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Middle East Crisis Response v. City of Kingston

September 1, 2010




Plaintiffs, as members of the Middle East Crisis Response ("Plaintiffs" or "MECR"), an unincorporated organization, commenced this action on June 30, 2008 for damages pursuant to 42 U.S.C. § 1983. They allege, inter alia, that Defendants, the City of Kingston ("Defendant City") and four police officers ("Defendant officers") employed by the Defendant City, violated their First Amendment rights by preventing Plaintiffs from entering or demonstrating at a municipal park, and from carrying political signs and distributing leaflets on the public sidewalk near that park, as well as by maintaining and enforcing discretionary and over-broad permit regulations for the use of public parks in the City of Kingston. Am. Compl. (Dkt. No. 27). Plaintiffs also allege that Defendants violated their rights under the Equal Protection Clause of the Fourteenth Amendment by preventing Plaintiffs from entering or demonstrating at the park. Id. Presently before the Court is Plaintiffs' renewed Motion for summary judgment. Mot. (Dkt. No. 36). For the reasons discussed below, the Motion is denied.


Plaintiffs are members of MECR, a group comprised of individuals from the Hudson Valley region of New York State who seek to protest various policies of the State of Israel and the United States in the Middle East. Am. Compl. ¶ 2 (Dkt. No. 27); Pls.' Mem. in Supp. at 1 (Dkt. No. 36). MECR members engage in public protests, leafleting, and advocacy to advance their political views. Am. Compl. ¶ 3 (Dkt. No. 27); Pls.' Mem. in Supp. at 1 (Dkt. No. 36). Defendants are the City of Kingston, Sergeant James Maisenhelder, and Officers William Hadsel, Scott Williams, and Harry Woltman. Am. Compl. ¶ 6--8 (Dkt. No. 27). The individual Defendants are sued in their individual capacities. Am. Compl. ¶ 8 (Dkt. No. 27).

On May 4, 2008, the Ulster County Jewish Federation ("UCJF") was celebrating the sixtieth anniversary of the founding of the State of Israel at the T.R. Gallo Waterfront Park ("the park"). Am. Compl. ¶ 12 (Dkt. No. 27); Pls.' Mem. in Supp. at 1 (Dkt. No. 36). The event was open to the public and cosponsored by the City of Kingston. Id. On that date, Plaintiffs gathered outside the park to leaflet, display signs, and protest against Israel and the United States or the policies thereof. Am. Compl. ¶ 11 (Dkt. No. 27); Pls.' Mem. in Supp. at 1 (Dkt. No. 36). The park is a public area bordered by West Strand Avenue, a public roadway. Am. Compl. ¶ 12 (Dkt. No. 27).

Plaintiffs allege that they entered the park from West Strand Avenue once the celebration was underway. Pls.' Mem. in Supp. at 1--2 (Dkt. No. 36). After about fifteen minutes had passed, they contend that several UCJF celebrants approached Defendant Officer Woltman to complain about the Plaintiffs' unwelcome entry into the park, which the UCJF had reserved for the day; it is asserted that, subsequently, approximately one dozen UCJF celebration participants engaged in "heated" discussions with Plaintiffs. Pls.' Mem. in Supp. at 2 (Dkt. No. 36). Defendant Officer Woltman then contacted Defendant Sergeant Maisenhelder to apprise him of the situation. Pls.' Mem. in Supp. at 2 (Dkt. No. 36); Woltman Dep. at 20--21 (Dkt. No. 38-2). According to Defendant Officer Woltman, the crowd was "agitated enough and they were dug in their positions enough that the verbal exchanges were definitely heated." Woltman Dep. at 26--27 (Dkt. No. 38-2). When Defendant Sergeant Maisenhelder arrived, four or five protestors and several celebrators were "yelling back and forth." Maisenhelder Dep. at 16--17 (Dkt. No. 38-3). They are reported to have been located approximately one foot apart and moving towards each other. Id.

At this point, Defendant Sergeant Maisenhelder decided to have Plaintiffs exit the park for the stated reason of preserving public safety and order. Maisenhelder Dep. at 29--30; 39--40 (Dkt. No. 38-3). Defendant officers moved Plaintiffs away and informed them that UCJF had a permit to use the park that day. However, it is alleged by MECR that while UCJF indeed had permission to use the park, they did not have an actual permit. Am. Compl. ¶ 13 (Dkt. No. 27); Pls.' Mem. in Supp. at 4 (Dkt. No. 36). Defendant Sergeant Maisenhelder also prevented Plaintiffs from carrying their signs or leafleting on the public sidewalk along West Strand Avenue; rather, he escorted Plaintiffs to a "designated protest area" outside of the park. Am. Compl. ¶ 14--15 (Dkt. No. 27); Pls.' Mem. in Supp. at 4 (Dkt. No. 36). Plaintiffs contend that the "designated protest area" obstructed their view of the UCJF event and inhibited them from conveying their message to the celebrants. Pls.' Mem. in Supp. at 5 (Dkt. No. 36); Am. Compl. ¶ 18--19 (Dkt. No. 27). While several of the Plaintiffs were permitted to re-enter the park on their own, the group as a whole was prohibited from demonstrating or assembling inside the park. Am. Compl. ¶ 21 (Dkt. No. 27). When Defendant officers realized that a number of the Plaintiffs had returned to the park and were leafleting, the MECR members were again ordered to leave. Am. Compl. ¶ 22 (Dkt. No. 27); Pls.' Mem. in Supp. at 6 (Dkt. No. 36).

Plaintiffs allege that the City maintains a policy of segregating public assemblies by determining whether persons with contrary political views will cause a disturbance. Am. Compl. ¶ 24 (Dkt. No. 27). Plaintiffs further contend that the City does not maintain any guidelines governing the location of designated protest areas, and, therefore, that the rules governing such matters are vague and discretionary. Am. Compl. ¶ 27--28 (Dkt. No. 27). Plaintiffs also find fault with the City Parks and Recreation Department's permit application form, which is used to reserve other public parks in the City, but is not used for the park in question. Am. Compl. ¶ 30 (Dkt. No. 27). Plaintiffs admit that the City maintains no written procedures for use of the park involved in this case. Pls.' Stat. of Facts ¶ 28 (Dkt. No. 11).

In response to Plaintiffs' Complaint, Defendants deny the allegations of constitutional violations and raise eight affirmative defenses: that Defendants acted in good faith and without malice; that Defendants are entitled to qualified immunity; that Plaintiffs' claims fail to state facts sufficient to constitute a valid cause of action; that the alleged damages sustained by Plaintiffs were caused solely by the conduct of Plaintiffs or were contributed to by the conduct of Plaintiffs; that Defendants provided a reasonable alternative for Plaintiffs to exercise their constitutional rights; that any restriction placed upon Plaintiffs' right to assemble and protest were reasonable; that Defendants acted reasonably to preserve public order and safety; and that Defendants properly advised Plaintiffs to relocate. Answer to Am. Compl. (Dkt. No. 28).


Federal Rule of Civil Procedure 56 provides that summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). A court must "'resolve all ambiguities, and credit all factual inferences that could rationally be drawn, in favor of the party opposing the judgment.'" Brown v. Henderson, 257 F.2d 246, 251 (2d Cir. 2001) (quoting Cifra v. Gen. Elec. Co., 252 F.3d 205, 216 (2d Cir. 2001)). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

If the moving party meets its initial burden of demonstrating that no genuine issue of material fact exists for trial, the non-movant "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Corp., 475 U.S. 574, 586 (1986) (citations omitted). Rather, the non-movant "must come forth with evidence sufficient to allow a reasonable jury to find in her favor." Brown, 257 F.3d at 251 (citation omitted). The nonmoving party "may not rely merely on allegations or denials in its own pleadings," as bald assertions unsupported by evidence are insufficient to overcome a motion for summary judgment. Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991); W. World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990).


A. Reasonable Restrictions on the Time, Place, or Manner of ...

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