MEMORANDUM-DECISION AND ORDER*fn2
Presently before the Court is a Motion for summary judgment filed on November 16, 2007 by Plaintiff, requesting that the Court declare that Defendants unconstitutionally applied New York's trespass statute to remove Plaintiff from Schenectady County Community College ("SCCC") and that Defendants be enjoined from interfering with Plaintiff's First Amendment right to preach and videotape in the Quad area at SCCC. Also before the Court is Defendant Michael D'Annibale's cross-Motion for summary judgment requesting that this Court find that the Eleventh Amendment bars the action against Defendant D'Annibale, and to the extent that it does not, that he has qualified immunity from suit.
This action was commenced on October 31, 2006 by Plaintiff Gregory S. Davis ("Plaintiff" or "Davis"), seeking monetary damages and injunctive relief pursuant to 42 U.S.C. § 1983 against Defendant D'Annibale, Assistant Dean for Administrative Services at SCCC in his official and personal capacity, Defendant Brian U. Stratton, the Mayor of Schenectady in his official capacity, and Defendant Michael N. Geraci, Chief of Police, in his official capacity. Am. Compl. (Dkt. No. 57).
On September 8, 2006, Plaintiff, an ordained Baptist minister, was arrested while preaching the Gospel on the campus of SCCC, a part of the State University of New York ("SUNY") System. D'Annibale Dep. at 10 (Dkt. No. 68, Ex. B).
Prior to his arrest, Davis was situated in the Quad -- an area within the center of several SCCC buildings where students often congregate -- preaching the Gospel and handing out religious tracts. SeePl.'s DVD (Dkt. No. 68, Ex. C). Davis also videotaped his activities, as was his custom, in order to memorialize the event, to use as evidence in case he was unjustly accused of wrongdoing, and to remember persons he met in order to pray for them. SeeDavis Affidavit at ¶ 6 (Dkt. No. 68, Att. 1).
After receiving a complaint from a female student regarding Plaintiff's activities, Defendant D'Annibale approached Plaintiff and asked him to cease videotaping, but Plaintiff refused. Defendant D'Annibale then told Davis he was on private property, and asked Davis to leave. Davis again refused, and told Defendant D'Annibale that the SCCC campus was a limited public forum, and that he had the right to speak there. Defendant D'Annibale told Plaintiff that he was not authorized to be on campus because he did not follow the correct procedures, and again reiterated that it was "private property." Plaintiff inquired which procedures Defendant D'Annibale was referring to and stated that he had indeed followed them. Defendant D'Annibale asked Plaintiff to leave again, and told him that if he did not leave, the police would be called. Plaintiff did not leave and instead continued to preach about First Amendment rights and the Gospel.
Defendant D'Annibale then called the police. When the police arrived, they too asked Davis to leave. Davis informed the police that he was exercising his right to preach in a public forum, but also stated that if he was going to be arrested, he would leave. A police officer asked to see some identification, and Davis complied by handing the officer his drivers license. Davis continued to tell the officers and Defendant D'Annibale that he had a right to be on the campus and to speak there. After examining Davis' license and speaking briefly with Defendant D'Annibale, an officer arrested Davis.
Davis was initially charged with Criminal Trespass, New York Penal Law § 140.10(b), which only governs entry on elementary or secondary school property in violation of conspicuously posted rules or regulations. SeeDavis Affidavit at ¶ 8 (Dkt. No. 68, Attch. 1); N.Y. Penal Law § 140.10(b). Eventually that charge was dismissed, and Davis was instead charged under New York Penal Law §140.05, Trespass, which is graded as a Violation, not a crime. SeeDavis Affidavit at ¶ 9 (Dkt. No. 68, Att. 1); N.Y. Penal Law § 140.05 ("A person is guilty of trespass when he knowingly enters or remains unlawfully in or upon premises. Trespass is a violation."). Rather than simply giving Mr. Davis a citation or summons on the new Trespass Violation, the police rearrested him under the new charge. Davis Affidavit at ¶ 10 (Dkt. No. 68, Att. 1).
Davis contends that the application of the New York Trespass laws unconstitutionally chilled his rights of freedom of religion, freedom of speech, and freedom of assembly.
Summary judgment should be granted if, when viewing the evidence in the light most favorable to the nonmoving party, the court determines that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). For summary judgment purposes, a dispute about a genuine issue exists where the evidence is such that a reasonable jury could decide in the non-movant's favor. FED. R. CIV. P. 56(c); see also Beyer v. County of Nassau, 524 F.3d 160,163 (2d Cir. 2008). Rule 56(c) mandates the entry of summary judgment against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Byrne v. CNA Ins., Co., 2001 U.S. Dist. LEXIS 12975 (N.D.N.Y. 2001).
B. Traditional First Amendment Analysis
The main issue before the Court is whether Plaintiff has a First Amendment right to preach, hand out leaflets, and videotape his actions in the Quad area of SCCC, and whether that right was violated by his removal from SCCC. To resolve this issue, the Court must decide whether Plaintiff's actions are protected by the First Amendment and identify the nature of the forum, because the extent to which the Government may limit access depends on whether the forum is public or nonpublic. The Court must then assess whether the justifications for exclusion from the relevant forum satisfy the requisite standard. See Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 797 (1985).
The right to a public forum for expression of ideas is fundamental to a democracy. Concerned Jewish Youth v. McGuire, 621 F.2d 471, 473 (2d Cir. 1980). However, "[t]he existence of a right of access to public property" for the purpose of speaking there and "the standard by which limitations on such a right must be evaluated differ depending on the character of the property at issue." Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 44 (1983).
The right of use of government property for one's private speech or expression depends on whether the property, by law or tradition, has been given the status of a public forum, a designated or limited public forum, or rather has been reserved for specific, official uses. Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 761 (1995). Regulation of speech activity on governmental property that has been traditionally open to the public for expressive activity, or which has been expressly dedicated to speech activity, is examined under strict scrutiny. Regulation of speech activity on a limited purpose public forum is examined under heightened scrutiny. However, where property is not considered a public forum and the government has not dedicated it to First Amendment activity, the regulation is examined only for reasonableness. U.S. v. Kokinda, 497 U.S. 720 (1990).
Plaintiff Davis contends that the Quad is a traditional public forum. Regulation of speech in traditional public forums is subject to strict scrutiny. U.S. v. Grace, 461 U.S. 171, 177 (1983). In order to survive strict scrutiny, the application of a statute or policy must be necessary to serve a compelling government interest. Lopez Torres v. New York State Bd. of Elections, 462 F.3d 161, 184 (2d Cir. 2006).
Defendants, on the other hand, argue that the Quad constitutes, at most, a limited or designated public forum. Although the parties seem to use the terms interchangeably at times, the Second Circuit has articulated the view that the phrases "designated public forum" and "limited public forum" are not synonyms. See, e.g., N.Y. Magazine v. Metro. Transp. Auth., 136 F.3d 123, 128 & n. 2 (2d Cir.1998) (describing a 'limited public forum' as a "sub-category of the designated public forum, where the government 'opens a non-public forum but limits the expressive activity to certain kinds of speakers or to the discussion of certain subjects.'") (quoting Travis v. Owego-Apalachin Sch. Dist., 927 F.2d 688, 692 (2d Cir. 1991)).
A "designated public forum" consists of property that would be a nonpublic forum except for the fact that the government has intentionally opened it for use by the public for expressive activity. See Cornelius, 473 U.S. at 802. Although the government is not required to open the forum in the first place, or to keep it open indefinitely, the government is bound by the same standards as apply to a traditional public forum, so long as it maintains the designated public forum. See Perry, 460 U.S. at 46. Speech in a designated public forum has traditionally been subject to heightened scrutiny. Grace, 461 U.S. at 177. In order to survive heightened scrutiny, the statute or policy must be narrowly tailored to serve a significant government interest. Grace, 461 U.S. at 177.
A "limited public forum" is a subset of the designated public forum, created when the government opens a nonpublic forum but limits the expressive activity to certain kinds of speakers or to the discussion of certain subjects. Make the Road By Walking, Inc. v. Turner, 378 F.3d 133, 143 (2d Cir.2004). For example, a university concert hall, designated for a particular type of speech by university-supported musicians, might be considered a "limited public forum." An "unlimited" designated public forum, in contrast, is a forum designated for expressive conduct by the government but not limited to a particular type of speech or speaker. See, e.g., Deeper Life Christian Fellowship v. Board of Educ., 852 F.2d 676, 679 (2d Cir.1988); Calash v. City of Bridgeport, 788 F.2d 80, 82 (2d Cir.1986). A state's reservation of a limited public forum to certain groups will be upheld if the restriction is content-neutral and reasonable in light of the purpose of the forum. Good News Club v. Milford Cent. Sch., 533 U.S. 98, 106-07 (2001).
As discussed in more detail below, the Court finds that there was no specific rule or policy in place at SCCC that was properly applied to exclude Davis from the campus. Indeed, the SCCC Rules specifically note that "[n]othing herein is intended, nor shall it be construed, to limit or restrict the freedom of speech nor peaceful assembly." SCCC Rules, at 1 (Dkt. No. 67, Ex. J). Since there is no restriction of the Quad area to any specific type of speech or speaker, the Court finds that the government has not created a "limited public forum." As discussed in more detail below, the Court also finds that the use of the trespass statute to exclude Plaintiff from the campus fails either heightened scrutiny or strict scrutiny. Accordingly, the Court need only apply heightened scrutiny in its analysis. However, for completeness, the Court will briefly discuss the nature of the forum.
In this case, the Quad is an outdoor area within the center of several SCCC buildings where students often congregate.*fn3 This area is within the boundaries of the campus, and combines the physical characteristics of streets, sidewalks, and parks, and is open for public passage. The physical characteristics of the Quad, if they were considered alone, would likely make it a traditional public forum. Grace, 461 U.S. at 177; Hague v. Comm. for Indus. Org., 307 U.S. 496, 515 (1939) ("Wherever the titles of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.").
However, "[p]ublicly owned or operated property does not become a 'public forum' simply because members of the public are permitted to come and go at will." Grace, 461 U.S. at 177. Rather, the open nature of these spaces is only one factor for the Court to consider in determining whether the government has opened its property. Grace, 461 U.S. at 177. Other factors, none of which are dispositive, include the traditional use of the property, the objective use and purposes of the space, and the government's intent and policy with respect to the property, including the presence of any special characteristics regarding the environment in which those areas exist. See, e.g., Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503, 506 (1969) (noting the "special characteristics of the school environment").
Certainly, a university "differs in significant respects from public forums such as streets or parks or even municipal theaters" and a campus need not "make all of its facilities equally available to students and non-students alike" and neither must a university "grant free access to all of its grounds or buildings." Widmar v. Vincent, 454 U.S. 263, 268 n. 5 (1981). Nonetheless, university campuses have traditionally and historically served as places specifically designated, by society and the universities themselves, ...