Marcavage v. City of New York, No. 10-4355 (2d Cir. 2012)
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Two protesters at the 2004 Republican National Convention at Madison Square Garden were arrested after they failed to comply with police instructions to move from an area where demonstrating was prohibited to one designated for protesting. They sued under 42 U.S.C. 1983, alleging that the policy violated the First Amendment and that their arrest violated the Fourth Amendment. The district court entered summary judgment in favor of defendants. The Second Circuit affirmed. The restriction on speech was a reasonable time, place, and manner restriction, and plaintiffs’ arrest was supported by probable cause.
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10-4355-cv Marcavage v. City of New York 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2011 (Argued: January 24, 2012 Decided: August 2, 2012) Docket No. 10-4355-cv - - - - - - - - - - - - - - - - - - - - - - -x MICHAEL MARCAVAGE, STEVEN C. LEFEMINE, PLAINTIFFS-APPELLANTS, 16 17 18 -v.- 19 20 21 22 23 24 25 26 27 THE CITY OF NEW YORK, RAYMOND KELLY, in his individual and official capacity as the Commissioner of the New York City Police Department, SERGEANT EBANKS, CAPTAIN STAPLES, OFFICER DONNELLY, AS YET UNKNOWN OFFICERS, in their individual capacities and official capacities as Police Officers for the New York Police Department, 28 29 30 31 32 33 34 35 DEFENDANTS-APPELLEES. - - - - - - - - - - - - - - - - - - - - - - -x Before: JACOBS, Chief Judge, LEVAL and LIVINGSTON, Circuit Judges. 1 Plaintiffs, two protesters at the 2004 Republican 2 National Convention at Madison Square Garden, were arrested 3 after they failed to comply with police instructions to move 4 from an area where demonstrating was prohibited to one 5 designated for protesting. 6 under 42 U.S.C. § 1983, alleging that the policy violated 7 the First Amendment and that their arrest violated the 8 Fourth Amendment and now appeal the judgment of the United 9 States District Court for the Southern District of New York They brought the present action 10 (Sullivan, J.) granting summary judgment in favor of the 11 defendants. 12 a reasonable time, place, and manner restriction, and that 13 Plaintiffs arrest was supported by probable cause. 14 We conclude that the restriction on speech was Affirmed. 15 16 17 18 James A. Campbell (Jeffrey A. Shafer, Brian W. Raum, on the briefs), Alliance Defense Fund, for Plaintiffs-Appellants. 19 20 21 22 23 Drake A. Colley (Edward F.X. Hart, on the brief), for Michael A. Cardozo, Corporation Counsel of the City of New York, for DefendantsAppellees. 24 25 DENNIS JACOBS, Chief Judge: Michael Marcavage and Steven Lefemine ( Plaintiffs ), 26 protesters at the 2004 Republican National Convention at 27 Madison Square Garden, were arrested after they failed to 2 1 comply with police instructions to move along from an area 2 where demonstrating was prohibited and to one designated for 3 protesting. 4 against the New York City Police Department ( NYPD ), the 5 Police Commissioner, three NYPD officers, and others 6 (collectively, Defendants ), seeking declaratory and 7 injunctive relief as well as money damages. 8 claim the NYPD s policy around the convention violated the 9 First Amendment and that Plaintiffs arrest violated the They brought this suit under 42 U.S.C. § 1983 Plaintiffs 10 Fourth Amendment. This appeal is taken from a judgment of 11 the United States District Court for the Southern District 12 of New York (Sullivan, J.) granting summary judgment in 13 favor of Defendants. 14 speech was a reasonable time, place, and manner restriction, 15 and that the arrests were supported by probable cause. We conclude that the restriction on 16 17 18 BACKGROUND The Convention. The 2004 Republican National 19 Convention ( the Convention ) was held from August 30 to 20 September 2 at Madison Square Garden ( the Garden ) in 21 midtown Manhattan. 22 understood that political conventions are potential 23 terrorist targets and therefore prepared for the possibility The security planners of the NYPD 3 1 that groups and individuals would engage in criminal conduct 2 that could significantly endanger public safety. 3 was also responsible for accommodating commuters, 4 businesses, and residents in the vicinity. 5 50,000 people were expected to attend the four-day 6 Convention. 7 volume of protest activity not seen in New York City in 8 decades, including potentially hundreds of thousands of 9 protesters throughout the city. 10 The NYPD As many as The NYPD anticipated that there would be a The Garden sits atop Pennsylvania Station ( Penn 11 Station ), one of the transportation hubs of New York City. 12 Approximately 1,300 trains and 600,000 riders pass through 13 Penn Station each day. 14 by vehicular and pedestrian traffic; a major event at the 15 Garden can bring thousands of additional pedestrians. 16 The vicinity is ordinarily congested The complex is a superblock bordered by Seventh and 17 Eighth Avenues to the east and west, and by 31st and 33rd 18 Streets to the south and north. 19 Seventh Avenue was closed to non-emergency vehicle traffic 20 from 31st Street to 34th Street. 21 Avenue and 32nd Street was open to pedestrians, who could 22 use it without waiting for non-emergency traffic. 23 24 4 During the Convention, The crosswalk at Seventh 1 The NYPD implemented a three-zone system outside the 2 Garden: a demonstration area, a frozen area (with no 3 pedestrian traffic), and a no-demonstration area. 4 In the frozen zone --the Seventh Avenue sidewalk 5 adjacent to the Garden between 31st and 33rd Streets-- 6 barriers were erected and all pedestrian traffic was 7 prohibited. 8 Directly across Seventh Avenue from the frozen zone was 9 the no-demonstration zone between 31st and 33rd Streets. 10 People on that east sidewalk were not permitted to protest, 11 distribute leaflets, or congregate in that area, even if 12 they remained in motion and kept up with the flow of 13 pedestrian traffic.1 NYPD officers advised people in the 1 Defendants contend that the zone was actually a nostanding zone, where people were not permitted to stand still or congregate but where they could engage in expressive activity, such as protesting, so long as they kept up with the flow of traffic and did not congregate in groups. However, Plaintiffs adduced testimony from NYPD officials that people in this zone were not permitted to demonstrate or distribute leaflets, even if they remained in motion and kept up with the flow of pedestrian traffic. Because this case comes to us on appeal from the grant of summary judgment for Defendants, we must view the evidence in the light most favorable to the non-moving party (here, Plaintiffs). Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003). Accordingly, we must credit Plaintiffs evidence and accept, as the district court did, that the zone along the east side of Seventh Avenue was a no-demonstration zone--not a no-standing zone. See Marcavage v. City of New York, No. 05 Civ. 4949(RJS), 2010 WL 3910355, at *5 (S.D.N.Y. Sept. 29, 2010). 5 1 vicinity of the Garden to go to the demonstration zone if 2 they wanted to protest. 3 The demonstration zone was the full width of Eighth 4 Avenue, extending south from 31st Street. 5 demonstration zone, expressive activity was permitted at any 6 time during the Convention. 7 and constructed a stage for demonstrators at the north end 8 of the demonstration area, near the 31st Street 9 intersection, closest to the Garden. 10 11 Within the The NYPD issued sound permits Thousands of protesters used the demonstration area. The Protest. On September 1, 2004, Plaintiffs were 12 standing in the no-demonstration zone between 32nd and 33rd 13 Streets, holding anti-abortion signs--one sign was four by 14 six feet, the other was three by five. 15 approximately five feet from the facade of the Pennsylvania 16 Hotel, where (they contend) they were outside the flow of 17 pedestrian traffic. 18 approached by police officers. Plaintiffs were After 10 to 15 minutes, they were 19 The officers repeatedly told Plaintiffs they could not 20 protest there, and directed them to the demonstration zone. 21 Plaintiffs objected that the demonstration zone was not 22 within sight and sound of the Convention attendees and that 23 they did not want to be in the demonstration zone lumped 24 with other demonstrators. At some point during the 6 1 encounter, Plaintiffs moved to the south side of 32nd 2 Street, in the general direction of the demonstration zone 3 (which was south and west of the initial location). 4 Plaintiffs continued to contest the officers commands. 5 told, Plaintiffs were ordered to leave 17 times by three 6 different police officers before they were informed that 7 they were blocking traffic and placed under arrest. 8 9 But All Marcavage and Lefemine were charged with disorderly conduct, and Marcavage was also charged with resisting 10 arrest. 11 dismissed. 12 contemplation of dismissal for his charge of disorderly 13 conduct. 14 All charges against Marcavage were ultimately Lefemine accepted an adjournment in The charge was ultimately dismissed. The Proceedings. Plaintiffs brought the present action 15 under § 1983 alleging violations of the First and Fourth 16 Amendments and seeking money damages and equitable relief. 17 The district court granted summary judgment for Defendants, 18 holding that the NYPD s policy was a permissible time, 19 place, and manner restriction on expression, and that 20 probable cause supported Plaintiffs arrest. 21 City of New York, No. 05 Civ. 4949(RJS), 2010 WL 3910355 22 (S.D.N.Y. Sept. 29, 2010). Marcavage v. Plaintiffs filed this appeal. 7 1 2 DISCUSSION We review the grant of summary judgment de novo. 3 Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d 4 Cir. 2003). 5 genuine issue as to any material fact and the moving party 6 is entitled to judgment as a matter of law. 7 assessing a motion for summary judgment, we are required to 8 resolve all ambiguities and draw all permissible factual 9 inferences in favor of the party against whom summary Summary judgment is appropriate if there is no Id. In 10 judgment [was granted]. Terry v. Ashcroft, 336 F.3d 128, 11 137 (2d Cir. 2003) (internal quotation marks omitted). 12 13 14 I A question has arisen as to this Court s jurisdiction 15 to consider the claims for declaratory and injunctive 16 relief. 17 Article III limits the subject matter jurisdiction of 18 federal courts to actual cases or controversies, U.S. 19 Const. art. III, § 2, cl. 1; accord Friends of the Earth, 20 Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180 21 (2000), which requires, among other things, that a plaintiff 22 sustain the burden of establishing standing, Raines v. Byrd, 23 521 U.S. 811, 818-19 (1997); Simon v. E. Ky. Welfare Rights 24 Org., 426 U.S. 26, 37-38 (1976). 8 1 Plaintiffs lack standing to pursue their equitable 2 claims. 3 judgment or an injunction, a plaintiff must show, inter 4 alia, a sufficient likelihood that he [or she] will again 5 be wronged in a similar way. 6 461 U.S. 95, 111 (1983). 7 demonstrate a certainly impending future injury. 8 v. Arkansas, 495 U.S. 149, 158 (1990) (internal quotation 9 marks omitted); accord O Shea v. Littleton, 414 U.S. 488, To obtain prospective relief, such as a declaratory City of Los Angeles v. Lyons, That is, a plaintiff must Whitmore 10 496 (1974). 11 injury, a plaintiff cannot rely solely on past injuries; 12 rather, the plaintiff must establish how he or she will be 13 injured prospectively and that the injury would be prevented 14 by the equitable relief sought. 15 59; Lyons, 461 U.S. at 102-03; O Shea, 414 U.S. at 495-96. 16 In establishing a certainly impending future Whitmore, 495 U.S. at 158- Neither party s national convention will be in New York 17 City in 2012, and there is no prospect that a national 18 convention will be coming anytime to the Garden, or that, if 19 one did, similar policies regarding pedestrian traffic and 20 protesters would be enacted or enforced. 21 have not demonstrated a certainly impending future injury 22 that could be redressed by this Court, we lack jurisdiction 23 to adjudicate their claims for equitable relief. 24 9 Since Plaintiffs 1 Standing to seek retrospective relief, such as damages, 2 requires a showing that [1] the plaintiff suffered an injury 3 in fact that is concrete and not conjectural or 4 hypothetical, [2] the injury is fairly traceable to the 5 actions of the defendant, and [3] the injury will be 6 redressed by a favorable decision. 7 Wildlife, 504 U.S. 555, 560-61 (1992). 8 requisite showing as to their claim for damages. 9 10 Lujan v. Defenders of Plaintiffs make the Because we have jurisdiction over the claims for money damages, we turn to them now. 11 12 13 II Plaintiffs contend that the no-demonstration zone along 14 Seventh Avenue was an unreasonable time, place, and manner 15 restriction, and therefore violated the First Amendment. 16 Preliminarily, we consider [1] whether Plaintiffs were 17 engaged in First Amendment protected activity [2] in a 18 traditional public forum, and [3] if the restriction on 19 speech was unrelated to content. 20 Racism, 491 U.S. 781, 790-91 (1989). See Ward v. Rock Against 21 First, Plaintiffs display of a political sign 22 constituted political speech, which is entitled to the 23 fullest possible measure of constitutional protection. 24 Members of the City Council v. Taxpayers for Vincent, 466 10 See 1 U.S. 789, 816 (1984); see also Frisby v. Schultz, 487 U.S. 2 474, 479 (1988) (peacefully picketing); United States v. 3 Grace, 461 U.S. 171, 176 (1983) (peacefully displaying signs 4 or leaflets). 5 Second, Plaintiffs were carrying out their expressive 6 activity in a traditional public forum. Sidewalks, of 7 course, are among those areas of public property that 8 traditionally have been held open to the public for 9 expressive activities, Grace, 461 U.S. at 179; accord 10 Frisby, 487 U.S. at 480, and the sidewalks of New York are 11 the prototypical traditional public forum, Schenck v. Pro- 12 Choice Network of W. N.Y., 519 U.S. 357, 377 (1997); accord 13 Loper v. N.Y.C. Police Dep t, 999 F.2d 699, 704 (2d Cir. 14 1993). 15 public fora, Make the Road by Walking, Inc. v. Turner, 378 16 F.3d 133, 142 (2d Cir. 2004)--though even there the right is 17 not absolute, United for Peace & Justice v. City of New 18 York, 323 F.3d 175, 176 (2d Cir. 2003) (per curiam). 19 Speech finds its greatest protection in traditional Third, as Plaintiffs concede, the restraint on 20 expressive activity was content neutral. 21 This concession is well-taken. 22 neutral when it is justified without reference to the 23 content of the regulated speech. 24 Playtime Theatres, Inc., 475 U.S. 41, 48 (1986) (emphasis 11 Blue Br. at 26. A regulation is content City of Renton v. 1 and internal quotation mark omitted). 2 expressive activity was not aimed at the content of the 3 message; no demonstrating of any kind was allowed in that 4 zone. 5 The restriction on Since Plaintiffs were engaged in expressive activity in 6 a public forum and the regulation was content neutral, the 7 restriction on speech near the Convention is properly 8 characterized as a time, place, and manner restriction. 9 Such restrictions are permissible if they [1] are 10 justified without reference to the content of the regulated 11 speech, [2] . . . are narrowly tailored to serve a 12 significant governmental interest, and [3] . . . leave open 13 ample alternative channels for communication of the 14 information. 15 Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984)). 16 Defendants bear the burden of demonstrating that the 17 regulation was constitutional. 18 Entm t Grp., Inc., 529 U.S. 803, 816-17 (2000); Deegan v. 19 City of Ithaca, 444 F.3d 135, 142 (2d Cir. 2006). 20 21 Ward, 491 U.S. at 791 (quoting Clark v. United States v. Playboy Since the restriction was content neutral, the decisive issues are narrow tailoring and alternative channels. 22 23 24 12 1 A 2 Whether the NYPD s policy was narrowly tailored to 3 serve a significant government interest depends on the 4 importance of the government s interest and the breadth of 5 the speech restriction. 6 7 1 8 Government certainly has a significant interest in 9 keeping its public spaces safe and free of congestion. 10 Bery v. City of New York, 97 F.3d 689, 697 (2d Cir. 1996); 11 accord Mastrovincenzo v. City of New York, 435 F.3d 78, 100 12 (2d Cir. 2006) ( [R]educing sidewalk and street congestion 13 in a city with eight million inhabitants[] constitute[s] [a] 14 significant governmental interest[] . . . . ) (internal 15 quotation marks omitted). 16 substantial government interest in the maintenance of 17 security at political conventions. 18 City of Boston, 378 F.3d 8, 12 (1st Cir. 2004). 19 And there can be no doubting the Bl(a)ck Tea Soc y v. Plaintiffs contend that Defendants adduced insufficient 20 evidence to support these interests and instead relied on 21 unspecific, generic security rationales. 22 The record amply establishes non-security reasons for 23 banning protesters from occupying a crowded sidewalk. 24 considerable interests of the millions of residents, 13 The 1 visitors, and workers must be balanced against the interest 2 of protesters. 3 F.2d 471, 478 (2d Cir. 1980); see also Mastrovincenzo, 435 4 F.3d at 100. 5 Garden is a crowded thoroughfare even without major sports 6 or political events at the Garden, with commuters, shoppers, 7 tourists, residents, and other people passing through. 8 freezing of the western sidewalk channeled all those 9 pedestrians to the one side designated a no-demonstration See Concerned Jewish Youth v. McGuire, 621 The stretch of Seventh Avenue in front of the 10 zone. 11 The keeping that channel clear for pedestrians. 12 The City had the requisite significant interest in The government interest in security is also 13 significant. In the Fourth Amendment context, we have held 14 that no express threat or special imminence is required 15 before we may accord great weight to the government s 16 interest in staving off considerable harm. 17 Kelly, 460 F.3d 260, 272 (2d Cir. 2006). 18 required is that the risk to public safety [be] substantial 19 and real instead of merely symbolic. 20 original) (quoting Chandler v. Miller, 520 U.S. 305, 322-23 21 (1997)). These principles also apply in the First Amendment 22 context. Because security protocols exist to deal with 23 hypothetical risks --and security planning 24 is necessarily concerned with managing potential risks, 14 MacWade v. All that is Id. (brackets in 1 which sometimes necessitates consideration of the worst-case 2 scenario --it is appropriate for governments to consider 3 possible security threats and the role that protesters may 4 play in causing such threats or inadvertently preventing the 5 authorities from thwarting or responding to such threats. 6 Citizens for Peace in Space v. City of Colo. Springs, 477 7 F.3d 1212, 1223-24 (10th Cir. 2007). 8 security protocol reduces a plausible and substantial safety 9 risk, it directly and effectively advances a substantial As long as a designed 10 government interest. Id. at 1224; see also Bl(a)ck Tea 11 Soc y, 378 F.3d at 13 ( [T]he government s judgment as to 12 the best means for achieving its legitimate objectives 13 deserves considerable respect. (citing Ward, 491 U.S. at 14 798-99)). 15 The police had to design measures to cope with a 16 security challenge that was altogether extraordinary. 17 Convention was in the middle of New York City, adjacent to 18 Penn Station. 19 the Convention itself. 20 would descend. 21 routed along two main arteries. 22 that year were the first following the 2001 terror attacks. 23 The President was coming, as well as the Vice President and 24 a host of other government officials. The Fifty thousand attendees were expected for Protesters of different persuasions Vehicle and pedestrian traffic would be re- 15 The national conventions These facts, taken 1 together, bespeak a significant--indeed, compelling-- 2 government interest in security. 3 4 2 5 The Government must also show that its policy was 6 narrowly tailored to achieve that significant government 7 interest. 8 Ward, 491 U.S. at 791. A regulation is narrowly tailored so long as [it] 9 . . . promotes a substantial government interest that would 10 be achieved less effectively absent the regulation, and is 11 not substantially broader than necessary to achieve the 12 government s interest. 13 States v. Albertini, 472 U.S. 675, 689 (1985)); accord 14 Deegan, 444 F.3d at 143 ( The narrowly tailored standard 15 does not tolerate a time, place, or manner regulation that 16 may burden substantially more speech than necessary to 17 achieve its goal . . . . ). 18 Id. at 799-800 (quoting United The no-demonstration zone was narrowly tailored to 19 achieve significant government interests. The restricted 20 zones were confined to a two-block stretch of Seventh Avenue 21 and were in place only during the four days of the 22 Convention. 23 congestion and security challenges that the Convention 24 presented. And the policy was tailored to meet the The frozen zone was limited to the sidewalk 16 1 immediately in front of a single side of the Garden. 2 no-demonstration zone was limited to the opposite sidewalk, 3 which had to be kept unobstructed to accommodate the heavy 4 pedestrian traffic that usually occupies both sides. 5 facts therefore distinguish this case from United States v. 6 Grace, 461 U.S. 171 (1983), and Lederman v. United States, 7 291 F.3d 36 (D.C. Cir. 2002), which both considered year- 8 round prohibitions on sidewalk demonstrations in places 9 without the dense crowds of protesters and pedestrians that 10 beset the holding of the Republican National Convention in 11 the middle of Manhattan. 12 The These Plaintiffs argue that the no-demonstration zone was not 13 narrowly tailored because protesters were barred even from 14 forms of expression that did not increase congestion, such 15 as carrying a sign while keeping up with the flow, or 16 standing to one side. 17 that a no-standing zone or no-large-sign zone would have 18 been a less restrictive alternative, but narrowly tailored 19 does not mean the least restrictive or least intrusive 20 means. 21 time, place, or manner of protected speech are not invalid 22 simply because there is some imaginable alternative that 23 might be less burdensome on speech. 24 Albertini, 472 U.S. at 689); accord id. at 800 ( [T]he It may be, as Plaintiffs suggest, Ward, 491 U.S. at 798. 17 [R]estrictions on the Id. at 797 (quoting 1 regulation will not be invalid simply because a court 2 concludes that the government s interest could be adequately 3 served by some less-speech-restrictive alternative. ). 4 regulation is narrowly tailored so long as [it] 5 . . . promotes a substantial government interest that would 6 be achieved less effectively absent the regulation and is 7 not substantially broader than necessary. 8 (internal quotation marks omitted). 9 A Id. at 799-800 The no-demonstration zone does not burden substantially 10 more speech than necessary, even if alternatives are 11 conceivable. 12 occlude pedestrian passage, especially when they picketed 13 back and forth. 14 also would risk the fact or appearance of selective 15 enforcement based on content, and would result in the 16 substantial, additional burdens of . . . maintaining 17 supervision of the protestors . . . and generally providing 18 enough manpower in close proximity to the protestors to 19 quickly handle any protest that turned violent. 20 for Peace in Space, 477 F.3d at 1223. 21 Even if protesters kept walking, they would Policing a less than clear-cut regulation Citizens Plaintiffs argue that the no-demonstration zone was not 22 narrowly tailored because it was a complete ban on 23 demonstrating. 24 tailored if, as Defendants have shown, each activity But [a] complete ban can be narrowly 18 1 within the proscription s scope is an appropriately targeted 2 evil. 3 Frisby, 487 U.S. at 485. Finally, Plaintiffs contend that justifications based 4 on security and congestion are premised on large numbers of 5 protesters whereas Plaintiffs are just two people standing 6 out of the way. 7 measured by the disorder that would result from granting an 8 exemption solely to [Plaintiffs] because if these two 9 plaintiffs were allowed a dispensation, so too must other 10 groups, which would then create a much larger threat to 11 the State s interest in crowd control and security. 12 Int l Soc y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 13 672, 685 (1992). 14 level officers with power and discretion to determine when 15 the number of protesters exceeds some unspecified 16 permissible number, whether to aggregate small groups of 17 protesters who may not agree, and to decide which group came 18 first and should be allowed to stay while others must leave. We disagree. The policy should not be See Plaintiffs approach would also vest line- 19 In short, the NYPD s small no-demonstration zone on a 20 two-block strip of Seventh Avenue was narrowly tailored to 21 address the threats to sidewalk congestion and security 22 created by an event the size and spectacle of a national 23 convention in midtown Manhattan. 24 19 1 B 2 It remains to decide whether the regulation leave[s] 3 open ample alternative channels for communication of the 4 information. 5 mark omitted). 6 Ward, 491 U.S. at 791 (internal quotation Although an alternative channel for communication must 7 be available, it is clear that [t]he First Amendment 8 . . . does not guarantee [protesters] access to every or 9 even the best channels or locations for their expression. 10 Carew-Reid v. Metro. Transp. Auth., 903 F.2d 914, 919 (2d 11 Cir. 1990). 12 channels exist does not imply that alternative channels 13 must be perfect substitutes for those channels denied to 14 plaintiffs by the regulation at hand; indeed, were we to 15 interpret the requirement in this way, no alternative 16 channels could ever be deemed ample. 17 F.3d at 101; see also Irish Lesbian & Gay Org. v. Giuliani, 18 918 F. Supp. 732, 744 (S.D.N.Y. 1996) ( Whether ample 19 alternatives are available does not depend on the preference 20 of the speaker for one method or another. ). 21 required is that an alternative channel be ample--i.e., an 22 adequate channel for communication. 23 144. The requirement that ample alternative 24 20 Mastrovincenzo, 435 All that is Deegan, 444 F.3d at 1 The alternative channel for communication available for 2 demonstrations at the Convention was a demonstration zone 3 spanning the width of Eighth Avenue, starting at the 4 southwest corner of the Garden, one avenue from the primary 5 entrance to the Garden. 6 and sound amplification equipment, which all the protesters 7 (including Plaintiffs) were free to use. 8 9 The zone was equipped with a stage In this Circuit, an alternative channel is adequate and therefore ample if it is within close proximity to the 10 intended audience. United for Peace & Justice, 323 F.3d at 11 177; see Concerned Jewish Youth, 621 F.2d at 472-74, 476-77. 12 In United for Peace & Justice, the city denied a permit to 13 march past the United Nations headquarters and instead 14 granted a permit for a stationary protest at a nearby park-- 15 on the other side of a major avenue, and two blocks north of 16 the entrance to the United Nations. 17 also United for Peace & Justice v. City of New York, 243 F. 18 Supp. 2d 19, 21, 29 (S.D.N.Y. 2003), aff d 323 F.3d 175 (2d 19 Cir. 2003). 20 demonstrate in close proximity to the United Nations, the 21 restriction on their march comported with the First 22 Amendment. 23 also Concerned Jewish Youth, 621 F.2d at 472-74, 476-77 24 (upholding a restriction that prevented protesters from 323 F.3d at 177; see Because the protesters were permitted to United for Peace & Justice, 323 F.3d at 177; see 21 1 marching in front of the Russian Mission and instead 2 permitted twelve of them to protest in a small area down the 3 street because it provided an ample alternative channel for 4 communication). 5 Plaintiffs chief argument on appeal is that the 6 demonstration zone was inadequate because it was not within 7 sight and sound of the intended audience, which they 8 identify as the delegates. 9 consideration in some instances, none of the cases cited by 10 Plaintiffs establishes sight and sound as a constitutional 11 requirement. 12 sound of the intended audience, so there was no occasion to 13 say whether sight and sound proximity is a required feature 14 of an adequate alternative channel. 15 City of Chicago, 659 F.3d 626, 631 (7th Cir. 2011), Citizens 16 for Peace in Space, 477 F.3d at 1226; Menotti v. City of 17 Seattle, 409 F.3d 1113, 1138 (9th Cir. 2005); Bl(a)ck Tea 18 Soc y, 378 F.3d at 14. 19 holding that sight and sound access is constitutionally 20 compelled.2 Although this may be a relevant In each, the protester was within sight and See, e.g., Marcavage v. Accordingly, none could support a 2 In Bay Area Peace Navy v. United States, 914 F.2d 1224 (9th Cir. 1990), the protesters were not within sight and sound of the intended audience. This case is not persuasive. It is a split decision from another circuit in which the majority held that the speech restriction was not narrowly tailored, so the discussion of ample alternative channels was therefore dictum. 22 1 Plaintiffs argue that they should have been able to 2 protest at 32nd Street and Seventh Avenue--the primary point 3 of ingress and egress to Penn Station and the Garden. 4 if not all, of the delegates may have entered that way. 5 there are many ways to arrive at the Garden (car, bus, 6 train, foot), and there are different lines of approach 7 along the City s grid.3 8 the Garden by a route that brought them close to the 9 demonstration zone along Eighth Avenue. Many, But Many delegates may have traveled to In short, 10 Plaintiffs could not have been seen and heard by most of the 11 delegates--let alone all of them--unless demonstrators were 12 allowed to congregate at the main entrance or were admitted 13 to the innards of the Garden, where they had no 14 constitutional right to be, Bl(a)ck Tea Soc y, 378 F.3d at 15 14. 16 Whether an alternative channel is adequate cannot be 17 determined in an objective vacuum, but instead requires 18 practical recognition [of] the facts. 3 Citizens for Peace Plaintiffs contend that the entrance to the Garden at 32nd Street near Seventh Avenue was the only open entrance. This argument is an overreading of the undisputed evidence: Because of the various closures to ingress and egress to and from Penn Station and [the Garden], . . . the 32nd Street approach to Penn Station and [the Garden] became the primary point of ingress and egress to that venue for thousands of pedestrians and commuters. Joint App x 87 (Decl. of (Retired) NYPD Chief Bruce Smokla, § 16) (emphasis added). Implicit in the designation of one entrance as primary is that there are one or more others. 23 1 in Space, 477 F.3d at 1226 (internal quotation marks 2 omitted). 3 gridlock to assassination. 4 demonstration zone one avenue from the primary entrance to 5 the Garden was an ample alternative channel for protesters, 6 such as Plaintiffs. Here, the manifold risks ranged from pedestrian 7 8 Under such circumstances, a * * * Because the NYPD s limitation on speech around the 9 Convention was content neutral, was narrowly tailored to 10 achieve a substantial government interest, and allowed an 11 ample alternative channel of communication, it was a 12 permissible time, place, and manner restriction on speech. 13 Accordingly, the district court correctly dismissed 14 Plaintiffs First Amendment claim. 15 16 17 III Both Plaintiffs were arrested for disorderly conduct, 18 and Marcavage was also arrested for resisting arrest. 19 Plaintiffs contend that their arrest violated the Fourth 20 Amendment. 21 Defendants counter that probable cause existed. Plaintiffs were arrested without a warrant. Such an 22 arrest comports with the Fourth Amendment if the officer has 23 probable cause to believe that a criminal offense has been 24 or is being committed. Devenpeck v. Alford, 543 U.S. 146, 24 1 152 (2004). Probable cause exists where the facts and 2 circumstances within . . . the officers knowledge and of 3 which they had reasonably trustworthy information are 4 sufficient in themselves to warrant a man of reasonable 5 caution in the belief that an offense has been or is being 6 committed by the person to be arrested. 7 York, 442 U.S. 200, 208 n.9 (1979) (internal quotation marks 8 and brackets omitted). 9 must examine the events leading up to the arrest, and then Dunaway v. New A court assessing probable cause 10 decide whether these historical facts, viewed from the 11 standpoint of an objectively reasonable police officer, 12 amount to probable cause. 13 366, 371 (2003) (internal quotation marks omitted). 14 Maryland v. Pringle, 540 U.S. Defendants contend there was probable cause to arrest 15 Plaintiffs for disorderly conduct,4 obstruction of 16 governmental administration (under New York Penal Law 17 § 195.055 and New York City Charter § 435(a)6), and failure 4 A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof: . . . (5) He obstructs vehicular or pedestrian traffic; or (6) He congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse . . . . N.Y. Penal Law § 240.20(5)-(6) (McKinney 2010). 5 A person is guilty of obstructing governmental administration when he intentionally obstructs, impairs or perverts the administration of law or 25 1 to comply with lawful orders to disperse. 2 Amendment claim turns on whether probable cause existed to 3 arrest for any crime, not whether probable cause existed 4 with respect to each individual charge. 5 U.S. at 153-56. 6 was probable cause to arrest Plaintiffs for any single 7 offense. 8 2006). 9 A Fourth See Devenpeck, 543 Accordingly, Defendants prevail if there See Jaegly v. Couch, 439 F.3d 149, 154 (2d Cir. Probable cause supported the arrests for obstruction of 10 governmental administration. Plaintiffs rejected 17 11 directives (by three officers) to leave the no-demonstration other governmental function or prevents or attempts to prevent a public servant from performing an official function, by means of intimidation, physical force or interference, or by means of any independently unlawful act . . . . N.Y. Penal Law § 195.05 (McKinney 2010). 6 The police department . . . shall have the power and it shall be their duty to preserve the public peace, prevent crime, detect and arrest offenders, suppress riots, mobs and insurrections, disperse unlawful or dangerous assemblages and assemblages which obstruct the free passage of public streets, sidewalks, parks and places; . . . regulate, direct, control and restrict the movement of vehicular and pedestrian traffic for the facilitation of traffic and the convenience of the public as well as the proper protection of human life and health; remove all nuisances in the public streets, parks and places; . . . and for these purposes to arrest all persons guilty of violating any law or ordinance for the suppression or punishment of crimes or offenses. N.Y.C. Charter § 435(a). 26 1 zone, insisting on a constitutional right to demonstrate 2 where they stood. 3 to obey an unconstitutional order, because we have held that 4 the order was constitutional. 5 We need not decide whether Plaintiffs had Plaintiffs argue that there are genuine disputes as to 6 what occurred during their interaction with the officers 7 such that probable cause cannot be established on the 8 undisputed factual record. 9 characterize their behavior toward the officers as cordial, 10 and contend that they were compliant because they gravitated 11 in the general direction of the demonstration zone. 12 Plaintiffs made an audio recording of their interaction with 13 the officers, and that recording dooms their assertion. 14 Although on summary judgment the evidence must be viewed in 15 the light most favorable to Plaintiffs as the non-moving 16 parties, when there is reliable objective evidence--such as 17 a recording--the evidence may speak for itself. 18 v. Harris, 550 U.S. 372, 378-81 (2007). 19 in the light most favorable to Plaintiffs, the audio 20 recording shows indisputably that they were neither 21 courteous nor compliant. 22 compliant; in effect, they courted arrest. 23 could have perceived that Plaintiffs were obstructing 24 governmental administration and failing to comply with a For example, Plaintiffs But See Scott Here, even viewed Plaintiffs were hostile and non- 27 The officers 1 police order to disperse. 2 probable cause to arrest, Plaintiffs Fourth Amendment claim 3 was correctly dismissed.7 4 5 Since the police therefore had CONCLUSION Plaintiffs motion, dkt. 31, to file a non-conforming 6 appendix is granted. 7 The judgment of the district court is affirmed. 7 Captain Staples also argues that he is entitled to qualified immunity. Because we conclude there was probable cause for Plaintiffs arrest, a fortiori he would be entitled to qualified immunity on this claim. See Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004) (holding that an officer is entitled to qualified immunity so long as it was not obvious that there was no probable cause). 28
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