an "unconfined, family friendly mass rally venue whose historic tradition is devoid of confrontation and conflict." (Becker Decl. ¶ 5.) Fourth, "[t]he Great Lawn is, for New York, what the Lincoln Memorial was for Washington, D.C.: A historic place, one that was associated with the mass mobilization for people of justice, seeking justice." (Tr. at 9.)

  Indeed, at the preliminary injunction hearing, the symbolic importance of the Great Lawn to Plaintiffs was described. Brian Becker, the national coordinator for the ANSWER coalition, characterized the Great Lawn as "the flagship . . . where people gather" (Tr. at 10), and "the heart and soul of New York City." (Tr. at 35.) Becker explained:
[T]he Great Lawn is the place where mass assembly has taken place. It symbolizes to the Arab American community and their allies . . . [a] link for something through a historic continuum with Dr. King's 1963 march. I consider, the Great Lawn if it's available, and if there's no reason to deny the use of it, to be the only appropriate ...

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