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Michael Marcavage and Michael Stockwell v. City of Syracuse

May 22, 2012




Presently before the Court is Plaintiffs' Motion for a temporary restraining order. Dkt. No. 4 ("Motion"). Plaintiffs seek an order enjoining Defendants from enforcing various ordinances to the extent that such enforcement would restrict Plaintiffs' First Amendment rights. For the reasons that follow, Plaintiffs' Motion is granted, consistent with this Decision and Order.


On April 9, 2012, Plaintiff Michael Stockwell ("Stockwell") attempted to engage in religious preaching near the Centro bus hub in downtown Syracuse, which is located in a busy commercial zone. Dkt. No. 1 ("Complaint") ¶ 23. Stockwell used a portable amplification device in order "to be heard effectively in the noisy downtown environment." Id. ¶ 26. At approximately 5:00 p.m., Stockwell was approached by two unidentified police officers with the Syracuse Police Department, who "stated that he could not use the device without a permit from the City, and ordered [Stockwell] to shut it off." Id. ¶¶ 27-28. Stockwell complied with the officers' order and left shortly thereafter. Id. ¶¶ 31-32.

Before making another attempt at amplified religious speech, Plaintiffs Stockwell and Michael Marcavage ("Marcavage") contacted multiple officials from the City of Syracuse and the City of Syracuse Police Department seeking clarification of the ordinances governing sound amplification. Id. ¶¶ 34- 57, 59-64, 67, 72-85. Some officials with whom Plaintiffs spoke stated that Plaintiffs would need a permit before engaging in amplified speech; others stated that, in practice, no such permits are ever issued. Id. ¶¶ 36, 49, 51, 61-62. Eventually, Plaintiff Marcavage was directed to Sergeant Michael Long ("Defendant Long") in the City's Licensing Department. Id. ¶¶ 57, 59, 72.

Defendant Long identified himself as "the end all" and "an army of one," and stated that he had checked with "the Chief's Office [] and with the City Hall" to confirm his understanding of the noise ordinances. Id. ¶¶ 73, 79. Referencing the language in the city ordinances, Defendant Long went on to explain to Plaintiff Marcavage that, in effect, the ordinances completely prohibit the use of loudspeakers or bullhorns. Id. ¶¶ 75-78. Defendant Long told Plaintiff Marcavage that "If you use one, you're probably either going to be arrested or told to turn it off . . . ." Id. ¶ 78.

Plaintiffs also asked about city policies regarding religious leafleting. Id. ¶¶ 65-67, 86-88. Plaintiff Marcavage was told by a Licensing Department employee that a permit is required before distributing printed materials -- including religious materials -- in the city. Id. ¶¶ 66-67. The same employee stated that permits take a minimum of a week to be issued. Id. ¶ 67. Defendant Long later confirmed that a permit was required to distribute religious material and that if the Syracuse Police Department witnessed Plaintiff Marcavage distributing literature without a permit, Plaintiff would be asked to leave and -- if he continued to distribute literature -- arrested. Id. ¶ 86-88. Plaintiffs have stated that they would like to return to the City of Syracuse to engage in these activities, "but cannot do so without the constant looming threat of citation and/or arrest." Id. ¶ 92.

For a more complete statement of facts, reference is made to the Complaint.


The standards for granting a temporary restraining order are the same as those governing preliminary injunctions. AFA Dispensing Group B.V. v. Anheuser-Busch, Inc., 740 F. Supp. 2d 465, 471 (S.D.N.Y. 2010) (citation omitted). In this Circuit, a court will grant a motion for a preliminary injunction only where the party seeking the injunction can show "(1) irreparable harm in the absence of the injunction and (2) either (a) a likelihood of success on the merits or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in the movant's favor." Faiveley Transp. Malmo AB v. Wabtec Corp, 559 F.3d 110, 116 (2d Cir. 2009). However, if the preliminary injunction "'will affect government action taken in the public interest pursuant to a statutory or regulatory scheme,' it 'should be granted only if the moving party meets the more rigorous likelihood-of-success standard.'" Red Earth LLC v. U.S., 657 F.3d 138, 143 (2d Cir. 2011) (quoting Metro. Taxicab Bd. of Trade v.City of New York, 615 F.3d 152, 156 (2d Cir. 2010)). Preliminary injunctive relief "is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion." Moore v. Consol. Edison Co. of New York, Inc., 409 F.3d 506, 510-511 (2d Cir. 2005) (quotations and citations omitted).


A. Irreparable Harm

In asserting that they will suffer irreparable harm absent injunctive relief, Plaintiffs need not claim much beyond a violation of their First Amendment rights. See, e.g., Elrod v. Burns, 427 U.S. 347, 373 (1976); Vincenty v. Bloomberg, 476 F.3d 74, 89 (2d Cir. 2007). "The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod, 427 U.S. at 373. Irreparable harm can be presumed "[w]here a plaintiff alleges injury from a rule or regulation that directly limits speech." Bronx Household of Faith v. Bd. of Educ. of City of N.Y., 331 F.3d 342, 349 (2d Cir. 2003); Mitchell v. City of New Haven, No. 3:12cv370, 2012 WL 1188247, at *4 n.3 (D. Conn. Apr. 9, 2012). Therefore, "the presence of irreparable injury turns on whether the plaintiff has shown a clear likelihood of success on the merits." Beal v. Stern, 184 F.3d 117, 123-24 (2d Cir. 1999); see also Hsu v. Roslyn Union Free Sch. Dist. No. 3, 85 F.3d 839, 853 (2d Cir. 1996) ("[T]he irreparable harm inquiry depends on the merits of the claims."); Metro. Council, Inc. v. Safir, 99 F. Supp. 2d 438, 443 (S.D.N.Y. 2000) ("In a First Amendment case such as this one, ...

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