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Guardian News, Inc. v. Amicone

March 3, 2008


The opinion of the court was delivered by: Brieant, J.

Memorandum and Order

The Court makes the following findings of fact and conclusions of law following a bench trial before the Court, held pursuant to Fed. R. Civ. Pro. § 65(a)(2). The matter was tried to the Court, without a jury, on November 13 and 14, 2007. Decision was reserved, and post trial submissions have been received and considered.

Findings of Fact

The Westchester Guardian (the "Guardian") is a regularly conducted weekly publication that is distributed free throughout Westchester County and elsewhere. Plaintiff Selim Zherka is the president and owner of the Guardian. The Guardian is a publication aimed at voicing opinions and statements about local governments and political issues throughout Westchester County, including within the City of Yonkers. The Guardian began publication in August 2006, and has distributed its paper every Wednesday throughout Yonkers, via blue metal newspaper boxes. Mr. Zherka testified that there are approximately thirty-five to forty Guardian boxes placed throughout Yonkers and that he helped with the placement of all the boxes.

In late September and early October 2006, the Guardian ran front page articles that were highly critical of the Yonkers Police Department. In essence, the articles alleged police brutality and corruption. There were no problems with distribution during this time. Beginning with the July 5, 2007 edition, the Guardian began running negative front page articles which portrayed the incumbent administration of the City of Yonkers, its police department and Defendant Mayor Philip Amicone, in particular in a bad light. It was around this time that Mr. Zherka contends the newspapers, as well as the blue boxes from which they were distributed, "began disappearing throughout Yonkers" (Tr. at 16). Mr. Zherka testified and I find that as a result, he installed replacement boxes and hired some teenagers to help him distribute copies of the Guardian by hand at various locations throughout the Yonkers, including at and around: Yonkers City Hall, the Cacace Justice Center and at Yonkers Avenue near the Central Avenue intersection. Yonkers City Hall houses the Offices of the Yonkers City Mayor, the Yonkers City Council and the Yonkers City Corporation Counsel. The Cacace Justice Center houses the Yonkers City Court as well as the Yonkers City Police Headquarters.

There are two entrances to Yonkers City Hall; the north and east entrances. There are stairs leading up to City Hall at the east entrance. There are no stairs leading to the north entrance doorway. There is a police desk inside City Hall close to the north entrance. This police desk has, and currently does, allow newspapers and publications to be placed for regular dissemination. On re-direct examination, Mr. Zherka testified and I find that no identification is needed when entering Yonkers City Hall, and there are no metal detectors or weapons inspections, although the police officers patrolling the building are armed. On cross-examination, Mr. Zherka testified that the police officers told him that he could place his papers on the police desk for free dissemination, and that he did so regularly, along with other free publications which were distributed in the same way.

In early July 2007, Mr. Zherka sent one of the teenagers in his employ, Richard Guzman, to City Hall to place copies of the Guardian on the police desk. The next day, Zherka went to City Hall and observed that Guardian papers were not among the other publications placed on the police desk for public access. Plaintiff Zherka's testimony expressed a belief that, although the police officers in City Hall were encouraging him to leave the Guardian on the police desk for distribution, Plaintiffs' papers were, in fact, confiscated. Plaintiff testified that he would place bundles of seventy-five (75) Guardian Newspapers on the police desk, and hour later, they would all be gone. Mr. Zherka testified that he then went back to his office to retrieve a newspaper box, which he brought back to Yonkers City Hall. Mr Zherka was accompanied back to City Hall by one of his employees, Dominica O'Neil. Mr. Zherka testified that he asked the police officer at the police desk where the Guardian papers were, to which the police officer said he didn't know. On cross-examination, Mr. Zherka testified that after returning with the news box, he lied to the police officer in City Hall, telling him that he was there installing the news box for "his boss". The police officer on duty, Officer Paul Wood, testified that Mr. Zherka said that his boss wanted to know the boxes were delivered, so he needed to take pictures of the boxes within City Hall. Mr. Zherka then attempted to place the news box in City Hall. While he was doing so, a "janitor" told him that he could not leave the news box there, but Mr. Zherka left the box there anyway.

The next day or a few days later, Mr. Zherka testified that he returned to City Hall and discovered that the box he had left was not there. Mr. Zherka saw that there was a small wire news rack in the stairway of the City Hall building with various publications in it, including "City of Vision" and "Home News and Times". Upon discovering that his news box was no longer where he left it, Mr. Zherka installed another news box across from the wire rack that was already in the City Hall building. Mr. Zherka testified that the installation of this box did not impede pedestrian traffic. Mr. Zherka returned to City Hall a few days later, and again found that his newly installed box was no longer where he had placed it. This time, Mr. Zherka installed a "desk top wire rack, smaller than what was there" across from the wire rack in the stairway, and placed Guardian papers on that wire rack. Upon returning to City Hall in the following days, Mr. Zherka testified that he found his wire rack, with all the papers scattered behind a sign within the building. On cross-examination, Mr. Zherka testified that he never saw any newspaper boxes in City Hall, however, he did see the wire news rack that was used to distribute city publications. Plaintiff further testified that this wire rack had no specific publication name designated to it and it was not removed from City Hall until late August of 2007.

Plaintiff testified that this time, he insisted on speaking with Mayor Amicone. Plaintiff, accompanied by Ms. O'Neill videotaping, walked into the Mayor's office demanding to see the Mayor because they "wanted to find out what was happening to their racks and paper". After the Mayor's secretary told them that the Mayor was "not in", David Simpson and Deputy Mayor William Regan told them to leave, which they eventually did.

Plaintiff Zherka testified, and I find that around this time, Guardian news boxes continued disappearing throughout the City of Yonkers, including boxes positioned in the parking lot of the Cacace Justice Center. Plaintiff testified that he attempted further communication with City Hall to find out what was going on, but the only response that he received was "We didn't take them. Maybe someone doesn't like you."

On August 9, 2007, Plaintiff was distributing the Guardian News outside of City Hall when a Yonkers police office, in uniform, told him that no papers were allowed on the property and asked him to stop. Plaintiff received a summons for violation of Yonkers City Code 100-35. The police officer told Plaintiff that he would be arrested if he continued to distribute the Guardian on the steps of City Hall or in the street.

Plaintiff Zherka received a second summons outside of City Hall on August 6, 2007, from the same police officer. While he was walking up the stairs to City Hall, but before he had distributed any papers, the police officer approached him and said "You know I have to give you a summons." Plaintiff has appeared in City Court several times due to these summons.

On August 2, 2007, Richard Blassberg, editor-in-chief of The Westchester Guardian, sent a letter to Yonkers Commissioner John A. Liszewski, with copies to Mayor Amicone and Police Commissioner Edmund Hartnett, informing them of Plaintiffs' belief that six Guardian News distribution boxes were confiscated from the area around City Hall and the Cacace Justice Center. The letter requested correspondence detailing where the boxes where being held and when a Guardian employee could retrieve them.

On August 7, 2007, Mr Blassberg sent another letter explaining that since that date of the last correspondence, five additional Guardian boxes were confiscated. These boxes were located on various street corners throughout the city of Yonkers. Again, Mr. Blassberg asked for information on the whereabouts and procedures for picking up the boxes. On August 10, 2007, Mr. Blassberg wrote a third letter claiming that a total of fifty-six (56) Guardian boxes had been removed, many of which had been in place for over one year, without justifiable purpose, and demanded immediate return of all confiscated boxes.

On August 21, 2007, approximately twenty days after the first letter sent on Plaintiffs' behalf, counsel for the Defendants wrote to Plaintiffs' counsel advising "that the City of Yonkers is in possession of approximately 33 'newsracks' which we believe belong to your client". The letter continues that the "newsracks" were removed because they were not in compliance with City regulations and that in order for Plaintiff to retrieve the "newsracks", he must contact Commissioner Liszewski, as well as submit proper identification to the City.

On August 23, 2007, Mr. Zherka went to pick up the thirty-five (35) confiscated Guardian news boxes, located at the Department of Public Works ("DPW") location at Lake Street, in Yonkers. Plaintiff testified that he videotaped Eddie Mayor, a DPW employee, while asking him questions, even though he told Mr. Mayor that he was not recording the conversation. Mr. Mayor was not called as a witness. Plaintiff provided the video tape, which showed that many of the boxes were scratched and dented and some of the windows would not open. Some of the boxes still had Guardian papers in them with dates spanning from mid-July through mid-August.

There was never a due process hearing held by the City or any defendant in relation to the news boxes that were taken off the City streets and brought to DPW and no administrative appeal was taken as to the seizure of the Guardian news boxes. No evidence was presented establishing that the Defendants had sent any notification to The Westchester Guardian alerting that such boxes were in violation of City Code, or giving an opportunity for the Plaintiffs to correct any such violation prior to the removal of the news boxes. Yonkers City Code § 33-5 requires such notification and a three day window for distributors to correct any violation prior to the Corporation Counsel directing the removal of such news boxes by the Department of Public Works.

On cross-examination, Plaintiff Zherka testified that he knew every location of every Guardian News box within the City of Yonkers but that he had no list of the boxes and their locations. He also testified that when installing many of the boxes in August 2006, he was unaware of the 1979 Yonkers Code Ordinance that regulates news boxes on the City's streets and did not become aware of this regulation until the commencement of this lawsuit.

During his direct examination, Edmond Fitzgerald, Yonkers Corporation Counsel's Law Case Investigator for sixteen years, testified, and I find, that during August and September of 2007, he took pictures of the Guardian News boxes at the direction of Frank Rubino. Mr. Fitzgerald testified that he was asked to photograph the "blue news boxes" and he did not remember photographing any other news boxes other than Guardian boxes. He further testified that he was not asked to photograph any Guardian boxes in 2006, the year prior. These photos taken were among the various exhibits provided to the Court. Mr. Fitzgerald testified that none of the Guardian boxes that he photographed were in the middle of the sidewalk. Mr. Fitzgerald also took pictures of the Guardian boxes that were confiscated and brought to the DPW location at Lake Street and examined the serial numbers of these boxes to make sure that none were missing.

On direct examination, John Liszewski testified and I find that he is the Commissioner of Public Works for the City of Yonkers. Prior to 2006, he gave no direction to remove any Guardian News boxes. However, in July or August of 2007, he gave orders to remove "any blue box" that was blocking the right of way. Mr. Liszewski conceded that the only boxes seized turned out to be Guardian boxes. He testified that he gave such orders as a result of an email he received on August 13, 2007 from Steven Sasson, the Director of Downtown Business Improvement District. The email stated that "There are numerous newspaper boxes chained to polls [sic] in the downtown and find it hard to believe that they are done with permission from the city. Is there a way to check or have them removed. I have already found two....They are for the Westchester Guardian. I am also having one of my Rangers assess the entire BID area to identify others. They are brand new, which is why it caught my attention...."

Mr. Liszewski also conceded that he received a complaint from the Mayor's office that the Mayor's Chief of Staff, Lisa M., saw blue boxes in two locations on Bronx River Road that were "impeding her walk". He testified that Lisa said that the boxes were not there and then they appeared. Mr. Liszewski testified that he asked her whose boxes they were, and she didn't mention, nor did he ask her the location of the boxes on the sidewalk. Mr. Liszewski gave a work order to Robert Greco, a maintenance mechanic, to "remove blue newspaper boxes blocking right of way". Mr. Lisewski also testified to a "radio log" recording made when a person called regarding "blue boxes", although he doesn't remember who the call was from, only that it was from someone credible. Mr. Lisewski testified that he never saw the blue boxes on Bronx River Road. He further testified that no officers that he dispatched with removal orders, ever came back to ask exactly which blue boxes were to be removed. The Commissioner testified that that was because they could tell that the boxes to be removed were new. When shown a picture of a Guardian box chained to a bus stop that was siezed, the Commissioner admitted that the bus stop, as well as the street light fixture next to the bus stop also impedes pedestrian traffic. (Pl. Ex. 123).

The Commissioner also testified that on a Friday in July or August 2007, at 5:00 pm, he spoke to Mayor Amicone. During that conversation, Mr. Liszewski testified that the Mayor said that there were two more of those blue boxes on Central Avenue by the Will Library. Liszewski did not recall exactly what language was used or if "Guardian" was mentioned. The Commissioner testified that, although the Library is not owned by the City, he sent someone over to check for a "public safety hazard". He testified that there was no documentation of a public hazard but did not remember if the boxes at the Library were seized by his department or removed by the Library. On cross-examination, Mr. Liszewski contended that no order was based on content of the paper, and no one ever discussed the content of the paper with him.

On direct examination, Charles Gardner testified that he is, and has been the First Deputy Chief of the Yonkers Police Department for three years. He testified that no news racks were seized during 2006. On July 17, 2007, he learned from either Mr. Rubino or Mr. Precari of the Yonkers Corporation Counsel that people were distributing printed materials inside City Hall in violation of Yonkers City Code § 100-35. As a result, Chief Gardner contacted the Fourth Precinct, which sent a supervisor over to City Hall with the instruction to contact Corporation Counsel before issuing summonses. Two summonses were issued on that day, both for violation of Section 100-35.

Chief Gardner testified that at the time of issuing the summonses, he was somewhat familiar with Article 33 of the Yonkers Code on news racks, although he was not aware that a permit was not required. He testified that he has read that section since that time. He further testified that he read the last sentence of section 100-35 to mean that there were no exceptions allowed for distribution of printed material on public property.

Although he testified that he read Section 100-35 to provide no situation where printed material could be distributed without a permit on public property, on August 21, 2007, Chief Gardner issued an All Commands memo on the subject of Distribution of Newspapers on Public Sidewalks and Roadways. The first point was that "NO Summons shall be issued for the distribution of newspapers on public sidewalks, as long as the people involved do not encumber or obstruct the public sidewalk". The second point stated:

In accordance with the provisions of Sections 1156 and 1157 of the N.Y.S.

Vehicle and traffic Law, no person shall walk along or upon a public roadway in order to distribute newspapers or solicit vehicle occupants to take their newspapers. Police Officers shall direct any persons doing so to return to the sidewalk for their own safety and that of the passing motorists. Any persons willfully failing to comply with such direction or order shall be given a City Ordinance Summons for a violation of Yonkers City Code Section 109-48, Obedience to Police. (Pl. Ex. 87). No witness was issued a summons for violation of Section 109-48, however, Maumer Kllapija was issued a summons for violating Section 100-35 of the Yonkers City Code for distributing newspapers in the street after being advised by a Police Officer to stop because a City permit was required for that type of distribution.

Daniel Barahona, a Yonkers Police Officer, testified on direct examination that prior to reading section 100-35 he issued summonses to people handing out the Guardian. He testified that he was told by Officer Perrotta of the third precinct to issue summonses under this section to anyone handing out newspapers on public property. Officer Barahona testified that he issued a summonses to Richard Guzman for handing out issues of the Westchester Guardian "to passersby in front of the courthouse" approximately seventy-five (75) feet from the entrance. Barahona testified that he asked Guzman if he had a permit because Officer Perrotta told him that the statute so required.

That same day, Barahona issued a summons to Nicole Pacheco because she was handing out newspapers. He asked her for a permit, but denied that he ever said anything to her about "jail time". He further testified that he told Nicole and Richard to stop handing out the newspapers but they refused to leave until they were issued summonses, at which time they immediately left and took the papers with them. On cross-examination, Barahona testified that he did not know the contents of the newspaper at the time he issued the two summonses.

Officer Barahona contended that Richard and Nicole were blocking pedestrian traffic of the people going to and from the courthouse, however on cross-examination, he testified that the sidewalk at that location is approximately four to five feet wide. On re-direct, Officer Barahona testified that he did not issue any summons for blocking pedestrian traffic. Both summonses issued by Barahona were issued for violation of 100-35, and read "defendant distributing newspapers on public property without proper permits." The last sentence of section 100-35 concerning distribution by hand contains no provision requiring obtaining a permit.

On direct examination, Robert Greco testified that he is the Public Works Coordinator for the City. In this position, he is involved with parades, special events that take place within the City, as well as constituent complaints. On August 10, 2007, he learned from Commissioner Liszewski that there was a Guardian news box on the step of the Will Library that needed to be removed. Mr. Greco testified that he does not know whether the Will Library is owned by the City of Yonkers. He further testified that although the Commissioner described the box as "blue box", everyone is the Department "knew that they were Guardian news rack boxes". Greco called Dave Mason, Manager of the Street Cleaning Department to remove the box.

The next day, August 11, 2007, the Commissioner called Greco and told him to remove boxes on Yonkers Avenue blocking traffic. Mr. Greco called in this order and did not personally see any news boxes blocking the right of way. He testified that he had no knowledge that the boxes removed were blocking the right of way. The order he called in was to remove any blue boxes that were blocking the right of way. Mr. Greco testified that all of the Guardian news boxes he knew of were chained to existing fixtures on the sidewalk. Mr. Greco also testified that he did not follow up on his directive.

Police Officer Paul Wood testified that he has been a Yonkers Police Officer for twenty-two years. Officer Wood testified that he issued seven or eight summonses pursuant to Yonkers City Code after July 2007, to various people for handing out newspapers approximately eighteen feet from both entrances of City Hall. Prior to issuing those summonses, Officer Wood spoke to Sergeant McCormick of the Fourth Precinct who alerted Wood to the existence of Section 100-35. Officer Wood never issued a summons for violation of that section prior to that date.

On July 11, 2007 P.O. Wood issued a summons to Cesar Castillo for violating Section 100-35 by "handing out printed matter inside City Hall to passer bys", near the north doorway. On August 1, 2007, P.O. Wood testified that he issued a summons to Dominica O'Neil for handing out the Guardian approximately eighteen feet from the doorway for City Hall. Also on August 1, 2007, P.O. Wood issued a summons to Maribel Ayala for handing out Guardian papers on the north side of city hall approximately eighteen feet from the doorway. He testified that he showed her the city ordinance and told her if she left then, he wouldn't give her a summons.

P.O. Wood also issued a summons to Selim Zherka on August 1, 2007, for handing out newspapers approximately eighteen feet from City Hall entrance. On August 6, 2007, P.O. Wood issued another summons to Dominica O'Neil for handing out Guardian Newspapers. He testified that this time, she was standing at the bottom of the steps leading up to City Hall, but not on the steps. He did not ask her if she had a permit. He testified that he also showed Ms. O'Neil a copy of the ordinance and gave her an opportunity to leave, but did not mention jail time. On that day, Officer Wood also issued another summons to Mr. Zherka for handing out Guardian Newspapers approximately eighteen feet from the entrance of City Hall. Officer Wood testified that he asked if Mr. Zherka had a permit, showed him section 100-35 and told Mr. Zherka that his conduct was illegal. Mr. Zherka replied that Section 100-35 was unconstitutional, to which Officer Wood replied "its not for them to decide" and that he had to issue a ticket. P.O. Wood testified that there was a "Standing Order" to write such summonses.

On August 6, 2007, P.O. Wood also issued summonses to Michael Estrada and Richard Guzman, both for violating Section 100-35 by distributing the Westchester Guardian News papers approximately eighteen feet from the entrance of City Hall.

P.O. Wood testified that although he knew about the paper, he did not issue any of the summonses because of the content of the paper, and no one ever told him to remove the paper or issue summonses because of its content. He testified that he never saw anyone steal or take the Guardian Newspapers off the police desk. He also testified that the security desk post was a "mobile post" and there were times when the desk was uncovered. P.O. Wood testified that he saw Plaintiff put at most 25 to 50 papers once a week on the desk and then later, once a day, and although he wasn't there all the time, the bundles placed on the desk never disappeared.

P.O. Wood testified that the security measures at City Hall vary depending on who someone is, how they are known and where within the building they are going. He testified that unknown persons are required to produce identification and that some people are required to sign into a book at the police desk. He further testified that the presence of Guardian news boxes in City Hall pose a "9-11 security risk" and terrorist threat, because anything could be put in the boxes and be out of sight. P.O. Wood testified that there were two Guardian boxes on the East and North side of City Hall leaning up against the building and that he would look inside the boxes and pick up the papers a number of times during the week, but never turned the boxes over or reported these "inspections". P.O. Wood testified that no one told him of the "perceived threat" of news boxes within City Hall.

On July 9, 2007, P.O. Wood testified that Mr. Zherka entered City Hall with a Guardian news box and told Officer Wood that he had to show his "boss" that he delivered the boxes and so needed to take pictures of the boxes within City Hall. P.O. Wood testified that no boxes were allowed in City Hall prior to that date, although periodicals were always allowed on the police desk. On redirect, P.O. Wood conceded that there was no written policy forbidding news racks in City Hall, nor did he ask anyone if they were forbidden.

David Simpson testified, and I find, that he is the Director of Communications for the City of Yonkers for two years and that his job entails dealing with the media and fielding reporters' questions about the City and its administration and policies. In late August of 2007, when reporters from Channel 12 News and the Gannett newspaper asked Mr. Simpson questions about the Guardian Newspaper, he testified, "I interjected my opinion that the Westchester Guardian was not a newspaper". When asked whether he had ever spoken with Mayor Amicone about the Guardian or anything contained in it, Mr. Simpson responded "Of course" and recounted the first occasion, stating, "the Mayor had related a story to me in which he [sic] a conversation with the mayor of Mount Vernon, Ernie Davis, in which Ernie Davis jokingly asked him over the telephone: Which one are you, dumb or dumber? Referring to one of the headlines in the Guardian. It was a joking matter.". Mr. Simpson also testified that over the course of several months from August 2007, he had several conversations with the Deputy Mayor about the Guardian and its distribution practices.

After the initiation of the lawsuit by Plaintiffs which was filed on August 9, 2007, Mr. Simpson testified that he told Tracy Everson of Channel 12 news that the Guardian news racks were propaganda machines. He testified, " I regarded the Westchester Guardian as a piece of political propaganda. So the box was a propaganda machine to me.". Plaintiffs' counsel then asked "Did you regard the Guardian as a propaganda machine that opposed your incumbent administration including the mayor" to which Mr. Simpson responded, "It was clear that they opposed the mayor.".

A headline on an edition of the Guardian dated July 5, 2007 read "Amicone Sells Out Families of Yonkers...Embraces Giulio Cavallo; Brings in Nick Spano Mob". The front page headline of the July 9, 2007 Guardian read "A Tale of Two Cities", beneath which read "Dumb and Dumber" referring expressly to Mayor Amicone of Yonkers and Mayor Davis of Mount Vernon. The August 2, 2007 Guardian edition headline read "Phil Amicone A Huge Flop! Fails to Deal With Police Brutality".

Mr. Simpson testified that he spoke to Commissioner Liszewski during late August 2007, after he had received inquiries from the press, and asked if the City "confiscated any Westchester Guardian News boxes" and where the boxes were taken. He also testified that he spoke to the Deputy Mayor several times regarding the Guardian News and its distribution during and after August 2007.

Mr. Simpson's understanding of the City's policy on news boxes is that they are permitted unless they impede rights of way. He testified that he was told about the regulation governing newsracks in late August of 2007. Additionally, he testified that he was unaware of any written policy concerning news boxes within City Hall. He testified that it was the administration's responsibility to draft policy for the building. At the time of his testimony, Mr. Simpson stated that he had not read Section 100-35.

On cross-examination, Mr. Simpson testified that in late summer or early fall of 2007, after news broke about the City taking thirty-five Guardian news boxes off the street, Mr. Zherka appeared in the Mayor's office unannounced, with a female shooting live video and demanding to see the Mayor. While recounting the incident that transpired in the Mayor's office with Mr. Zherka, Mr. Simpson testified that he came from his office to give the Mayor's receptionist some assistance and "asked Mr. Zherka to have his associate turn off the video camera, that filming wasn't permitted, that he should leave, the mayor was unavailable" at which point Mr. ...

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