United States District Court, S.D. New York
UNITED VETERANS MEMORIAL AND PATRIOTIC ASSOCIATION OF THE CITY OF NEW ROCHELLE and PETER PARENTE, Plaintiffs,
CITY OF NEW ROCHELLE, et al., Defendants
For United Veterans Memorial and Patriotic Association of the City of New Rochelle, Peter Parente, Plaintiffs: Erin Elizabeth Mersino, PRO HAC VICE, Thomas More Law Center, Ann Arbor, MI; George W. Wright, George W. Wright & Associates, LLC, New York, NY.
For City of New Rochelle, Noam Bramson, individually and in his official capacity as Mayor of the City of New Rochelle, Charles B. Strome, III, individually and in his official capacity as City Manager of the City of New Rochelle, Defendants: Eliza Mae Scheibel, Peter Alexander Meisels, Wilson Elser, Moskowitz Edelman & Dicker LLP (White Plains), White Plains, NY; John Martin Flannery, Wilson Elser Moskowitz Edelman & Dicker LLP (CT), Stamford, CT; Lalit Kumar Loomba, Wilson, Elser, Moskowitz, Edelman & Dicker, (WPls), White Plains, NY.
For Barry R. Fertel, individually and in his official capacity as City Council Member of the City of New Rochelle, Shari B. Rackman, individually and in her official capacity as City Council Member of the City of New Rochelle, Jared R. Rice, individually and in his official capacity as City Council Member of the City of New Rochelle, Defendants: Eliza Mae Scheibel, Wilson Elser, Moskowitz Edelman & Dicker LLP (White Plains), White Plains, NY.
OPINION & ORDER
CATHY SEIBEL, UNITED STATES DISTRICT JUDGE.
Before the Court is Defendants' Motion to Dismiss Plaintiffs' Second Amended Complaint, filed on April 24, 2014. (Doc. 37.) For the reasons stated below, the Motion is GRANTED.
For purposes of this Motion, the Court accepts as true the facts (but not the conclusions) alleged by Plaintiffs in the Second Amended Complaint (" SAC" ), (Doc. 27).
Plaintiff United Veterans Memorial and Patriotic Association of the City of New Rochelle (" United Veterans" ) is an association that " exercise[s] responsibility for all veterans affairs and duties throughout the City of New Rochelle," including organizing the annual Memorial Day and Veterans Day events and numerous other ceremonies. (SAC ¶ 11.) United Veterans
acts as the liaison between the City of New Rochelle and several other veterans' groups and provides services to the community, including teaching schoolchildren about military history and providing support to veterans. ( Id. ¶ ¶ 12-14.) Plaintiff Peter Parente is the president of United Veterans, a combat veteran and a resident of the City of New Rochelle. ( Id. ¶ 16.)
Defendants are the City of New Rochelle (" the City" ), City Mayor Noam Bramson, City Manager Charles Strome, and four members of the City Council -- Barry Fertel, Ivar Hyden, Shari Rackman and Jared Rice. ( Id. ¶ ¶ 20-24.)
The New Rochelle Armory (" the Armory" ) was built in 1931 and was an active duty military post until 1997. ( Id. ¶ ¶ 15, 25.) In 1997, New York State conveyed the Armory to the City by a deed that requires that the property remain open for public use " for park, recreation, street and highway purposes." ( Id. ¶ ¶ 26-27.) The City " generally granted United Veterans and its predecessor organizations the right to display and maintain flags" on the flagpole located on the grounds of the Armory, which are open and accessible to the general public. ( Id. ¶ ¶ 28, 30.) Since 1997, Plaintiffs have purchased the flags displayed on the flagpole, replaced those flags when they have become tattered, provided and replaced the rope used to hold the flags, and painted the flagpole and anchors when needed. ( Id. ¶ ¶ 32-35.) Plaintiffs also paid for and installed a light to illuminate the flagpole. ( Id. ¶ 37.)
On March 21, 2013, Plaintiffs held a flag ceremony at the Armory at which they retired a tattered American Flag and replaced it with a new one that had been donated by United Veterans to the City. ( Id.) Below the American Flag, United Veterans hung a historical American flag known as the " Gadsden Flag." ( Id. ¶ 38.) The Gadsden Flag is named after Christopher Gadsden, a Revolutionary War colonel who gave it to the commander-in-chief of the Continental Navy before the Navy's first-ever mission in 1775. ( Id. ¶ ¶ 39, 44.) The flag is yellow and depicts a coiled rattlesnake above the words " Don't Tread On Me." ( Id. ¶ 39.) The Gadsden Flag " is of particular importance, meaning and relevance to the New Rochelle Armory" because it is one of only a few U.S. naval armories still in existence. ( Id. ¶ ¶ 46-47.) Plaintiffs' purpose in flying the Gadsden Flag at the Armory was " to honor and represent our Nation's proud history and strength, as well as the sacrifices of the many Navy and Marine Corps veterans who have served under the Gadsden Flag throughout our Nation's history." ( Id. ¶ 48; see id. ¶ 76.)
A few days after the flag ceremony, on March 27, 2013, Defendant Strome, the City Manager, emailed Plaintiff Parente that he had received numerous complaints about the Gadsden Flag displayed at the Armory. ( Id. ¶ 53.) He stated that " in your email to me relative to the ceremony last week, you only mentioned that you would be replacing the American Flag and never mentioned this flag," and that he had been told that it was associated with the Tea Party and had a political message. ( Id.) Mr. Strome further stated that he had " directed the City's Department of Public Works to remove this flag from the Armory flagpole." ( Id.) Mr. Parente, who is not a member of the Tea Party ( id. ¶ 72), replied that the Gadsden Flag has deep-rooted military significance, is non-partisan and pre-dates the Tea Party ( id. ¶ 54). The following day, Mr. Strome telephoned Mr. Parente and told him that the flag could remain flying. ( Id. ¶ 55.) Later that day, however, Mr. Strome emailed
Mr. Parente and told him that " a majority of the New Rochelle City Council has requested that the flag be removed [and as] a result, the Public Works Department will remove the flag." ( Id. ¶ 56.) The flag was taken down ...