Protest Lawyering: Theory and Practice Friday, February 22, 2013; 9:00 AM to 5:00 PM

NYCLA-CLE I n s t i t u t e toward certification inciviltriallaw, criminaltriallaw, workerscompensation lawand/ormatrimonial law. hours oftotalCLE credit.Ofthese,3qualify ashoursofcreditforEthics/Professionalism, and0qualify ashoursofcredit This programhas beenapprovedbytheBoard ofContinuingLegalEducation oftheSupremeCourt NewJerseyfor8 Board foramaximumof8 Transitional &Non-Transitional credithours:3Ethics;2Skills;PP This coursehasbeenapproved inaccordancewiththerequirementsofNew T P Prepared inconnectionwithaContinuingLegalEducationcoursepresented heory at New York CountyLawyers’ Association, 14 Vesey Street, New York, NY 8 rotest TRANSITIONAL &NON-TRANSITIONAL Louis Crespo, NYCLA’s CivilRights&LibertiesCommittee Samuel B.Cohen, presented onFriday, February22,2013. P P

r g o r r g o r and Special Referee, Sup.Ct.,NYCounty L a a Stecklow Cohen&Thompson m m C C awyering o o - C - s p P h o I A n r o s s r : ractice York State ContinuingLegalEducation MCLE CREDITS:

Information Regarding CLE Credits and Certification Protest Lawyering: Theory and Practice Friday, February 22, 2013; 9:00 AM to 5:00 PM

The New York State CLE Board Regulations require all accredited CLE providers to provide documentation that CLE course attendees are, in fact, present during the course. Please review the following NYCLA rules for MCLE credit allocation and certificate distribution.

i. You must sign-in and note the time of arrival to receive your course materials and receive MCLE credit. The time will be verified by the Program Assistant.

ii. You will receive your MCLE certificate as you exit the room at the end of the course. The certificates will bear your name and will be arranged in alphabetical order on the tables directly outside the auditorium.

iii. If you arrive after the course has begun, you must sign-in and note the time of your arrival. The time will be verified by the Program Assistant. If it has been determined that you will still receive educational value by attending a portion of the program, you will receive a pro-rated CLE certificate.

iv. Please note: We can only certify MCLE credit for the actual time you are in attendance. If you leave before the end of the course, you must sign-out and enter the time you are leaving. The time will be verified by the Program Assistant. Again, if it has been determined that you received educational value from attending a portion of the program, your CLE credits will be pro-rated and the certificate will be mailed to you within one week.

v. If you leave early and do not sign out, we will assume that you left at the midpoint of the course. If it has been determined that you received educational value from the portion of the program you attended, we will pro-rate the credits accordingly, unless you can provide verification of course completion. Your certificate will be mailed to you within one week.

Thank you for choosing NYCLA as your CLE provider!

New York County Lawyers’ Association Continuing Legal Education Institute 14 Vesey Street, New York, N.Y. 10007 • (212) 267-6646

Protest Lawyering: Theory and Practice Friday, February 22, 2013 9:00AM – 5:00 PM

Program Co-sponsor: NYCLA’s Civil Rights & Liberties Committee

Program Co-Chairs: Louis Crespo, Special Referee, Sup. Ct., NY County and Samuel B. Cohen, Stecklow Cohen & Thompson

Faculty: Samuel Cohen, Stecklow Cohen & Thompson; Alan Levine, LatinoJustice PRLDEF; Meghan Maurus, New York Law Collective; David Rankin, Rankin & Taylor; Paula Segal, 596Acres.org; Norman Siegel, Siegel Teitelbaum & Evans LLP; Michael L. Spiegel, Esq.; Wylie Stecklow, Stecklow Cohen & Thompson;

AGENDA

8:30AM – 9:00AM Registration

9:00AM – 11:05AM Morning Session 1: Right to Engage in Peaceful Protest Activity Right to Distribute Material/Public Press Conference/Amplification Right Protest & Reasonable Limitation

11:05 AM – 11:15 AM BREAK

11:15 AM – 12:40 PM Morning Session 2: Applicable Federal, State, and Municipal Statutes, Codes and Regulations Federal and State Case Interpretation Ethics: Attorney/Client and Non-Permit Protest/Confidentiality vs Disclosure

12:40PM – 1:15PM Lunch (On Your Own)

1:15PM – 3:20PM Afternoon Session 1: Common Protest Related Criminal Charges Utilizing Common Evidentiary Resources

3:20PM – 3:30PM BREAK

3:30PM – 4:45 PM Afternoon Session 2: Ethics: Rights, Duties and Accountability Legal Observer and Protest Lawyer Models

4:45 PM – 5:30 PM Networking Reception

New York County Lawyers’ Association Continuing Legal Education Institute 14 Vesey Street, New York, N.Y. 10007 • (212) 267-6646

Protest Lawyering: Theory and Practice Friday, February 22, 2013 9:00AM – 5:00 PM

Program Co-sponsor: NYCLA’s Civil Rights & Liberties Committee

Program Co-Chairs: Louis Crespo, Special Referee, Sup. Ct., NY County and Samuel B. Cohen, Stecklow Cohen & Thompson

Table of Contents

Morning Sessions -- Right to Protest and Knowing Your Rights

Sound Device Permit Application NYC Zoning Resolution NYC Charter, Code, Amendments & Rules, Title 10, Chapter 1, Public Safety People v. Nixson Dinler v. City of New York Shuttlesworth v. City of Birmingham, Ala Application for Parade Permit Evans v. Newton New York v. Beck New York City, N.Y., Code § 10-110 N.Y. Comp. Codes R. & Regs. tit. 9, § 300-1.2, Title 9. Metropolitan Council, Inc. v. Safir NYPD Legal Guidelines for Republican National Convention 2004 Federal Special Permit – National Park Service, NY Sample

Afternoon Sessions: Common Protest Related Criminal Charges; Common Evidentiary Resources; Legal Observer and Protest Lawyer Models

New York v. Nunez New York v. Nunez, Amicus Brief in Support of Motion to DismissMEMORANDUM OF LAW New York v. Nunez, Exhibits to Amicus Brief Citywide Privately Owned Public Space, Current Public Plaza Standards Ethics Materials

Within Each Lawyer’s Conscious a Touchstone: Law, Morality, and Attorney Civil Disobedience, by Robert M. Palumbos, 153 University of Pennsylvania Law Review 1053

Lawyering for Social Change, Karen L. Loewy, 27 Fordham Urban Law Journal 1869

PROTEST LAWYERING: Theory and Practice

FEBRUARY 22, 2013

COURSE OUTLINE

Morning Session 1: Primer: Intro., Right to Protest / Knowing Your Rights I. Right to engage in peaceful protest activity (demonstration/rallies/march) A. Public Areas 1. sidewalks, parks, and streets a) regulations, or lack thereof, of sidewalks and streets: do you need a permit to demonstrate? b) Parade Permit c) Parks Assembly/Event Permit.

B. POPs 1. What is a POPS space? a) Privately Owned Public Space b) POPS Designations c) Lack of clear 1st amendment positioning

II. Right distribute material/public press conference/amplification A. handbills/leaflets 1. relevant guidelines and rules B. press conferences 1. on streets 2. in parks 3. amplified sound C. public mic., 1. Amplified sound permit 2. People’s Microphone

III. Right Protest & Reasonable Limitation A. content / speech B. time and place C. permit/license

Morning Session 2: Permitting

IV. Applicable Fed., State and Municipal Statutes, Codes, Regulations A. Federal Property / Law, Regs., and Rules B. State Property / Laws, Regs., and Rules C. Municipal Property / Regs, and Rules

V. Federal & States Cases Interp., Applicable Fed., State and Municipal Statutes, Codes, Regulations

VI. Ethics: Attorney/Client & Non-Permit Protest / Confidentiality v Disclosure

Afternoon Session 1

VII. Common protest related criminal charges A. Elements of common protest charges B. Practice tips for defending protesters- bail to jail 1. Tracking arrestees through the system 2. Arraignment 3. Mass defense coordination 4. Liaising with prosecutors 5. Motion practice 6. Dispositions and counseling re: dispositions

VIII. Utilizing common evidentiary resources A. Brief recap on introducing media evidence, i.e., videos, photos and recordings B. Best practices for witness statements C. Best practices for collecting recordings 1. Demand for preservation of ambient recordings (security videos, etc.) 2. TARU video 3. Internet resources 4. Livestream video

Afternoon Session 2Ethics: –Rights, Duties, Obligations and Accountability A. When intervention on behalf of protesters is permissible B. When intervention with protesters is required C. Disclosure of interest/affiliation under various models D. Disclosure of interest-Civil litigation E. Lawyering in the context of civil disobedience

X. Legal Observer and Protest Lawyer Models

A. NLG legal observer model (fact finding) B. Retained counsel for organization model C. Counsel at large model

Morning Sessions -- Right to Protest and Knowing Your Rights

SOUND DEVICE APPLICATION Precinct ______PD 656-041A (Rev. 09-07) Approval Date ______NOTINSTRUCTIONS A PERMIT 1. This is an application, NOT a sound device permit. 2. All answers must be either typewritten or printed in ink. 3. File application in the precinct where the device is to be used. 4. File application at least five days before the day of the event. Exceptions to this requirement are listed below. 5. A fee of $45 for the first day’s use of the permit will be required upon approval of the application and receipt of the sound device permit. 6. Make Bank Teller’s Check, Certified Check or Money Order payable to the Police Department, City of New York. 7. If approved, the permit is to be picked up on the day of the event or as directed by the precinct staff.

Name of Applicant Address Phone

Is Applicant a Corporation, Organization, or Association? Yes No If Yes, Indicate: Name Address Phone

Event Location Date Time From To

Event Location Date FromTime To

Is location within 500 feet of any School, Yes Approximately how many feet from the device is speaker’s Approximately how many people will be at event? Church, Hospital or Similar Institution? No voice proposed to be heard? ______

Are Funds to be Solicited? Yes No Has Permit from Dept. of Social Services been obtained? Yes No

Dept. of Social Services Permit No. ______If No, explain:

Penalty for Falsification of any statement made herein is an offense punishable by a fine or imprisonment or both. Signature of Applicant or Agent

Investigated By: Precinct: Approved Disapproved If Disapproved, Reason:

Who Notified: Approved Disapproved If Disapproved, Reason: Area Office Notified Yes No

Does Event Affect Adjoining Precinct? Yes No If Yes, Who Notified: Comments:

Signature of Commanding Officer

PERMIT TO OPERATE SOUND DEVICES Section 10-108 of the Administrative Code, in Relation to Use of Sound Devices, provides as follows: 1. SPECIAL RESTRICTIONS. The police commissioner shall not issue any permit for the use of a sound device or apparatus: In any location within five hundred feet of a school, courthouse or church, during the hours of school, court or worship, respectively, or within five hundred feet of any hospital or similar institution; in any location where the commissioner, upon investigation, shall determine that the conditions of vehicular or pedestrian traffic or both are such that the use of such a device or apparatus will constitute a threat to the safety of pedestrians or vehicular operators; in any location where the commissioner, upon investigation, shall determine that conditions of overcrowding or of street repair or other physical conditions are such that the use of a sound device or apparatus will deprive the public of the right to the safe, comfortable, convenient and peaceful enjoyment of any public street, park or place for street, park or other public purposes, or will constitute a threat to the safety of pedestrians or vehicle operators; in or on any vehicle or other device while it is in transit; between the hours of 10 p.m. and 9 a.m.; or between the hours of 8 p.m. or sunset, whichever is later, and 9 a.m. on weekdays and between the hours of 8 p.m. or sunset, whichever is later, and 10 a.m. on weekends and public holidays, in any location within fifty feet of any building that is lawfully occupied for residential use. The distance of fifty feet shall be measured in a straight line from the point on the exterior wall of such building nearest to any point in the location for which the permit is sought. 2. POWER OF POLICE COMMISSIONER. Any permit issued pursuant to this section may be revoked by the police commissioner for cause. 3. FEES. The fee for each sound device permit in connection with matters of public interest or in political campaigns shall be $45.00 per day. No fees to be charged for permits issued for use of sound devices used by any bureau, commission, board or department for the United States government, the State of New York, and the City of New York. 4. VIOLATIONS. Any person who shall violate any provision of this section, upon conviction thereof, shall be punished by a fine of not more than one hundred dollars or imprisonment for thirty days, or both. Any person who shall violate any provision of this section, any rule promulgated pursuant thereto or the terms of a permit issued pursuant to this section, shall be liable for a civil penalty recoverable in a civil action brought in the name of the police commissioner or the commissioner of environmental protection or in a proceeding before the environmental control board in an amount of two hundred fifty dollars for the first violation, five hundred dollars for the second violation and seven hundred fifty dollars for the third and each subsequent violation. However, any person who commits a fourth and any subsequent violation within a period of six months shall be classified as a persistent violator and shall be liable for a civil penalty of one thousand dollars for each such violation.

New York City, N.Y., Code § 10-108

NEW YORK CITY CHARTER, CODE, AMENDMENTS & RULES NEW YORK CITY ADMINISTRATIVE CODE TITLE 10. PUBLIC SAFETY CHAPTER 1. PUBLIC SAFETY.

Currency up to Local Law 40 of 2012 and Chapters 1 - 447 of the Laws of the State of New York for 2012

§ 10-108. Regulation of sound devices or apparatus. a. Legislative declaration. It is hereby declared that the use or operation of any radio device or apparatus or any device or apparatus for the amplification of sounds from any radio, phonograph or other sound-making or sound-producing device, or any device or apparatus for the reproduction or amplification of the human voice or other sounds, in front of or outside of any building, place or premises, or in or through any window, doorway or opening of such building, place or premises, abutting or adjacent to a public street, park or place, or in or upon any vehicle operated, standing or being in or upon any public street, park or place, where the sounds therefrom may be heard upon any public street, park or place, or from any stand, platform or other structure, or from any airplane or other device used for flying, flying over the city, or on a boat or on the waters within the jurisdiction of the city, or anywhere on or in the public streets, parks or places, is detrimental to the health, welfare and safety of the inhabitants of the city, in that such use or operation diverts the attention of pedestrians and vehicle operators in the public streets, parks and places, thus increasing traffic hazards and causing injury to life and limb. It is hereby further declared that such use or operation disturbs the public peace and comfort and the peaceful enjoyment by the people of their rights to use the public streets, parks and places for street, park and other public purposes and disturbs the peace, quiet and comfort of the neighboring inhabitants. Therefore, it is hereby declared as a matter of legislative determination that the prohibition of such use or operation for commercial or business advertising purposes and the proper regulation of such use and operation for all other purposes is essential to protect the health, welfare and safety of the inhabitants of the city, to secure the health, safety, comfort, convenience, and peaceful enjoyment by the people of their rights to use the public streets, parks and places for street, park and other public purposes and to secure the peace, quiet and comfort of the city's inhabitants. It is hereby further declared as a matter of legislative determination that the expense of supervising and regulating the use and operation of such sound

1 devices and apparatus for purposes other than commercial and business advertising purposes should be borne by the persons using or operating such devices and apparatus and that the requirement of a nominal fee for the issuance of a permit for such use and operation as hereinafter prescribed is intended to defray the expenses of regulating such use or operation for the health, welfare and safety of all the people. b. Definitions. As used in this section: 1. The term “public holidays” shall mean those days expressly set forth in section twenty-four of the general construction law.

2. The term “sound device or apparatus” shall mean any radio device or apparatus, or any device or apparatus for the amplification of any sounds from any radio, phonograph, or other sound-making or sound-producing device, or any device or apparatus for the reproduction or amplification of the human voice or other sounds;

3. The phrase “to use or operate any sound device or apparatus in, on, near or adjacent to any public street, park or place,” shall mean to use or operate or cause to be used or operated any sound device or apparatus in front or outside of any building, place or premises, or in or through any window, doorway or opening of such building, place or premises, abutting on or adjacent to a public street, park or place, or in or upon any vehicle operated, standing or being in or on any public street, park or place, where the sounds therefrom may be heard upon any public street, park or place, or from any stand, platform or other structure, or from any other airplane or other device used for flying, flying over the city, or on a boat or on the waters within the jurisdiction of the city, or anywhere on the public streets, parks or places. c. Use and operation of the sound devices and apparatus for commercial and business advertising purposes. It shall be unlawful for any person to use or operate any sound device or apparatus in, on, near or adjacent to any public street, park or place, for commercial and business advertising purpose. d. Use and operation of sound devices and apparatus for other than commercial and business advertising purposes; permit required. It shall be unlawful for any person to use or operate any sound device or apparatus, in, on, near or adjacent to any public street, park or place, unless such person shall have first obtained a permit to be issued by the police commissioner in the manner hereinafter prescribed and unless the police commissioner shall comply with the provisions of this section and the terms and conditions prescribed in such permit. e. Applications. Each applicant for a permit to use or operate a sound device or apparatus in, on, near or adjacent to any public street, park or place shall file a written application with the police commissioner, at the police precinct covering the area in which such sound device or apparatus is to be used or operated, at least five days prior to the date upon which such sound device or apparatus is to be used or operated. Such application shall describe the specific location in which such sound device or apparatus is proposed to be used or operated, the day and the hour or hours during which it is proposed to be used or operated, the volume of sound which is proposed to be used measured by decibels or by any other efficient method of measuring sound, and such other pertinent information as the police commissioner may deem necessary to enable the police commissioner to carry out the provisions of this section. f. Issuance of permit; terms. The police commissioner shall not deny a permit for any specific time, location or use, to any applicant who complies with the provisions of this section, except for one or more of the reasons specified in subdivision g hereof or for non-payment of the fee prescribed in subdivision h hereof, or to prevent overlapping in the granting of permits, provided, however, that a permit issued for multiple days shall be issued only for multiple days within a period of five consecutive calendar days and only at the same location. Each permit issued

2 pursuant to this section shall describe the specific location in which such sound device or apparatus may be used or operated thereunder, the exact period of time for which such apparatus or device may be operated in such location, the maximum volume of sound which may be employed in such use or operation and such other terms and conditions as may be necessary, for the purpose of securing the health, safety, comfort, convenience and peaceful enjoyment by the people of their right to use the public streets, parks or places for street, park or other public purposes, protecting the health, welfare and safety of the inhabitants of the city, and securing the peace, quiet and comfort of the neighboring inhabitants. g. Special restrictions. The police commissioner shall not issue any permit for the use of a sound device or apparatus:

2. In any location where the commissioner, upon investigation, shall determine that the conditions of vehicular or pedestrian traffic or both are such that the use of such a device or apparatus will constitute a threat to the safety of pedestrians or vehicular operators;

3. In any location where the commissioner, upon investigation, shall determine that conditions of overcrowding or of street repair or other physical conditions are such that the use of a sound device or apparatus will deprive the public of the right to the safe, comfortable, convenient and peaceful enjoyment of any public street, park or place for street, park or other public purposes, or will constitute a threat to the safety of pedestrians or vehicle operators; 4. In or on any vehicle or other device while it is in transit;

5. Between the hours of ten p.m. and nine a.m.; or

This subd. g expires Oct. 10, 2010.

1. In any location within five hundred feet of a school, courthouse or church, during the hours of school, court or worship, respectively, or within five hundred feet of any hospital or similar institution, provided, however, that applicants seeking permits in relation to a sound device or apparatus located in a fixed open air structure such as a band shell, amphitheater, stadium or similar permanent structure used for performances or events, shall not be subject to the special restrictions of this subparagraph 1 when such applicant certifies that the sound attributable to such sound device or apparatus shall not exceed a level of 10 dB(A) or more above the ambient sound level as measured at a distance of 15 feet from the point on the perimeter of the property upon which the structure is located that is closest to the sound device or apparatus;\ 2. In any location where the commissioner, upon investigation, shall determine that the conditions of vehicular or pedestrian traffic or both are such that the use of such a device or apparatus will constitute a threat to the safety of

3 pedestrians or vehicular operators; 3. In any location where the commissioner, upon investigation, shall determine that conditions of overcrowding or of street repair or other physical conditions are such that the use of a sound device or apparatus will deprive the public of the right to the safe, comfortable, convenient and peaceful enjoyment of any public street, park or place for street, park or other public purposes, or will constitute a threat to the safety of pedestrians or vehicle operators; 4. In or on any vehicle or other device while it is in transit; 5. Between the hours of ten p.m. and nine a.m.; or

6. Between the hours of eight p.m. or sunset, whichever is later, and nine a.m. on weekdays and between the hours of eight p.m. or sunset, whichever is later, and ten a.m. on weekends and public holidays, in any location within fifty feet of any building that is lawfully occupied for residential use. The distance of fifty feet shall be measured in a straight line from the point on the exterior wall of such building nearest to any point in the location for which the permit is sought. h. Fees. Each applicant for a single-day permit issued under the provisions of this section shall pay a fee of forty-five dollars for the use of each such sound device or apparatus and each applicant for a multiple-day permit issued under the provisions of this section shall pay a fee of forty-five dollars for the use of each such sound device or apparatus for the first day and a fee of five dollars for the use of each such sound device or apparatus for each additional day up to a maximum of four additional days, provided, however, that permits for the use of such sound devices or apparatus shall be issued to any bureau, commission, board or department of the United States government, the state of New York, and the city of New York, without fee. i. Exceptions. The provisions of this section shall not apply to the use or operation of any sound device or apparatus by any church or synagogue on or within its own premises, in connection with the religious rites or ceremonies of such church or synagogue. j. Violations. 1. Any person who shall violate any provision of this section, upon conviction thereof, shall be punished by a fine of not more than one hundred dollars or imprisonment for thirty days, or both.

2. Any person who shall violate any provision of this section, any rule promulgated pursuant thereto or the terms of a permit issued pursuant to subdivision f of this section, shall be liable for a civil penalty recoverable in a civil action brought in the name of the police commissioner or the commissioner of environmental protection or in a proceeding before the environmental control board in an amount of two hundred fifty dollars for the first violation, five hundred dollars for the second violation and seven hundred fifty dollars for the third and each subsequent violation. However, any person who commits a fourth and any subsequent violation within a period of six months shall be classified as a persistent violator and shall be liable for a civil penalty of one thousand dollars for each such violation. k. Rules. The police commissioner shall have the power to make such rules as may be necessary to carry out the provisions of this section. l. The police department and the department of environmental protection shall have the authority to enforce the provisions of this section.

Section 1. Declaration of legislative findings and intent. It is hereby declared that the use and operation of sound amplification devices and apparatus in proximity to residential buildings disturb the peace, quiet and comfort of the inhabitants of those buildings. Further regulation of sound amplification devices and apparatus used and

4 operated in proximity to residential buildings is necessary to ensure that residents may enjoy the normal activities associated with the morning and evening hours affected by this legislation, such as the quiet enjoyment of one's home. It is the intention of the Council to protect the health, well-being, privacy and comfort of the inhabitants of residential buildings by limiting the unwelcome noise caused by the use and operation of sound amplification devices and apparatus when their use and operation occurs within fifty feet of such buildings. Nevertheless, the police commissioner would be authorized to issue permits for the use and operation of sound amplification devices and apparatus within fifty feet of residential buildings for at least eleven hours per day on weekdays and at least ten hours per day on weekends and public holidays.

CASE NOTES FROM FORMER SECTION

¶ 1. Complaint, in action for declaratory judgment of unconstitutionality of Admin. Code § 435-6.0, which proposes to regulate the use of mechanically amplified sound upon and adjacent to public streets, parks and places, held insufficient with respect to plaintiffs who were merely alleged to manufacture and sell sound equipment, as the law did not restrict the manufacture and sale of such equipment but merely the use and operation thereof. Such plaintiffs failed to allege facts indicating that their rights were curtailed or directly affected by the statute, even though they did allege that the market for their equipment had been drastically curtailed. However, as to plaintiffs who actually operated devices and apparatus apparently interdicted by the statute, the complaint was sufficient as a matter of pleading.--Gold Sound, Inc. v. City of N.Y., 195 Misc. 291, 89 N.Y.S. 2d 860 [1949].

¶ 2. On motion to dismiss complaint in action for a declaratory judgment as to unconstitutionality of Admin. Code § 435-6.0, regulating use of mechanically amplified sound upon and adjacent to public streets, parks and places, Court would not be justified in taking judicial notice of concrete situations likely to arise under the statute. A pronouncement of the merits of the legislation would have to await the joinder of issue.--Id.

¶ 3. Motion of defendant to dismiss complaint for violation of this section in that he was operating a sound amplification device without a permit on the ground that this section constitutes an illegal infringement of the right to free speech because it requires that an application for a permit be made five days prior to its use was denied when police department rules and procedures provide for waiver of the five day provision under certain circumstances and hence the question of constitutionality requires a trial as to factual matters.--People v. Hinman, 86 Misc. 2d 685 [1976].

CASE NOTES

¶ 1. Plaintiff, a street musician, played a musical instrument that required a sound amplification device. He challenged the permit fees on constitutional grounds, complaining, among other things, of the fact that musicians performing under certain City-sponsored programs were exempted from paying the fee. The court held that the exemption of City-sponsored musicians from paying the fee did not constitute a violation of the First Amendment, so long as the City did not choose the sponsored musicians on the basis of their speech. Turley v. City of New York, 167 F.3d 757 (2d Cir. 1999). Turley subsequently brought a suit relating to the city's restrictions on the decibel level of street musicians' music. The court held that under the City's sound regulations, the City could lawfully impose an 85 decibel level at 10 feet, and was not required to increase the decibel level to 95 decibels, which had been the amount sought by Turley. The court held that it was lawful for the City to regulate amplified music to prevent excessive noise, limit congestion and insure public safety. However, the court said, the regulations had to be justified without reference to the content of speech, had to be narrowly tailored to achieve a legitimate

5 governmental interest and had to leave open some adequate alternative channels for communication of information. Turley complained that corporate sponsored events were being allowed higher decibel levels than were permitted during his performances. The court held that this was not unlawful--there was a rational basis for the distinction, in that corporate events involved more players and larger audiences and frequently involved the closing off of streets. However, the court did uphold one aspect of Turley's challenge. It agreed that in measuring the decibel level of his performances, the city improperly excluded extraneous noises which were not caused by him (in other words, the City should have been measuring only how much noise was added by his performance). The court agreed that this practice gave City officials unfettered discretion, and potentially could lead to content-based discrimination. Thus, the court issued an injunction against the city's practice. Turley v. Giuliani, 86 F.Supp.2d 291 (S.D.N.Y. 2000).

6 248 N.Y. 182, 161 N.E. 463

View New York Official Reports version Court of Appeals of New York. PEOPLE v. NIXSON et al. FN* State Report Title: People v. Nixon

May 1, 1928.

Mary Nixson and others were convicted by a city magistrate of acting and using language with intent to provoke a breach of the peace. From a judgment of the Court of Special Sessions, Appellate Part, confirming such conviction by the city magistrate, defendants appeal.

Judgments reversed, and defendants discharged.

Breach of the peace, for which a definition has been essayed in Penal Law (Consol.Laws, c. 40) § 722, was punishable at common law.

An act complained of must be at least one that tends to provoke breach of the peace within Penal Law (Consol.Laws, c. 40) § 722, before a magistrate can, within his discretion under Consolidation Act (Laws 1882, c. 410) §§ 1458, 1459, find that the act was disorderly conduct which tended to breach of the peace.

Police officers are guardians of the public order and as it is their duty not merely to arrest offenders but to protect persons from threatened wrong and to prevent disorder, they may give reasonable directions; and evidence that before certain defendants accused of disorderly conduct with intent to provoke a breach of the peace were arrested they were warned by police officers that they must not persist in marching up and down the street in large groups, and that they refused to heed the warning so given, requires the affirmance of their conviction.

In prosecution for commission of acts tending toward breach of the peace, defined in Penal Law (Consol.Laws, c. 40) § 722, by defendants' picketing an employer's place of business, although the magistrate may draw a distinction between innocent and wrongful conduct, yet a finding of guilt must, under Consolidation Act (Laws 1882, c. 410) §§ 1458, 1459, be based upon logical inference from the circumstances of the case.

Evidence held insufficient to sustain conviction of threatening behavior with intent to provoke breach of peace, defined by Penal Law (Consol.Laws, c. 40) § 722, in picketing place of business, where the defendants walked four abreast on the sidewalk, creating no special excitement or disturbance, and were not warned by the police before they were arrested for disorderly conduct. When the Court of Appeals is convinced that an artificial rule of practice created by it by prior decision is erroneous and hampers the administration of justice, it is court's duty to refuse to perpetuate the previous error.

The rule that ordinarily a question of law is raised only by exception is not entirely without its limitations, but it must be interpreted in the light of reason.

On appeal from conviction of disorderly conduct tending toward breach of peace, the jurisdiction of the Court of Appeals was limited to a review of questions of law, and such jurisdiction could not be extended by consent.

Where trial is before court and jury, even in inferior court, failure to move for dismissal of complaint or charge and acquiescence in submission of questions of fact to jury is tantamount to a concession that issues of fact to be determined by the jury were created by the evidence, and in such case the submission of issues of fact to the jury is itself a ruling made in course of trial that such issues exist, and objection in appropriate form should be offered, and an exception should be taken at time ruling is made if a party is dissatisfied therewith.

Even if there is no motion to dismiss, the Court of Appeals may review the sufficiency of the evidence to sustain a judgment of a court of inferior jurisdiction where the case was submitted to the judge to pass upon all questions both of law and fact.

The rule that ordinarily a question of law is raised only by exception applies in criminal as well as in civil cases and in inferior courts as well as in courts of general jurisdiction, but rule is not entirely without limitations.

Where a formal decision must be made by a court, Civil Practice Act, § 445, provides for the taking of an exception to the ruling upon a question of law, and, in the absence of such an exception, there can be no review by the Court of Appeals.

Dissatisfaction with the conduct of the trial must be shown by timely exception, and without such exception the Court of Appeals may ordinarily not review conduct of a trial.

The exception to the denial of a motion for a dismissal of the charge of disorderly conduct tending to a breach of the peace permits the court of appeals to review the question of law.

On appeal from conviction of defendants for using threatening, abusive, and insulting behavior with intent to provoke a breach of the peace, defined by Penal Law (Consol.Laws, c. 40) § 722, it being alleged that defendants were picketing a place of employment and marching up and down the sidewalk obstructing the way, reviewing court could not, in the absence of evidence, infer that defendants' conduct was intended as a threat or could be so construed or was an incentive to violence by others. Whether the evidence sustains a decision or judgment is a question of law, and may be reviewed by the Court of Appeals, unless an appellant, by failure to make appropriate motions or to take appropriate exception, has waived his right to urge it.

**464 *182 Appeal from Court of Special Sessions. *183 Aiken A. Pope and Jacob M. Mandelbaum, both of New York City, for appellants.

Joab H. Banton, Dist. Atty., of New York City (Felix C. Benvenga and John C. McDermott, both of New York City, of counsel), for respondent.

LEHMAN, J.

Twenty persons, named as defendants in this case, were arrested in the early morning of May 27, 1927, while walking on the sidewalk on *184 the southerly side of West Twenty-Ninth street. The police officer, who arrested them, charged in the sworn complaint that they were in ‘West Twenty-Ninth street using threatening, abusive, and insulting behavior, with intent to provoke a breach of the peace, and whereby a breach of the peace might be occasioned, that said defendants at the hour of 7:30 a. m. did then and there, while picketing with a number of others, parade up and down in mass formation, thereby obstructing the sidewalk and causing pedestrians to use the roadway.’ Nineteen of the defendants have been convicted upon this charge, after a trial before a magistrate, and have been sentenced to terms of imprisonment in the workhouse.

This appeal is one of six appeals from judgments of conviction of about one hundred and twenty people, of whom about fifty are women. All the appeals were argued together. The complaints in all the cases are similar. The alleged offenses all occurred at the same place and within the space of a few days. They were all tried before the same magistrate, and it is evident that the magistrate assumed that the defendants, found guilty in all these cases, were walking on this street as part of some tactics adopted to further the interests of a party to a strike or labor dispute in the fur industry. In some cases there is vague evidence which perhaps supports this assumption.

Though the evidence in the six cases is not identical, and the differences may produce varying consequences, yet the determination of the questions involved in the instant case, which the parties chose as the basis of the oral argument in this court, will dictate the answer to most of the questions presented in the remaining cases on appeal. In this case the police officer who made the arrest testified**465 that he had the defendants under observation for ten minutes. They were walking on the south side of Twenty-Ninth street between Sixth and Seventh avenues. They were ‘parading’ four abreast. The *185 sidewalk was about twelve feet wide. The defendants in walking four abreast occupied about six feet of the sidewalk. ‘The regular amount of traffic was just barely getting through,’ Some persons were ‘caused’ to enter the roadway. The officer stated:

‘I fell in line with them and walked up to the southwest corner of Twenty-Ninth street and Sixth avenue. When they got to the corner, they turned around, and they marched back again on the same side, and a few persons were caused to enter the roadway again. I then placed them under arrest.’

Another officer assisted in the arrest. Neither officer warned the defendants before the arrest. The defendants apparently submitted to arrest without protest.

We have set forth the entire testimony almost verbatim. There is no suggestion in the record that the defendants' march up and down the street was not quiet and orderly. There is no suggestion that the defendants' demeanor was threatening, abusive, or insulting, or that any person on the street or elsewhere believed that he was being threatened, insulted, or abused. Nineteen or twenty persons walked up and down a busy street four abreast. They were guilty, we may well concede, of atrociously bad manners, and they discommoded some other persons lawfully using the street, to the extent that a few pedestrians were caused to enter the roadway. There is no evidence that the persons discommoded showed any particular annoyance. Perhaps bad manners are too usual to evoke unusual irritation or annoyance. As yet bad manners have not been made punishable by imprisonment. The question presented here is whether the defendants' conduct went beyond mere bad manners and tended towards a breach of the peace.

[1] It is difficult to define exactly and comprehensively the kind of conduct which ‘tends to a breach of the peace,’ though a ‘breach of the peace’ was punishable at common law. A definition has been essayed by the Legislature in section 722 of the Penal Law (Consol. Laws, c. 40):

‘In cities of *186 five hundred thousand inhabitants or over any person who with intent to provoke a breach of the peace, or whereby a breach of the peace may be occasioned, * * * (2) acts in such a manner as to annoy, disturb, interfere with, obstruct, or be offensive to others; (3) congregates with others on a public street and refuses to move on when ordered by the police.’

[2] We do not now decide whether under sections 1458 and 1459 of the Consolidation Act (Laws 1882, c. 410) a magistrate has discretion to find that conduct which does not fall strictly within the offense defined by the Legislature may nevertheless constitute disorderly conduct which tends to a breach of the peace. At least the discretion confided to a magistrate cannot be without limits. The act complained of must at least be one which reasonably does tend to a breach of the peace, and it is not without significance that the Legislature has made ‘congregating on the street’ a criminal offense only when the offender refuses to move on when ordered by the police.

[3] Though the charge recites that the offense charged was committed while the defendants were picketing, no evidence was produced to sustain this allegation. Doubtless both the magistrate and the defendants assumed, even without proof, that a labor dispute existed in the fur trade at that time, and that the defendants were walking in the street in pursuance of some tactics intended to advance the interest of a party or parties to that dispute. Even if we also should assume the existence of such facts without proof, the question before us would remain unaffected by such facts. It has been said at times that picketing in large numbers near a place of business where a strike is in progress is in itself a threat of violence, and invites counter violence. Circumstances may in particular cases justify a finding to that effect. Here we are not informed of the nature or extent of the labor dispute, if such there was. If there was a strike on the block where the defendants were walking, it may, for aught that appears, have *187 been in connection with a business conducted on the top floor of one of the loft buildings along the street. There is nothing to show that any other person could have regarded the defendants' conduct as a threat or as calculated to coerce or impede any one. In the absence of evidence, we may not infer that the conduct of the defendants was intended as a threat, or could be so construed, or was an incentive to violence by others. Even if the defendants were parties to a labor dispute, no circumstances are shown which, it is even claimed, might possibly be considered as an excuse for or palliation of conduct constituting an invasion of the rights of the public. On the other hand, no circumstances have been shown which would give the color of disorder and violence to conduct which is otherwise colorless. Upon this record no question is presented of the rights of parties to a labor dispute to the use of the streets for their own purposes—or of any abuse by them of such **466 rights. The sole question is whether a number of pedestrians walking, quietly, four abreast, on the sidewalk, creating no excitement, or disturbance, may without warning by the police be arrested for disorderly conduct and sentenced to a term of imprisonment.

[4][5] To us it seems that there should be no doubt of the answer to that question. Men and women constantly congregate or walk upon the streets in groups, quite oblivious of the fact that in some degree they are thereby causing inconvenience to others using the street. A public meeting may have aroused such interest that groups of men and women continue the discussion while walking up and down the street. Groups linger in quiet social converse after the religious edifice where services have been held is emptied. School children and college youths, laborers, athletic ‘fans,’ and church members, perhaps even judges, do at times congregate or walk upon the streets in numbers sufficient to cause other pedestrians to stand aside or step into the roadway. Surely *188 such conduct is not always ‘disorderly,’ and does not always tend to a breach of the peace. The magistrate may draw distinction between innocent and wrongful conduct, but finding of guilt must be based upon logical inference from the circumstances of the case. Of course, no one urges that distinction may be based merely upon difference of social or economic position. Here the fact, if it be a fact, that the defendants are participants or sympathizers in a labor dispute, is immaterial, since there is no evidence from which any inference may be drawn that their quiet presence in numbers at this particular place was in some way calculated to make the labor dispute disorderly. In the absence of evidence that the defendants caused substantial annoyance to others, or persisted in their conduct after protest from others or warning from a police officer, we find the evidence insufficient to sustain the conviction of the defendants in this case.

In the case of People v. Friedman, 248 N. Y. ——, 162 N. E. ——, the evidence produced to sustain the charge is in all material respects similar to the evidence produced in the instant cases. We find that it does not sustain the judgment of conviction. In the other four cases the circumstances are different. There the evidence, though meager and unsatisfactory, yet seems to us sufficient to support a finding that the defendants acted recklessly of the rights and convenience of others, and that their conduct tended to a breach of the peace.

In all these four cases there is evidence that before the defendants were arrested they were warned by police officers that they must not persist in marching up and down the street in large groups. Police officers are guardians of the public order. Their duty is not merely to arrest offenders, but to protect persons from threatened wrong and to prevent disorder. In the performance of their duties they may give reasonable directions. Present at the point where the defendants were congregating *189 they might early sense the possibility of disorder. Even a protest from pedestrians who were annoyed by the defendants' conduct might be a significant element in determining whether persistence in such conduct was wrongful. Enough has been shown in these cases to justify the officers in warning the defendants. Refusal to heed the warning so given, persistence in parading the street in groups thereafter, is, perhaps, so significant of a contumacious disregard of the rights of others that it supports the finding of guilt of the defendants. In these cases the judgments must be affirmed.

[6] We have considered the question of whether there is any evidence to sustain the finding of guilt in the instant case. The district attorney has not urged that upon this record we have no jurisdiction to review that question. Our jurisdiction is, of course, limited in these cases to a review of questions of law, and that jurisdiction may not be extended by consent. We are therefore compelled to determine whether we may review the questions argued, though no objection to such review has been interposed by the people.

[7] Ordinarily a question of law is raised only by exception. That rule applies in criminal as well as civil cases, and in inferior courts as well as in courts of general jurisdiction. City of Buffalo v. New York, L. E. & W. R. Co., 152 N. Y. 276, 46 N. E. 496. The rule is not entirely without its limitations. It ‘must be interpreted in the light of reason and subject to certain inherent limitations. Ordinarily the question which is presented arises on the trial where full opportunity is presented to take an exception and where, generally, justice and fairness require that one should be taken at the time if the party is dissatisfied with the conduct of the trial, and it is concerning such a situation as this that the rule is constantly reiterated and enforced that an exception must be taken for the purposes of appeal to this court. * * * But a case may arise where there is no opportunity to take an exception, and such is the *190 present one.’ Pangburn v. Buick Motor Co., 211 N. Y. 228, at page 235, 105 N. E. 423, 425.

[8][9][10] Here the defendants pleaded not guilty. After hearing the evidence adduced against them, the magistrate decided that the charge against them was sustained. Dissatisfaction**467 with the conduct of the trial must be shown by timely exception. Without such exception we may ordinarily not review the conduct of a trial. Magistrates and other judges of inferior courts pass upon questions of fact and of law. Whether the evidence sustains a decision or judgment is a question of law, and may be reviewed by this court unless an appellant by failure to make appropriate motions or to take appropriate exception has waived his right to urge it. Where a formal decision must be made by a court, the Civil Practice Act, § 445, provides for the taking of an exception to a ruling upon a question of law. In the absence of such an exception, there can be no review by this court. No provision is made by statute or customary practice for an exception to the decision or judgment of a magistrate or other judge of an inferior court who passes upon questions of fact and of law, without the entry of a formal decision. In the case of People v. Friedman, 248 N. Y. ——, 162 N. E. ——, decided herewith, the defendants moved for a dismissal of the charge, and the exception to the denial of the motion unquestionably permits us to review the question of law. In the instant case of People v. Nixson, no such motion was made, and the question arises whether by failure to make such motion the defendants conceded ‘that issues of fact, to be determined by the trial court, were created by the evidence and precluded themselves from asserting and asking the appellate courts to determine that the judgment of the trial court was wholly without support in the evidence.’ Seeman v. Levine, 205 N. Y. 514, 99 N. E. 158.

[11] Doubtless where the trial is before a court and jury, even in an inferior court, failure to move for the dismissal *191 of the complaint or charge and acquiescence in the submission of questions of fact to the jury is tantamount to a concession that issues of fact to be determined by the jury were created by the evidence. In such case the submission of issues of fact to the jury is itself a ruling made in the course of the trial that such issues exist, and objection in appropriate form should be offered and an exception may and should be taken at the time the ruling is made, if a party is dissatisfied with the ruling. In the case of Seeman v. Levine, supra, this court held that, even where there is no jury, the failure to move to dismiss before decision by the judge has the same effect. That case was a civil case, but it has been followed by this court in criminal cases. People v. Bresler, 218 N. Y. 567, 113 N. E. 536; People v. Robinson, 237 N. Y. 567, 143 N. E. 745.

These cases cannot be distinguished from the case at bar. We must refuse to review the question of whether there is evidence to sustain the judgment, or overrule the earlier decisions of this court. Further consideration, with the advantage of new experience, has convinced us that our earlier decisions were wrong. Where questions of fact and law are both decided by the judge, a submission to him of all questions after the evidence is taken is not, in truth, a concession that issues of fact are raised by the evidence. Litigants present to the judge the evidence to sustain their respective contentions. He must decide the effect of the evidence. We know now that, especially in courts where judicial proceedings are often informal, a requirement that a party must at his peril separate questions of law from questions of fact and move for a decision on questions of law before final submission of the case, does not facilitate the administration of the courts and does at times result in injustice.

[12][13] The instant case shows the artificiality of the rule which we have heretofore followed, and that it is out of harmony with the actual proceedings in the courts. The *192 defendants have pleaded not guilty. They have not controverted the evidence produced against them. Their attitude has consistently been that the evidence did not justify conviction. In order to avail themselves of the protection of the law which they invoke, they should not be compelled to go through the form of a motion to dismiss. Even the people do not contend that the defendants conceded the sufficiency of the evidence against them or that the judge was not required to pass upon that question when he rendered judgment. It is right that this court should hesitate to overrule a previous decision, but, when convinced that an artificial rule of practice, created by it, is erroneous and hampers the administration of justice, it is its duty to refuse to perpetuate previous error. We therefore hold that, even where there is no motion to dismiss, this court may review the sufficiency of the evidence to sustain a judgment of a court of inferior jurisdiction where the case has been submitted to the judge to pass upon all questions, both of law and fact.

The judgment of the Court of Special Sessions and that of the City Magistrate's Court should be reversed and defendants discharged.

CARDOZO, C. J., and POUND, CRANE, ANDREWS, KELLOGG, and O'BRIEN, JJ., concur.

Judgments reversed, etc.

N.Y. 1928 PEOPLE v. NIXSON 248 N.Y. 182, 161 N.E. 463 Wtodif hefevreno kthnece eu C nooufu ssrtuoa oclfia iArril potapr etieacolson nis oo crm oanicnvn inpooycs2aeitn4dioc8 the Nn.a ..YtA Hasn.e 1 yare8rte 2tifth ,bic 1ea6 iadf1 alm cN rut,a.Ele nifn. o 4eitf6rs pb3 raeh acavti feca ecn t,oc rett hbaaetete dnthe bmy defea itd eb pyndants upnriisohra darebelec ispbioayrt nimic isippriasnotsn morent. motion unquestionably permits us to review the question of law. In the instant case of People v. Nixson, no such United States District Court, S.D. New York. Hacer DINLER, et al., Plaintiffs, v. The CITY OF NEW YORK, et al., Defendants.

No. 04 Civ. 7921(RJS)(JCF). Sept. 30, 2012.

Opinion and Order

RICHARD J. SULLIVAN, District Judge.

*1 Beginning in 2004, Plaintiffs filed these actions against the City of New York (the “City”) and several individuals pursuant to 42 U.S.C. § 1983 and various provisions of state law, alleging violations of their state and federal constitutional rights in connection with mass arrests at demonstrations relating to the 2004 Republican National Convention (the “RNC” or “Convention”). Before the Court are the parties' cross-motions for summary judgment on Plaintiffs' false arrest claims relating to their arrests at Fulton Street and East 16th Street, and on Defendants' policies with respect to fingerprinting and arrests on minor violations during the RNC. Additionally, Plaintiffs have moved to strike testimony by New York Police Department (“NYPD”) Deputy Commissioner David Cohen, which they allege is improper expert evidence. For the reasons set forth below: (1) Plaintiffs' motion for summary judgment with respect to the Fulton Street arrests is granted, and Defendants' motion is denied; (2) the parties' cross-motions for summary judgment with respect to the East 16th Street arrests are denied; (3) Plaintiffs' motion for summary judgment with respect to their state law fingerprinting claims is granted, and Defendants' motion is denied; (4) Defendants' motion for summary judgment regarding the constitutionality of the City's policies concerning fingerprinting and arrests during the RNC is granted; and (5) Plaintiffs' motion to strike certain testimony of Deputy Commissioner Cohen is denied.

I. BackgroundFN1

FN1. The following facts are drawn from the parties' Rule 56.1 Statements, and the exhibits and declarations attached thereto. The facts are undisputed unless otherwise noted. Where one party's 56.1 Statement is cited, the other party does not dispute the fact asserted, has offered no admissible evidence to refute that fact, or merely objects to inferences drawn from that fact. The Court has also considered the parties' briefs in connection with their motions. The various submissions and briefs will be referred to as follows: [party name] [subject of motion] [type of document]. For example, the Rule 56.1 Statement submitted by Defendants in connection with their motion for summary judgment on Plaintiffs' false arrest claims arising out of the August 31, 2004 arrests at Fulton Street is called “Defs.' Fulton 56.1”; the Schiller Plaintiffs' brief opposing Defendants' motion for summary judgment dismissing Plaintiffs' claims relating to the No–Summons and Fingerprinting Policies is called “Schiller Policies Opp'n Br.”

During the 2004 Republican National Convention, which was held at Madison Square Garden in Manhattan, thousands of individuals representing a wide range of political and social views came to New York City to participate in demonstrations relating to the RNC. Those demonstrations led to mass arrests and detention of protestors. Following those mass arrests, hundreds of plaintiffs filed the instant lawsuits against the City and various individual NYPD officers and other individuals associated with the City (collectively, “Defendants”).FN2 Plaintiffs in the various cases include protesters, journalists, and bystanders.FN3

FN2. Although the Plaintiffs in the various cases did not sue identical groups of Defendants-indeed, not all Plaintiffs

1 even named the City as a Defendant-the Court nevertheless refers to the City and various individual Defendants collectively as “Defendants” unless otherwise noted.

FN3. This Opinion and Order refers to several sets of Plaintiffs. The Dinler and Adams Plaintiffs were arrested in connection with the East 16th Street demonstration. The Schiller and Abdell Plaintiffs were arrested in connection with the Fulton Street march. The MacNamara Plaintiffs were arrested at various sites throughout the City and, for purposes of this Opinion and Order, join the other Plaintiffs in challenging the arrests at the Fulton and East 16th Street demonstrations and the constitutionality of several law enforcement policies adopted by the City to address security concerns during the RNC.

The first Plaintiffs filed these actions in late 2004, shortly after the arrests in question, followed by hundreds more Plaintiffs filing individually, jointly, and, in some cases, seeking to certify a class. The complaints in these actions raise claims of, inter alia, false arrest, unreasonable and unhealthy terms of confinement, and unlawful fingerprinting and detention policies. The cases were referred to Judge Francis for discovery and assigned to my docket on October 2, 2007. By Opinion and Order dated May 19, 2011, the Court granted in part and denied in part Plaintiffs' motion for class certification in MacNamara v. City of New York, 275 F.R.D. 125 (S.D.N.Y.2011). Discovery concluded on September 16, 2011.

The parties filed cross-motions for summary judgment on October 3, 2011; the motions were fully submitted as of November 23, 2011. On December 1, 2011, Plaintiffs in Schiller and Dinler submitted a letter seeking leave to file a motion to strike Cohen's testimony.FN4 Defendants submitted a letter opposing this request on December 6, 2011. By Order dated December 14, 2011, the Court deemed Plaintiffs' motion to strike made and determined that it would address the motion when it ruled on the parties' cross-motions for summary judgment, based on the parties' letters and arguments already contained in the summary judgment briefing. On May 31, 2012, the Court heard oral argument regarding the parties' motions.

FN4. Several Plaintiffs submitted letters to the Court joining in the Schiller and Dinler Plaintiffs' motion to strike.

*2 Although these cases cover a wide range of complaints about conduct by the City, and particularly the NYPD, the parties agreed to limit their motions at this time to four issues: (1) whether the police had probable cause to arrest protesters and bystanders at a demonstration on Fulton Street on August 31, 2004; (2) whether the police had probable cause to arrest protesters and bystanders at a demonstration on East 16th Street on August 31, 2004; (3) whether the City's suspension of its summons policy for minor offenses, when those offenses related to the RNC, was constitutionally permissible; and (4) whether the City's blanket fingerprinting policy with respect to RNC-related arrests was lawful and constitutionally permissible.

In all, the parties have filed more than fifty motions, together with hundreds of pages of briefing and thousands more pages of declarations, exhibits, and Local Rule 56.1 statements, as well as several hours of video of the events surrounding the Fulton Street and East 16th Street arrests.

II. Legal Standard Pursuant to Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment should be rendered “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). The moving party bears the burden of proving that there is no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Once

2 the moving party has met its burden, the nonmoving party “must come forward with specific facts showing that there is a genuine issue for trial.” Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir.2002) (citations and internal quotation marks omitted).

In ruling on a motion for summary judgment, the court must resolve any ambiguity in favor of the nonmoving party. Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 122 (2d Cir.2004). The court “is not to weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments.” Weyant v. Okst, 101 F.3d 845, 852 (2d Cir.1996). However, “[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007). Specifically, where, as here, the events in question are captured on videos that are not alleged to have been doctored or altered, the court should “view[ ] the facts in the light depicted by the videotape.” Id. at 381.

As a result, summary judgment will not issue where “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. “Inferences and burdens of proof on cross-motions for summary judgment are the same as those for a unilateral summary judgment motion.” Ferrigno v. U.S. Dep't of Homeland Sec., No. 09 Civ. 5878(RJS), 2011 WL 1345168, at *3 (S.D.N.Y. Mar. 29, 2011).

III. False Arrest Claims *3 Plaintiffs' false arrest claims arise from mass arrests at two sites made without any warrants. Although the parties do not dispute that warrantless arrests must be supported by probable cause in order to satisfy the Fourth Amendment's requirement that seizures be reasonable, U.S. Const. amend. IV, they disagree over how probable cause determinations must be made when the police suspect large groups of people of unlawful activity. It is to that threshold question that the Court first turns.

A. Probable Cause Where an arrest is made without a warrant, “the defendant [in a false arrest case] ... bears the burden of proving probable cause as an affirmative defense.” Dickerson v. Napolitano, 604 F.3d 732, 751 (2d Cir.2010) (citing Broughton v. State, 37 N.Y.2d 451, 458 (1975)). Probable cause is a complete defense to a claim of false arrest. Id. (citing Jaegly v. Couch, 439 F.3d 149, 152 (2d Cir.2006)). Probable cause with respect to any charge is sufficient; the police need not have had probable cause with respect to each individual charge. Marcavage v. City of New York, 689 F.3d 98, 109–10 (2d Cir.2012).

“ ‘An officer has probable cause to arrest when he or she has knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime.’ “ Dickerson, 604 F.3d at 751 (quoting Jaegly, 439 F.3d at 152). Importantly, probable cause must be particular to the individual being arrested. The Supreme Court has held that “a person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person” because “a search or seizure of a person must be supported by probable cause particularized with respect to that person.” Ybarra v. Illinois, 444 U.S. 85, 91 (1979). In Ybarra, the police had a warrant to search a tavern based on information that a bartender possessed drugs, but searched everyone present, including the petitioner. Id. at 88. The Court concluded that the authorities lacked probable cause to believe that anyone other than the bartender was violating the law, and that such probable cause remained absent with respect to the petitioner when the police executed the warrant. Id. at 90–91. The requirement of individualized probable cause, the Court ruled, “cannot be undercut or avoided by simply pointing to the fact that coincidentally there exists probable cause to search or seize another or to search the premises where the person may happen to be.” Id. at 91. The Supreme Court recently reaffirmed that, notwithstanding the difficulty of defining probable cause precisely, “[t]he substance of all the definitions of probable cause is a reasonable

3 ground for belief of guilt, and that belief of guilt must be particularized with respect to the person to be searched or seized.” Maryland v. Pringle, 540 U.S. 366, 371 (2003) (citing Ybarra, 444 U.S. at 91) (internal quotation marks and further citations omitted).

*4 Defendants, at least for purposes of these motions, do not contend that the arresting officers had individualized knowledge of the actions of any of the Plaintiffs.FN5 Instead, Defendants rest entirely on a concept that the Court will refer to as “group probable cause,” which they assert permits the police to arrest an entire group of individuals “where it reasonably appears to the police that a large group is engaging in unlawful conduct.” (Defs.' Fulton Mem. 9.)

FN5. On June 20, 2006, Judge Francis issued an order deeming Defendants to have conceded that they “have no personal knowledge of [the Schiller and Dirtier ] plaintiffs' actions.” (No. 04 Civ. 7922(RJS)(JCF), Doc. No. 67, at 3.) Similarly, by Order dated November 28, 2006, Judge Francis ruled that “the defendants are deemed to have admitted that, with respect to each plaintiff in the MacNamara, Abdell, and Adams case[s] (with the exception of plaintiff Chris Thomas [who was observed by an NYPD officer at the New York Public Library] ), they cannot identify any member of the NYPD who has personal knowledge of individual conduct of that plaintiff which served as the basis for that plaintiff's arrest. This does not preclude the defendants from presenting evidence that a plaintiff was within a group of individuals allegedly engaged in unlawful activity or from arguing that such evidence is sufficient to demonstrate probable cause.” (No. 04 Civ. 7922(PJS)(JCF), Doc. No. 112.)

The concept of group probable cause, however, is by no means as firmly established as Defendants suggest. The Second Circuit, in fact, rejected a comparable argument in Jones v. Parmley, 465 F.3d 46 (2d Cir.2006). In that case, brought by protestors arrested on private property, the Second Circuit affirmed the district court's finding that the police were not entitled to qualified immunity because their conduct was unreasonable insofar as it was not based on individualized probable cause. Parmley, 465 F.3d at 60. The arrests were predicated on the conduct of a subset of protestors who, allegedly in violation of a state statute prohibiting obstruction of traffic, stepped into the nearby interstate to distribute literature about their cause before rejoining the larger group. Id. at 52–53. Although the Second Circuit assumed arguendo that some protestors had indeed violated the state statute, it found the police officers' conduct to be unreasonable because, at the time of the arrests, none of the officers could identify the specific protestors responsible for the violations. The court stated that, “[w]ithout the ability to identify those individuals who had entered the ... roadway, defendants cannot rely on [the state statute prohibiting obstruction of traffic] to justify their actions.” Id. at 60. Thus, even though some arrestees may indeed have violated the law, the court found that the “indiscriminate mass arrests” were “without probable cause.” Id.

In arguing for the group probable cause theory, Defendants rely primarily on two cases from outside the Second Circuit: Carr v. District of Columbia, 587 F.3d 401 (D.C.Cir.2009) and Bernini v. City of St. Paul, 665 F.3d 997 (8th Cir.2012). In Carr, the Court of Appeals for the District of Columbia reversed the district court's grant of summary judgment in favor of protesters who were arrested on charges of rioting. 587 F.3d at 402. In light of evidence that the group moving through the city seemed to be collectively carrying torches and celebrating destruction of property by protesters, the court ruled that there were disputed issues of fact as to whether the police had probable cause to arrest the roughly sixty-five to seventy-five protesters who either voluntarily entered or were “herded” by police into an alley. Id. at 404–06. Specifically, the court concluded that “[a] requirement that the officers verify that each and every member of a crowd engaged in a specific riotous act would be practically impossible in any situation involving a large riot, particularly when it is on the move-at night.” Id. at 408. Instead, the court held that, in the context of rioting, the police “must only be able to form a reasonable belief that the entire crowd is acting as a unit and therefore all members of the crowd violated the law.” Id. (emphasis added). The court conceded the possibility that an innocent person could be mistaken for a rioter and arrested, but it noted that “[p]robable cause only requires a reasonable belief of guilt, not a certitude.” Id. Importantly, the court distinguished a prior case, Barham v. Ramsey, in which the D.C. Circuit ruled that the police lacked probable cause to arrest hundreds of people in a park merely because a subset of those present were protesters who had been participating

4 in traffic offenses and vandalism. 587 F.3d 401 (D.C.Cir.2006). The Carr court noted that “in Barham the record showed that many people who could not be tied to illegal activity streamed in and out of the park before the mass arrest,” whereas in Carr, there was “no affirmative evidence ... of individuals not associated with the protest being present in the alley.” Carr, 587 F.3d at 408.

*5 Defendants also rely on Bernini v. City of St. Paul, which arose out of the 2008 RNC, where safety concerns relating to protests prompted the police to close access to the downtown area of St. Paul, Minnesota. See 665 F.3d at 1001. Despite the closures, a group of protesters nonetheless proceeded toward the restricted area, down the very road that was intended to be the route for the First Lady's motorcade. Id. The police formed a barricade at an intersection and told the protesters (who started on the street and moved to the sidewalk) to retreat, before using rubber pellets to compel their dispersal. Id. The police reported that protesters threw rocks and bags containing feces, though the plaintiffs disputed this assertion. Id. Finally, the police funneled the protesters into a nearby park, instructed the group to sit, and “sort[ed]” people, ultimately letting about 200 go and arresting another 160. Id. at 1002. The police contended that those involved appeared to be sitting together. Id . Citing the D.C. Circuit's rulings in Carr and Barham, the Eighth Circuit noted that “[w]hat is reasonable in the context of a potential large-scale urban riot may be different from what is reasonable in the relative calm of a tavern with a dozen patrons.” Id. at 1003. The court thus concluded that the officers could have determined that the group that appeared ready to clash with the police “had committed a crime and that the group was acting as a unit.” Id. at 1003–04. As a result, the court ruled that the police were entitled to qualified immunity with respect to those individuals who were arrested at the park, even though the decision by the police to funnel protesters to the park may have “caused the group to expand and enveloped people who were not present at the intersection.” Id. at 1004–05. Nevertheless, key to the court's ruling was the fact that the arrests were not indiscriminate; rather, the police “attempted to discern who had been part of the unit at the intersection and released approximately 200 people, including seven of the plaintiffs, at the park.” Id. at 1005. Although the plaintiffs contended that the group at the intersection was at most thirty to forty people, the court noted that the video showed at least fifty people clustered together, and another fifty nearby. Thus, the Court reasoned that arresting 160 at the park “was within the range of objectively reasonable police conduct” given the difficulty from the officers' vantage point of determining exactly how many people were present. Id.

Carr and Bernini provide insight into how the state can preserve public order and enforce the law in mass protest or riot situations, but they do not, and could not, alter the constitutional requirement of individualized probable cause as a prerequisite for lawful arrest. Rather, they stand for the unremarkable proposition that, where a group of individuals is acting in concert such that a reasonable police officer could conclude that every member of the group violated the law, that officer would be justified in arresting every member of the group.

*6 As such, Carr and Bernini do not endorse a theory of collective or group liability, nor do they reflect a departure from the rule of individualized probable cause. They merely offer a method of reaching individualized probable cause in a large, and potentially chaotic, group setting. Individualized probable cause remains the lodestar in these cases. An individual's participation in a lawbreaking group may, in appropriate circumstances, be strong circumstantial evidence of that individual's own illegal conduct, but, no matter the circumstances, an arresting officer must believe that every individual arrested personally violated the law. Nothing short of such a finding can justify arrest. The Fourth Amendment does not recognize guilt by association. See Ybarra, 444 U.S. at 91 (“[A] person's mere propinquity to others independently suspected of criminal activity does not ... give rise to probable cause....”); United States v. Coreas, 419 F.3d 151, 157 (2d Cir.2005) (“Where an organization is not so ‘wholly illegitimate’ that membership itself necessarily implies criminal conduct, membership alone cannot provide probable cause.”).

Dispersal orders play an important, though not essential, role in making such individualized determinations of probable cause. Although the Court declines to find that a dispersal order is an absolute prerequisite under the Fourth Amendment to finding that all arrestees in a mass arrest were violating the law,FN6 it nevertheless recognizes that police efforts to sort lawbreakers from bystanders, and to advise the latter that they should leave, are highly probative of whether it would be

5 reasonable to conclude that every person arrested violated the law. Carr and Bernini are consistent with this conclusion; in both cases, police officers moved protestors off of the main street before making arrests. See Bernini, 665 F.3d at 1001–02; Carr, 587 F.3d at 404. Of course, efforts to disperse or sort the crowd both tend to ensure that innocent bystanders will not be included in the arrest and run the risk that some offenders will elude arrest. Nonetheless, that cost of the rule of individualized probable cause is clearly contemplated by the Fourth Amendment, as exemplified in cases like Ybarra.

FN6. The Court notes, without deciding, that a dispersal order may be required by the First Amendment in certain circumstances. Because of the limited nature of the motions and issues before the Court, such an issue has not been squarely presented at this time.

With that clarification of the legal requirements, the Court now turns to the two arrest locations that are the subjects of the instant motions.

B. Fulton Street Arrests 1. Facts On August 31, 2004, members of the War Resisters League planned a march at the World Trade Center to protest the wars in Iraq and Afghanistan. (Defs.' Fulton 56.1 ¶ 9.) The march was to proceed uptown, ending in a “die-in” either at Madison Square Garden, where the main RNC events were taking place, or wherever the march was stopped. ( Id. ¶¶ 9–14.) Many, though not all, of the protesters intended to participate in the die-in. (Schiller Opp'n 56 .1 ¶ 16.) The protesters did not obtain a permit for any portion of their planned demonstration. ( Id. ¶ 17.) There is no allegation that there were particular threats of violence during this march, although the City was concerned about the possibility of violence and disorder during RNC demonstrations. (Defs.' Fulton 56.1 ¶¶ 6–8.)

*7 At the outset of the march, while protesters were waiting on Church Street, NYPD Inspector Thomas Galati spoke with Ed Hedemann, one of the organizers of the planned demonstration. ( Id. ¶¶ 31–32.) Galati asked Hedemann to change the route of the march, and Hedemann declined. ( Id. ¶¶ 35–38.) Galati then advised Hedemann that protesters could walk only one or two abreast so as to not block the sidewalk; if they blocked the sidewalk or violated traffic laws, they would be subject to arrest. (Decl. of Fred M. Weiler, dated Oct. 3, 2011, No. 04 Civ. 7922(RJS)(JCF), Doc. No. 567 (“Weiler Deck”), Ex. A (“Defs.' Fulton Video”), ch. 1 at 0:30.) Galati appeared to be particularly concerned about a banner that the protesters wanted to carry and concluded that it should be carried sideways, parallel to the sidewalk facing Fulton Street, rather than facing forward, so that those carrying it would not be walking several abreast and blocking the sidewalk. ( Id. at 0:25–0:35.) Galati announced that instruction via bullhorn and concluded by telling the protesters to have a “safe march.” ( Id . at 2:23–3:00.) The video does not show exactly how large the crowd was, so it is difficult to tell whether all marchers could have been expected to hear the announcement. ( Id.) However, during Galati's announcement, protesters can be heard saying, “We can't hear you!” ( Id. at 2:58; see Deck of Michael L. Spiegel, dated Oct. 3, 2011, No. 05 Civ. 8453(RJS)(JCF), Doc. No. 260 (“Spiegel Deck”), Ex. B (“Abdell Video”), Cook at 12:25–12:40.FN7) Police also walked through the crowd making similar announcements. (Defs.' Fulton 56.1 ¶¶ 77–78.) Although it is undisputed that Galati believed that everyone congregated at the World Trade Center could hear the police warnings before the march, several individual Plaintiffs contend that they did not hear all of the warnings. ( E.g., Schiller Fulton Opp'n 56.1 ¶ 81; Schiller Fulton Add'l Facts in Opp'n to Defs.' 56.1 ¶ 5.)

FN7. This exhibit-Exhibit B of Michael L. Spiegel's declaration dated October 3, 2011 in Case No. 05 Civ. 8453(RJS)(JCF)-consists of a DVD compiling various individual and organizations' videos of the events at issue. The exhibit will hereinafter be cited as “Abdell Video.” The pincites will follow the format: “(Abdell Video, [chapter name] at [time] ).” For example, the fifteen-second period between minutes 12:30 and 12:45 of the chapter labeled “Cook” will be cited as “(Abdell Video, Cook at 12:30–12:45).”

6 The march began several moments after Galati's announcement, with marchers crossing Church Street onto the north side of Fulton Street and walking toward Broadway. (Defs.' Fulton 56.1 ¶ 94.) Police stood in the intersection of Church and Fulton, seemingly guiding the protesters and making announcements via bullhorn that there was no permit for the march and that marchers must comply with city and state laws or be subject to arrest. (Abdell Video, Cook at 13:00.) When some protesters appeared to cross against the light, voices seemingly belonging to protestors can be heard on the video advising marchers to get out of the street. ( Id. at 13:40; id., Hernandez at 27:30–27:40, 36:06–35:16.) Shortly thereafter, traffic can be seen moving freely up Church Street, as the first set of marchers continued east on Fulton, and the remainder paused at the intersection waiting for the light to change. ( Id., Cook at 13:57.)

The video indicates that the marchers, particularly those toward the front of the group, attempted to comply with Galati's instructions by walking two by two, although the columns were not perfectly aligned. ( E.g., id. at 13:10; id., Hernandez at 23:20–23:30.) Individuals not participating in the march moved freely around the sidewalk, including journalists with cameras-indeed, the journalists and their equipment appear to be taking up more space than the marchers themselves. ( Id., Hernandez at 23:30, 36:25; Defs.' Fulton Video, ch. 2, at 1:30–1:40.) In any event, it does not appear that particular individuals who crossed Church Street against the light or who were walking more than two abreast were warned or arrested individually. ( See, e.g., Defs.' Fulton Video, ch. 5.)

*8 Shortly after the march began, Deputy Chief Terrence Monahan appeared to conclude that the protesters who were carrying a banner were blocking the sidewalk. He stopped the front of the march and, unaided by a bullhorn, announced that if the protestors continued to block the street, they would be placed under arrest. (Defs.' Fulton Video, ch. 7 at 0:05–0:30.) Monahan's announcement is framed as a warning, telling protesters to comply or be subject to arrest. ( Id. at 0:24–0:36.) Defendants contend that marchers were given an opportunity to disperse. (Defs.' Fulton 56.1 ¶ 128.) However, the video shows that the protesters were not given any additional opportunity to comply and continue the march, were blocked by a line of officers on bicycles, and were ultimately arrested. (Defs.' Fulton Video, ch. 7 at 0:25–0:45; id, ch. 2 at 1:40–2:40.) For example, shortly after Monahan's announcement, a woman approached the line and told them that she wanted to leave; however, the video shows that she was given no response and was not allowed to leave the group, which was pinned against the wall of St. Paul's Cemetery on the north side of Fulton Street. ( Id., ch. 2 at 2:25.) Some individuals, who appear to be wearing press credentials, were permitted to leave ( id. at 4:28), but seconds later an officer, possibly Monahan, can be heard saying that “everyone here will be placed under arrest right now.” ( Id. at 4:33).

The video shows that there was little communication among the officers on Fulton Street, and it is not clear when the decision to make arrests was made. Monahan, who instructed the police to form a line, appears to have concluded that urgent action was necessary and that the marchers should be placed under arrest ( see Schiller Fulton 56.1 ¶ 129). At the same time, Galati directed passersby on Fulton Street to get back into the march formation or be subject to arrest, apparently thinking that the march would be permitted to continue once the marchers made a narrower formation. (Abdell Video, Hernandez at 24:33). Consistent with this confusion, after Monahan's announcement, most of the marchers waited against the fence on Fulton Street in a manner that suggests that they believed they would resume marching. (Defs.' Fulton Video, ch. 2 at 3:30–4:30.) Meanwhile, officers at the back of the march closer to Church Street appeared not to be giving marchers any instructions at all. (Abdell Video, Hernandez at 32:05). As a large number of police flowed onto Fulton Street and toward Church Street, many stopped, apparently attempting to find out what was happening. ( Id. at 37:00.)

Within minutes of Galati's initial announcement and the commencement of the march, protesters on the north side of Fulton Street were arrested, and were subsequently charged with (1) obstructing the sidewalk, in violation of N.Y. Penal Law § 240.20(5); (2) parading without a permit, in violation of N.Y.C. Admin. Code § 10–110; and (3) disobeying a lawful police order, in violation of N.Y. Penal Law § 240.20(6). Additionally, Defendants now argue that there was probable cause to arrest the marchers on Fulton Street for obstruction of governmental administration, in violation of Penal Law § 195.05. Defendants further contend that they released credentialed journalists (Defs.' Fulton 56.1 ¶ 151); however,

7 it appears that not all individuals present for journalistic purposes were released. For example, Plaintiff Michael Schiller, who was present to film a documentary about the RNC protests, was among those arrested. (Schiller Fulton 56.1 ¶¶ 12,14.)

*9 The Court now turns to determining whether the NYPD had probable cause to arrest the protestors with respect to each charge.

2. Discussion a. Obstructing Traffic Pursuant to § 240.20(5) of the New York Penal Law, a person is guilty of disorderly conduct when “[h]e obstructs vehicular or pedestrian traffic.” As the Second Circuit has noted, “New York courts have interpreted this statute to permit punishment only where the conduct at issue does more than merely inconvenience pedestrian or vehicular traffic.” Parmley, 465 F.3d at 59.

In the first place, it is questionable whether any of the Fulton Street protesters actually obstructed traffic within the meaning of § 240.20(5), as any blocking was temporary and pedestrians and cars were able to move with only a minimal amount of difficulty. (Abdell Video, Cook at 13:57.) Furthermore, as noted above, any blocking of the sidewalk that occurred was largely attributable to photographers and journalists covering the march, and not to the marchers themselves.

Even if some number of the marchers did obstruct vehicular or pedestrian traffic, it cannot be said that they all did so, and certainly not that they acted with a collective intent to violate the law. To the contrary, the video shows marchers making concerted efforts to march two by two so as to leave room for pedestrians, stay out of the street, and comply with policy directions. Thus, even accepting that the police reasonably believed that they arrested only marchers and not innocent bystanders, the police could not have reasonably believed that all of the marchers on Fulton Street were acting as a unit to obstruct traffic. Instead, Defendants' argument seems to be one of group liability: essentially, because the marchers collectively intended to march, their overall efforts to comply with police instructions were rendered irrelevant by the unlawful acts of a few members of the group. Such a conclusion, though, is wholly inconsistent with the rule of individualized probable cause. ( See supra Section III.A .) Put simply, no reasonable factfinder could observe the video and conclude that all of the marchers were blocking traffic. The Court therefore finds that the police lacked probable cause to arrest the Fulton Street protesters for obstructing traffic. b. Parading Without a Permit The New York City Administrative Code provides that a “procession, parade, or race shall be permitted upon any street or in any public place only after a written permit therefor has been obtained from the police commissioner.” N.Y.C. Admin. Code § 10–110(a). Defendants argue that the statute covers sidewalks, or at least that Defendants would be entitled to qualified immunity on this question. (Defs.' Fulton Br. at 23–24.) Their sole case supporting this proposition is Allen v. City of New York, in which Judge Gorenstein declined to rule definitively as to whether the statute covers sidewalks but held that, in light of the ambiguity in the statute, a reasonable officer could conclude that it does. No. 03 Civ. 2829(KMW)(GWG), 2007 WL 24796, at *7 (S.D.N.Y. Jan. 3, 2007).

*10 But even assuming that the statute covers activity on the sidewalks, the undisputed facts here indicate that the police granted permission to the protesters on Fulton Street to conduct their march on the sidewalk, only to have that permission abruptly revoked by Monahan minutes later. ( See Defs.' Fulton Video, ch. 2 at 2:30–2:40; id, ch. 7 at 0:24–0:36.) In this regard, the facts are remarkably similar to those of a recent Seventh Circuit case in which the plaintiffs were arrested en masse for a street protest in Chicago. In that case, the Seventh Circuit ruled that, although a permit would have generally been required for such a demonstration, the police had given verbal permission and thus were required to “give notice of revocation of permission to demonstrate before they can begin arresting demonstrators.” Vodak v. City of Chicago, 639 F.3d 738, 746 (7th Cir.2011). The court affirmed that “the Fourth Amendment does not permit the police to say to a person go ahead and march and then, five minutes later, having revoked the permission for the march without notice to anyone,

8 arrest the person for having marched without police permission.” Id. at 746–47. The Seventh Circuit's logic applies with equal force here. The undisputed facts, particularly the video, confirm that the marchers on Fulton Street were attempting to comply with police instructions and that the revocation of consent for the march came suddenly and without any realistic opportunity to disperse or correct the problems with the march. Accordingly, the Court finds that the police lacked probably cause to arrest all marchers on Fulton Street for parading without a permit. c. Defying a Police Order “A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof[,][h]e 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(6). Thus, whether the police had probable cause to arrest the marchers for defying a police order turns on two factors. The first is whether, and to what extent, the police communicated their orders to the entire crowd. See People v. Carcel, 3 N.Y.2d 327, 333 (1957) (“[T]he gravamen of the offense ... is the refusal to desist from ... conduct after being ordered to by the police.”); see also Vodak, 639 F.3d at 745 (“[B]efore the police could start arresting peaceable demonstrators for defying their orders they had to communicate the orders to the demonstrators.”). The second is whether the demonstrators were given an opportunity to comply with those orders-that is, whether they indeed refused to do so.

Based on the video and other evidence of record, Monahan's single dispersal order was not amplified and could not have been reasonably expected to be heard by all of the marchers. ( See, e.g., Defs.' Fulton video, ch. 7 at 0:05–0:36.) The marchers at the back of the line were clearly oblivious to what was going on ahead of them and continued to cross Church Street, swelling the ranks of marchers on the sidewalk. There is simply no evidence that the marchers who were more than a few feet from Monahan defied his order.

*11 Moreover, even if Monahan's dispersal order had been sufficiently loud to be heard by all, the marchers had no opportunity to comply with it. Monahan abruptly stopped the march within minutes of its beginning and ordered the marchers to move to the north side of Fulton Street against the St. Paul Cemetery fence. At that point, the police began to form a line that effectively corralled the marchers on the sidewalk, leaving them nowhere to go even if they wanted to leave. Indeed, several marchers (and perhaps bystanders) who attempted to leave were ordered back to the sidewalk, making it clear that they were not free to leave and were effectively arrested. ( Id., ch. 2 at 2:20–2:32.) Because the marchers had no opportunity to comply with Monahan's so-called dispersal order, the Court finds that there was no probable cause to arrest even protesters at the front of the march who might have been able to hear the order. d. Obstruction of Governmental Administration The Penal Law provides that “[a] person is guilty of obstructing governmental administration when he intentionally obstructs, impairs or perverts the administration of law or 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. Defendants argue that Plaintiffs violated the statute by refusing to comply with police orders to walk two abreast, obey traffic lights, not block pedestrian traffic, and disperse. (Defs.' Fulton Br. 26.) For the reasons stated above, the police could not have reasonably concluded that all of the marchers on Fulton Street were acting as a unit to commit any such violations. Thus, there was no probable cause to arrest protestors for violating this statute.

3. Qualified Immunity Defendants alternatively contend that the individual Defendants are entitled to qualified immunity. A police officer is entitled to qualified immunity for a false arrest claim if there was “arguable probable cause” for the arrest. Goldberg v. Town of Glastonbury, 453 F. App'x 40, 42 (2d Cir.2011) (quoting Amore v. Novarro, 624 F.3d 522, 536 (2d Cir.2010)). Arguable probable cause exists if ‘ “(a) it was objectively reasonable for the officer to believe that probable cause existed, or (b) officers of reasonable competence could disagree on whether the probable cause test was met .’ “ Id. (quoting

9 Amore, 624 F.3d at 536).

Based on the undisputed facts, and particularly the video of the Fulton Street march and arrests, the Court finds that there was not even arguable probable cause to make those arrests. At most, reasonable officers could disagree as to whether some of the marchers were obstructing traffic; however, no reasonably competent officer could have believed that all of the marchers on Fulton Street had violated the law and were properly subject to arrest. As noted above, it was clearly established by 2004 that an officer must have individualized probable cause to arrest an individual and that mere proximity to illegal conduct does not establish probable cause with respect to an individual. See, e.g., Ybarra, 444 U.S. at 91; Rogers v. City of Amsterdam, 303 F.3d 155, 160 (2d Cir.2002) (reversing district court's grant of qualified immunity on false arrest claim where “[t]he information available to [the officer] indicated that [the plaintiff] was nothing more than an interested bystander,” even though the officer arguably had probable cause to arrest others).

* * * *12 For the foregoing reasons, the Court grants Plaintiffs' motions for summary judgment with respect to their false arrest claims at Fulton Street on August 31, 2004, and denies Defendants' motion.

C. East 16th Street Arrests 1. Facts On August 31, 2004, shortly before 7:00 p.m., a large number of individuals, including two marching bands, gathered in Union Square Park in Manhattan to protest the RNC. (Defs.' East 16 56.1 ¶¶ 16–17.) Shortly thereafter, a group, including one of the marching bands, left the park and began marching north up Union Square East on both the street and the sidewalk, blocking traffic and chanting “our street.” (Decl. of Gerald S. Smith, dated Oct. 3, 2011, No. 04 Civ. 7921, Doc. No. 266 (“Smith Decl.”), Ex. D (“Defs.' East 16 Video”), ch. 2 at 3:15–3:45.FN8) The marchers did not have a permit to parade (Defs.' East 16 56.1 ¶ 19), nor is there any suggestion that the police expressly consented at any time to the protesters marching either on the street or on the sidewalk. As the group proceeded north on Union Square East, the police formed a line to prevent the marchers from proceeding further up the block, prompting the marchers to turn right onto East 16th Street. (Defs.' East 16 56.1 ¶ 32; Defs.' East 16 Video, ch. 2 at 5:50–6:00.)

FN8. Many of these videos do not nave time stamps, and the times provided herein reflect the time in the video compilation as a whole rather than that reflected in a time stamp in the video itself.

As the group, which now numbered in the hundreds, entered East 16th Street, NYPD Deputy Inspector James Essig gave unamplified orders for the marchers to stop but “knew his order was likely inaudible.” (Dinler East 16 Add'l Facts in Opp'n to Defs.' 56.1 (“Dinler Add'l Facts”) ¶ 72.) The police formed lines on both the east and west ends of the stretch of East 16th Street between Union Square East and Irving Place. (Decl. of Jonathan C. Moore, dated Oct. 3, 2011, No. 04 Civ. 9216, Doc. No. 451 (“Moore Decl.”), Ex. A (“MacNamara TARU Video”), ch. 3 at 0:36–0:50; Defs .' East 16 56.1 ¶ 45.) Inspector Gerald Dieckmann gave an unamplified order directing people to return to the park, but did not know whether anyone heard him. (Defs.' East 16 56.1 ¶ 64.)

On East 16th Street, most of the marchers remained in the middle of the street, blocking the roadway entirely, and spilling over into the sidewalk as well. ( E.g., Defs.' East 16 Video, ch. 3 at 2:00, ch. 4 at 0:01–1:20, ch. 5 at 0:01–2:30.) The group was playing music, chanting, and dancing, and some people also sat in the street. ( Id., ch. 5 at 0:01–2:30.) Several people, many of whom are Plaintiffs, were also present on the sidewalk of East 16th Street between Union Square East and Irving Place. Some were part of the protest, but many assert that they were present on the sidewalk for other purposes-as legal observers, as curious bystanders, or for wholly unrelated reasons, such as walking to or from work. ( E.g., Dinler East 16 56.1 ¶¶ 2–5, 37–38; MacNamara East 16 56.1 ¶¶ 2–6.)

10 By the time the crowd reached the eastern end of the block at Irving Place, there was a line of police motorcycles blocking the way. (Defs.' East 16 Video, ch. 4 at 1:30.) For some period of time, the line of police across East 16th Street at Irving Place extended only curb to curb, leaving the sidewalks open for people to leave. ( Id., ch. 5 at 5:50–6:00.) However, the Dinler Plainitffs allege that at some point, as the march proceeded down the street, the line was extended building to building. (Dinler East 16 56.1 ¶ 21; Dinler Opp'n 56.1 ¶ 42)

*13 By about 7:02 p.m., the NYPD also formed a line at the western end of East 16th Street at Union Square East, stretching across the sidewalk and preventing new people from entering the street. Several dozen people, however, appear to have been allowed to leave the street. (Defs.' East 16 56.1 ¶¶ 44–45; Defs.' East 16 Video, ch. 6 at 2:00–5:40.) Essig testified that he saw “less than [forty]” people leave East 16th Street; Dieckmann believed that several people had left but did not observe them leaving, and was only sure that three or four people had left. (Defs.' East 16 56.1 ¶ 48.)

Around 7:05 p.m., some members of the crowd who had been heading east on East 16th Street turned back and began traveling west toward Union Square East. (Defs.' East 16 Video, ch. 5 at 1:10–1:20.) The crowd was met midway down the block by a line of police in the street and was largely moved off of the street and directed onto the sidewalk, though people still remained in the street for several more minutes. ( Id., ch. 5 at 3:00, 12:00–14:00, 15:55; MacNamara TARU Video, ch. 1 at 4:55–5:30.)

Although the video clearly shows that people were permitted to leave for some period of time, Plaintiffs Dinler, Maurer, and Waters allege that they looked for opportunities to leave at both ends of East 16th Street to no avail. (Dinler East 16 56.1 ¶¶ 5–8, 21–23, 39–41.) Dinler further alleges that she expressly asked officers both at Union Square East and Irving Place for permission to leave but was not permitted to do so. ( Id. ¶¶ 6, 8.) Consistent with these allegations, Lieutenant Mark Keegan stated that when the crowd began to turn toward Union Square East, he told his officers not to let anyone leave. (Dinler East 16 Opp'n 56.1 ¶ 46.)

After deciding that the protesters on East 16th Street should be arrested-the parties dispute precisely when this decision was made ( compare Defs.' East 16 56.1 ¶¶ 54–55, with MacNamara East 16 Opp'n 56.1 ¶¶ 54–55)–Essig sent two officers through the crowd to make unamplified announcements advising innocent bystanders to leave the area, but he did not provide the officers with any instructions as to what to say or how to identify individuals who were not part of the protest. (Dinler Add'l Facts ¶¶ 78–81.) For example, one officer can be seen on video telling the cameraman that he would not be stopped if he “break [s] off and go[es] back”; however, the cameraman responds that he had just been pepper-sprayed on the sidewalk. (Defs.' East 16 Video, ch. 6, at 6:00–6:15.) The cameraman ultimately exited at Irving Place several minutes later. ( Id. at 8:15.) The officers spent no more than five minutes giving these instructions, and Essig did not follow up with the officers before ordering that the people between the police lines be arrested. (Dinler Add'l Facts ¶¶ 81–82.)

The police began making arrests of individuals still in the street at about 7:12 p.m. At this point, chanting and musical instruments can be heard on the block, and onlookers remained on the sidewalk. (MacNamara TARU Video, ch. 1 at 5:55–12:00.) By about 7:28 p.m., police began handcuffing people on the sidewalk as well. ( Id. at 17:20.)

*14 Several other Plaintiffs allege that they never heard a dispersal order or instructions regarding how to leave East 16th Street, and it appears to be undisputed that there was no amplified dispersal order, although some officers gave unamplified dispersal orders to the noisy crowd. (Dinler Add'l Facts ¶ 72; MacNamara East 16 Reply 56.1 ¶ 351.) Eventually, the police moved everyone out of the street and onto the north sidewalk of East 16th Street. (Defs.' East 16 56.1 ¶ 52.) Ultimately, Essig and Dieckmann decided to place under arrest everyone remaining on the blocked-off stretch of East 16th Street. ( Id. ¶ 54.) However, it is not clear how the timing of this decision fits in with when police were allowing people to leave. Indeed, the parties dispute the length of time that the police let anyone leave East 16th Street after the march first entered the street: Defendants contend that about ten to fifteen minutes passed, while Plaintiffs argue that by the time they reached the line of officers, the block was already sealed.

11 Defendants now argue that there was probable cause to arrest the Plaintiffs for (1) obstructing the sidewalk, in violation of N.Y. Penal Law § 240.20(5); and (2) parading without a permit, in violation of N.Y.C. Admin. Code § 10–110. The Court now proceeds to address each argument in turn.

2. Discussion In sharp contrast to the Fulton Street march, it is clear that, from the time the marchers left Union Square Park, a large number of individuals were openly and consciously violating the law. Dozens, possibly even hundreds of people were blocking traffic by marching in the middle of Union Square East without a permit. When the group turned onto East 16th Street, it rendered that street entirely impassable.

Some Plaintiffs contend that the NYPD played a part in funneling protestors onto East 16th Street. (Adams East 16 Opp'n 56.1 ¶ 21.) The undisputed facts and video support the inference that the police did intend to divert the crowd onto East 16th Street. ( E.g ., MacNamara TARU Video, ch. 3 at 0:22–0:31.) Still, setting aside for a moment those bystanders who were confused as to the nature of the march, no serious argument can be made that the participants reasonably believed that the march was permitted or consented to merely because the police attempted to divert a large and raucous crowd away from the street that becomes Park Avenue and onto a less heavily trafficked road. Thus, the Court has little trouble concluding that some people-in fact, a large number of people—present on the street at the time of the East 16th Street arrests were actively engaged in obstructing the sidewalk in violation of N.Y. Penal Law § 240.20(5) and in parading without a permit in violation of N.Y.C. Admin. Code § 10–110. At a minimum, the police could reasonably have concluded that this was the case.

However, at the time the protesters were still in the street, it is clear from the undisputed facts-particularly the video—that bystanders were standing on the sidewalk and observing, but not participating in, the unlawful march on the street. ( E.g., Defs .' East 16 Video, ch. 4 at 2:20.) It cannot be seriously contended that merely watching the march or covering the march as a journalist either constitutes blocking traffic within the meaning of § 240.20(5) or makes the observer part of a “unit” that is parading unlawfully. Cf. City of Chicago v. Morales, 527 U.S. 41, 53 (1999) (“[T]he freedom to loiter for innocent purposes is part of the ‘liberty’ protected by the Due Process Clause of the Fourteenth Amendment. We have expressly identified this ‘right to remove from one place to another according to inclination’ as ‘an attribute of personal liberty’ protected by the Constitution.”). And it is clear from the undisputed facts that some individuals ultimately arrested on East 16th Street were not involved in the parade and did not block vehicular traffic.

*15 The essential question for this location, then, is whether, at the time of the arrests, the police reasonably believed that everyone arrested was participating in the unlawful conduct. Put another way, the question is whether, at the time the arrests were made, police reasonably believed that bystanders had had sufficient notice and opportunity to leave the area and that only lawbreakers remained. ( See supra Section III.A (rejecting group probable cause theory in favor of the rule of individualized probable cause).) It is clear that the police allowed some people to exit at both ends of the street, but there remain significant disputes of fact as to the nature of the officers' efforts to cull the lawbreakers from the larger group and as to how much time elapsed before the police prevented people from leaving the street. Of course, the mere fact that Dinler was told that she could not leave does not alone prove that the police lacked probable cause to arrest the people on East 16th Street. However, Dinler's allegations, along with those of other Plaintiffs, raise serious questions regarding whether the officers' efforts to (1) inform people that they must leave and then (2) allow people enough time to comply with the dispersal order were sufficient to make the subsequent arrests reasonable. When a mass arrest occurs in a setting where shortly before there was a clear mix of lawbreakers and bystanders, separating the bystanders requires more than merely allowing people to leave should it occur to them that they might be arrested if they remain. Instead, the reasonableness of the East 16th Street arrests turns on whether the police either sufficiently sorted the arrestees or affirmatively conveyed to all bystanders that they should, and could, leave in order to avoid arrest. Cf. Parmley, 465 F.3d at 60 (holding that police could not arrest protestors for violating a state traffic statute unless they could “identify those individuals who had entered the ... roadway”); Barham, 434 F.3d at 576 (holding that, in confronting a volatile

12 demonstration, the police chief could not “deal with the crowd as a unit unless he first issued an order to disperse and then provided a reasonable period of time to comply with that order” (internal quotation marks omitted)). Neither the statements of undisputed facts submitted by the parties nor the videos provide a sufficient answer to that question.

Accordingly, the Court finds that there remain questions of fact as to whether police made sufficient efforts to clear innocent bystanders from the street before placing those that remained on East 16th Street under arrest. Therefore, the Court cannot conclude whether the police had probable cause to arrest all the Plaintiffs.

3. Qualified Immunity As stated above with respect to the Fulton Street arrests, the law of individualized probable cause was clearly established well before August 31, 2004. Accordingly, the arresting officers would be entitled to qualified immunity only if they reasonably could have believed that each of the individuals arrested on East 16th Street was involved in unlawful conduct. As noted above, this inquiry turns on the officers' efforts to release innocent bystanders and to make sure that they arrested only those who participated in the unlawful march. Because there are questions of fact concerning whether the police made sufficient efforts to clear innocent bystanders from East 16th Street before arresting those who remained, the Court must deny Defendants' motion for summary judgment on the basis of qualified immunity.

* * * *16 For the foregoing reasons, the Court denies the parties' cross-motions for summary judgment on Plaintiffs' false arrests claims for the arrests at East 16th Street on August 31, 2004.

IV. The Fingerprinting and No–Summons Policies A. Facts The City expected up to half-a-million visitors during the RNC and believed that demonstrations might prove “highly charged.” (Defs.' Policies 56.1 ¶ 10.) To prepare for this influx, the NYPD Intelligence Division gathered publicly available information regarding potential threats to the City during the RNC and concluded that the City faced a “tripartite threat” of international terrorism, anarchist violence, and widespread civil disobedience.FN9 ( Id. ¶¶ 46–49.) The City also obtained intelligence through publicly available sources that certain groups and individuals were planning activities to “shut down” the RNC and the City. ( Id. ¶ 98.) According to the NYPD, the intelligence “suggested that many individuals who were intent on committing unlawful conduct at RNC-related events and demonstrations were being directed not to bring any identification or to present false identification to law enforcement.” ( Id. ¶¶ 124–135.) In response to the perceived threats of mass disorder, the City adopted the “No–Summons Policy,” which suspended the City's ordinary policy of issuing summonses for violations,FN10 and the “Fingerprinting Policy,” which required fingerprinting of all persons arrested for RNC-related criminal activity (collectively, the “Policies”). Both represented a departure from ordinary practices, under which an officer who had probable cause to believe that an individual had committed a violation would merely issue a summons if the individual presented valid identification and had no outstanding warrants. (Schiller Policies Opp'n 56.1 Add'l Facts in Opp'n to Defs.' 56.1 (“Schiller Policies Add'l Facts”) 111.)

FN9. The City also gathered information from confidential sources; however, Defendants do not rely on any confidential information in these cases. (Defs.' Policies 56.1 ¶ 24 & n. 4.)

FN10. The term “violation” is used here to denote a category of offenses distinct from misdemeanors and felonies and for which “a term of imprisonment in excess of fifteen days cannot be imposed.” N.Y. Penal Law § 10.00(3).

The Policies applied to anyone who was “engaged in criminal conduct that was related to the RNC.” ( Id. ¶ 151.) Activity was deemed related to the RNC if it “revolved around the RNC or was connected to the RNC.” ( Id. ¶ 167.) Defendants

13 assert that whether unlawful conduct was deemed “RNC-related” turned on whether it was the type of conduct that the intelligence suggested was a threat to the City or the RNC. ( Id. ¶ 170.) Counsel further clarified at oral argument that the Policies “didn't apply to things that would have been going on anyway, absent the RNC”; for example, participants in an unauthorized road race that blocked traffic would not be subject to the policies. (Transcript of May 31, 2012 Oral Argument, No. 04 Civ. 7921, Doc. No. 310 (“Tr.”), at 79:7–21.) Additionally, it is undisputed that the Policies were not aimed solely at large groups, as at least two individuals who were protesting alone were arrested subject to the Policies: (1) Georgianna Page was arrested in front of a Hummer dealership at 55th Street and 11th Avenue, where she was protesting the vehicles and their connection with the war in Iraq (Dinler Policies Opp'n 56.1 at 5); and (2) Nikolas Sikelianos was arrested while riding his bicycle on 27th Street between Madison and Park Avenues dressed as Uncle Sam (Decl. of Jeffrey Rothman, dated Nov. 3, 2011, No. 05 Civ. 767, Doc. No. 196 (“Rothman Decl.”), Ex. 15 at 435:23–441:23). The same officer arrested both individuals and stated that he believed that they were “present at the RNC in order to make some sort of statement.” (Rothman Decl., Ex. 15 at 435:23–441:23.)

*17 The City asserts that it concluded that fingerprinting would allow law enforcement to ascertain whether a detained individual posed a particular threat. (Defs.' Policies 56.1 ¶¶ 201–209.) Moreover, in light of intelligence suggesting widespread protests aimed at interfering with RNC activities as well as City traffic, the City concluded that custodial arrest was necessary to prevent “escalating disorder.” ( Id. ¶ 187.) More generally, Deputy Commissioner Cohen, after analyzing other large-scale political protests, such as the 1999 World Trade Organization (“WTO”) protests in Seattle, concluded that “it only takes a small number of extremist elements to trigger spiraling disorder, massive property damage, and violence at large-scale demonstrations.” ( Id. ¶ 38.) At the same time, it is undisputed that the City granted permits for several large demonstrations, allowed other unpermitted marches, and established a demonstration area near Madison Square Garden. (Defs.' Policies 56.1 ¶¶ 251, et seq.)

The Parties offer sharply differing accounts of the decisionmaking process that resulted in the adoption of the No–Summons and Fingerprinting Policies. Plaintiffs allege that the decision to implement the policy was made in April 2004 and was unrelated to any research into particular RNC-related threats. (Schiller Policies Add'l Facts ¶ 23.) Specifically, based on the timeline provided by Defendants, Plaintiffs note that Cohen was not even involved in the decision. ( Id. ¶ 25.) Plaintiffs further note that they were not allowed to depose Commissioner Raymond Kelly, see Schiller v. City of New York, No. 04 Civ. 7922(KMK)(JCF), 2006 WL 2708464 (S.D.N.Y. Sept. 20, 2006), and that the person whom they did depose, Department Chief Joseph Esposito, had little memory of the meeting in which the decision was made to adopt the Policies. (Schiller Policies Opp'n 56.1 ¶¶ 30–41.) By contrast, Defendants argue that the process was “evolving” based on intelligence but that the final decision was not made until August 2004, and that in any event there was “ample support for the Policies” as of April 2004. (Defs.' Policies 56.1 ¶¶ 155–160.)

B. Discussion 1. Motion to Strike Defendants' motion for summary judgment on the No–Summons and Fingerprinting Policies relies heavily on Cohen's testimony regarding the reasons underlying those policies. Cohen discussed both his personal knowledge of possible terrorist threats to the City during the RNC and his research into similar incidents elsewhere, such as the 1999 WTO protest in Seattle. Cohen asserts that both informed his conclusions about how seemingly peaceful protests can explode into chaos and violence. ( id. ¶¶ 32–38 .) Seeking to prevent consideration of Cohen's testimony, Plaintiffs argue that Cohen was improperly used as an expert witness even though Defendants disclosed Cohen only as a lay witness.

The line between expert and lay testimony is sometimes subtle. In Bank of China v. NBM LLC, the Second Circuit ruled that the district court properly admitted testimony by a bank employee about his investigation of the defendant's activities “so long as the testimony was based on the investigation and reflected his investigatory findings and conclusions, and was not rooted exclusively in his expertise in international banking.” 359 F.3d 171, 181 (2d Cir.2004); see also United States v. Rigas, 490 F.3d 208, 224 (2d Cir.2007) (“A witness's specialized knowledge ... does not render his testimony ‘expert’

14 as long as it was based on his investigation and reflected his investigatory findings and conclusions, and was not rooted exclusively in his expertise.” (internal quotation marks omitted)). However, the court ruled that his explanations of typical international banking transactions and definitions of banking terms were expert testimony and thus the proponent of this testimony was obligated to satisfy the requirements of Rule 702 of the Federal Rules of Evidence. Id. at 182.

*18 Having carefully considered the record and case law, the Court finds that Cohen's testimony about his investigation into particular threats against the City during the RNC is properly considered as lay testimony, as it covers only his findings and conclusions relating to his own investigation. Although Cohen's general conclusions and assertions about the risks of chaos and disorder resulting from widespread civil disobedience look somewhat more like expert testimony, it is undisputed that he researched, analyzed, and considered these events in connection with his particular task-namely, determining potential terrorist and other threats to the City during the RNC. In contrast to the testimony in Bank of China, Cohen's testimony is not based only on general experience in the area. See id. at 181. Moreover, even Plaintiffs do not contend that they were unaware of Cohen's role in analyzing a variety of sources of information to determine potential threats to the City during the RNC.

Accordingly, the Court finds that Cohen was properly disclosed as a fact witness, and his testimony can be considered as such. The Court therefore denies Plaintiffs' motion to strike.

2. State Law Relating to the Fingerprinting Policy a. Authority to Fingerprint Under N.Y. Criminal Procedure Law § 160.10(1) Plaintiffs' motion for summary judgment on the Fingerprinting Policy focuses on the state-law aspect of the claim. New York criminal procedure law provides that arrestees for felonies or misdemeanors must be fingerprinted. See N.Y.Crim. Proc. Law § 160.10(1). The statute further provides in relevant part that a police officer may take fingerprints in other cases if the officer “(a) [i]s unable to ascertain such person's identity; or (b) [r]easonably suspects that the identification given by such person is not accurate.” Id. § 160.10(2). Plaintiffs argue that their fingerprinting was unlawful because they were arrested on violations, not misdemeanors or felonies, and had valid identification that the police had no reason to believe was inaccurate. (Schiller Policies Br. at 20–21.)

Defendants appear to concede that the statute does not permit fingerprinting for violations as a general matter. ( See Defs.' Policies Br. at 53.) See People v. White, 56 N.Y.2d 110, 112 n. 1 (1982) (explaining that downgrading a charge to a violation means that “one charged under this section is not to be fingerprinted”). Moreover, it is undisputed that the majority of Plaintiffs in fact possessed valid identification. ( See, e.g., Dinler Policies Response 56.1 ¶¶ 16, 37, 39, 57.) Thus, the only question is whether Defendants had reasonable grounds to suspect that Plaintiffs' means of identification were inaccurate. The record reflects that they did not.

Although Defendants maintain that the intelligence they gathered justified suspicion of the authenticity of protestors' means of identification (Defs.' Policies 56.1 ¶¶ 124–135), the intelligence actually indicates only that certain groups of extremists or anarchists were instructed to carry no identification (Schiller Policies Opp'n 56.1 ¶ 134; Defs.' Policies Reply 56.1 ¶ 124). Contrary to Defendants' assertions that protestors were directed to bring false identification, there does not seem to be any suggestion in the intelligence provided by Defendants that RNC protesters were particularly likely, or were instructed, to carry false identification. Rather, the intelligence cited by Defendants in their original Rule 56.1 statement merely establishes that individuals may have been creating false credentials to gain access to RNC-related events. (Defs.' Policies Reply 56.1 ¶ 124; Schiller Policies Opp'n 56.1 ¶ 134.)

*19 Defendants also cite to additional materials that appear to support only the conclusion that some protestors planned to bring no identification and to supply false names to hospitals if they needed medical care. (Defs.' Policies Reply 56.1 ¶ 134; Affidavit of Daniel Mullkoff, dated Dec. 21, 2011, No. 04 Civ. 7922, Doc. No. 622–5, Ex. X at 6.) And while there was a question as to the validity of one Plaintiffs identification, there is no assertion that any Plaintiff carried false

15 identification as a tactic to confuse the police or evade responsibility. Finally, as for Defendants' argument that counterfeit identifications can be easily obtained (Defs.' Policies 56.1 ¶¶ 136–145), that proposition logically would apply to any lawbreaker. Taken to its logical conclusion, such an argument would render the statutory requirement of reasonable suspicion a nullity, with the result that any arrestee could be fingerprinted for any reason, or no reason, notwithstanding the clear language of the statute.

Because Defendants have not presented any grounds for reasonable suspicion that the protestors' identification documents were or would be inaccurate, the Court has little difficulty concluding that the Fingerprinting Policy violated Section 160.10(1). That provision's plain language does not permit the state to suspend ordinary enforcement of fingerprinting laws at whatever time, or with regard to whatever group, the state sees fit. To the contrary, Section 160.10(1), on its face, provides for an individualized determination as to the likelihood that the identification given was inaccurate. Defendants concede that they did not engage in such an individualized process. Accordingly, the Court finds that the Fingerprinting Policy adopted during the RNC violated Section 160.10. b. Private Right of Action Defendants argue that, even if the police were not authorized to fingerprint the RNC arrestees, there is no private right of action for wrongful fingerprinting.FN11 Under New York law, where the statute neither expressly creates nor forbids a private right of action, one may be implied based on the following factors: “(1) whether the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) whether recognition of a private right of action would promote the legislative purpose; and (3) whether creation of such a right would be consistent with the legislative scheme.” Uhr v. E. Greenbush Cent. Sch. Dist., 94 N.Y.2d 32, 38 (1999) (internal quotation marks omitted).

FN11. To the extent that Plaintiffs raise a claim pursuant to 42 U.S .C. § 1983 based on violation of Section 160.10, that claim should fail, as § 1983 does not provide any remedy for violations of state law. Young v. Cnty. of Fulton, 160 F.3d 899, 902 (2d Cir.1998).

Whether there is a private right of action for wrongful fingerprinting under Section 160.10 appears to be a matter of first impression. The only New York case involving wrongful fingerprinting arose under an older, since-repealed statute, NY.Crim. Proc. L. § 940. That statute gave police discretion to fingerprint persons arrested for certain, specified crimes. In Fidler v. Murphy, a New York Supreme Court affirmed a jury verdict and award of damages for wrongful fingerprinting where the plaintiffs had been arrested for a crime that was not among those the statute enumerated. See 203 Misc. 51, 52–53 (N.Y.Sup.Ct.1952). Fidler's holding gives some support to the proposition that the general public, including people like Plaintiffs, is the intended beneficiary of fingerprinting statutes.

*20 A comparison of Section 160.10 with prior fingerprinting statutes, such as N.Y.Crim. Proc. L. § 940, reinforces that view. Section 160.10 reduced police discretion over fingerprinting by making the procedure mandatory in all misdemeanor and felony arrests; police retained discretion only over violations, and even then, the statute provided criteria to guide officers' choices. A private right of action would promote the Legislature's apparent purpose in revising the statute by incentivizing police to fingerprint only where expressly authorized to do so.

A private right of action also is consistent with the apparent legislative scheme governing when fingerprinting is permitted for violations. In permitting fingerprinting only when there are reasonable grounds to doubt the accuracy of an arrestee's identification, Section 160.10(2) appears designed both to verify that those arrested for violations are not wanted for more serious crimes and to ensure that those arrested for violations receive greater consideration for their privacy than those arrested for more serious crimes. A private right of action promotes Section 160.10's balance between safety and privacy. Furthermore, a private right of action does not interfere with any existing alternative civil remedy for wrongful fingerprinting. See Sheehy v. Big Flats Cmty. Day, Inc., 73 N.Y.2d 629, 636 (1979).

16 Accordingly, the Court finds that there is a private right of action for wrongful fingerprinting under N.Y.Crim. Proc. L. § 160.10(1), and thus grants Plaintiffs' motions, and denies Defendants' motions, for summary judgment on the state law fingerprinting claims.

3. Fourth Amendment Defendants move for summary judgment on Plaintiffs' Fourth Amendment claims relating to the Policies on the grounds that there is no constitutional right to a summons and that it is not unconstitutional to fingerprint individuals incident to arrest. (Defs.' Policies Br. 5–9.) By contrast, the MacNamara Plaintiffs contend that the Policies were objectively unreasonable under the Fourth Amendment because, inter alia, they were not necessary to address the City's goals relating to maintaining order. (MacNamara Policies Opp'n 9–10.) FN12

FN12. Plaintiffs also argue that the Policies were unreasonable because they targeted expressive conduct. ( Id. at 11.) This argument coalesces with their First Amendment claims, which are addressed infra Section IV.B.4.

The Supreme Court has made clear that an individual may be placed under custodial arrest for “even a very minor criminal offense.” Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001); see also Bryant v. City of New York, 404 F.3d 128, 138–39 (2d Cir.2005) (holding that the City's decision to keep arrested protestors in custody until they could be arraigned, rather than issue them desk appearance tickets, was not objectively unreasonable). Plaintiffs' attempt to distinguish these cases on the grounds that they addressed discretionary decisions by officers, whereas here there was a citywide policy, is thoroughly unconvincing. Indeed, the Supreme Court in Atwater specifically rejected the petitioner's invitation to examine her arrest in light of its specific circumstances, observing that “a responsible Fourth Amendment balance is not well served by standards requiring sensitive, case-by-case determinations of government need, lest every discretionary judgment in the field be converted into an occasion for constitutional review.” Atwater, 532 U.S. at 347. Thus, in upholding the constitutionality of the arrest in Atwater, the Supreme Court did not narrowly approve an officer's discretionary actions in response to specific circumstances. Rather, it upheld the general principle that arrests even for minor criminal offenses are constitutional. The implications of Atwater are fatal to Plaintiffs' Fourth Amendment arguments, for if the arrests are constitutionally valid, it follows that fingerprinting the arrestees is too. See United States v. Kelly, 55 F.2d 67, 70 (1932) (holding that fingerprinting incident to arrest for either a felony or a misdemeanor infringes no constitutional right); see also Cnty. of Riverside v. McLaughlin, 500 U.S. 44, 58 (1991) (recognizing fingerprinting as one of the “administrative steps incident to arrest”); Gerstein v. Pugh, 420 U.S. 103, 113–17 (1975) (holding that “a policeman's on-the-scene assessment of probable cause provides legal justification for arresting a person suspected of crime, and for a brief period of detention to take the administrative steps incident to arrest”); United States v. Amerson, 483 F.3d 73, 86 n. 14 (2d Cir.2007) (citing Kelly approvingly and applying its reasoning to DNA identification).

*21 Accordingly, the Court grants Defendants' motion for summary judgment with respect to Plaintiffs' claim that the Policies violated the Fourth Amendment.FN13

FN13. Plaintiffs also contend that both Policies subjected them to unreasonably long detention, particularly because they were detained at a place where no fingerprinting equipment was available. The Court declines to rule on this claim at this time. To the extent that Plaintiffs argue that the Policies were designed or carried out to make Plaintiffs' conditions of confinement lengthier and more onerous, the Court finds that that issue has not been fully presented and briefed and is more properly considered with respect to Plaintiffs' claims relating to the conditions of their confinement, which are not before the Court at this time.

4. First Amendment Defendants also seek summary judgment that the Policies did not violate Plaintiffs' First Amendment rights. Defendants

17 contend that the Policies in no way burdened those rights because they aimed solely at unlawful conduct (Defs.' Policies Br. at 10–11); in the alternative, Defendants argue that even if the Policies burdened First Amendment rights, they were content neutral and thus warrant intermediate scrutiny, ( id. at 13.) Under intermediate scrutiny, restrictions on protected speech or conduct will be constitutional if they are “justified without reference to the content of the regulated speech, ... are narrowly tailored to serve a significant governmental interest, and ... leave open ample alternative channels for communication of the information.” Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). Defendants argue that the Policies were adequately tailored to serve the important government interests of maintaining order and preventing violence and terrorism, and that they did not restrict more speech than necessary. a. No–Summons Policy Neither of Defendants' theories is persuasive with respect to the No–Summons Policy. The No–Summons Policy did not merely target unlawful conduct, as Defendants contend. Rather, it aimed at unlawful conduct connected to the RNC. (Defs.' Policies 56.1 ¶ 151 .) Thus, if one individual jaywalked as part of an antiwar march, and another individual jaywalked simply to save time, the former faced arrest while the latter risked only a summons, and the only factor accounting for that difference was the former's association with expressive activity directed at the RNC. Not even all protestors were equal under the No–Summons Policy. Only viewpoints within the RNC umbrella exposed protestors to arrest; those protesting issues unrelated to the RNC did not share that risk. (Tr. at 79:22–80:2.)

Thus, it is inaccurate to say that the NoSummons Policy targeted only unlawful conduct. Mere unlawful conduct, after all, did not trigger the Policy. What triggered the Policy was unlawful conduct plus an intent to express some view regarding the RNC. That combination of triggers belies Defendants' claim that the No–Summons Policy did not burden First Amendment rights and was content-neutral. The NoSummons Policy did not simply burden expression incidentally, as is permitted under the First Amendment. See Sorrell v. IMS Health Inc., 131 S.Ct. 2653, 2664 (2011). Rather, it burdened First Amendment rights directly by requiring harsher treatment for conduct associated with certain political expression. See id. (“Lawmakers may no more silence unwanted speech by burdening its utterance than by censoring its content.”).

Defendants cannot avoid application of First Amendment protections by claiming that this burden is acceptable simply because people could avoid arrest by not committing violations. (Defs.' Policies Br. 11.) Minor violations, such as jaywalking, are commonplace, particularly during large-scale First Amendment-protected expressive activity, even if the participants are striving to comply with the law. Significantly harsher treatment for people involved in certain kinds of expressive conduct, therefore, logically could “reasonably deter others from” engaging in that conduct. Tabbaa v. Chertoff, 509 F.3d 89, 102 (2d Cir.2007).

*22 Furthermore, courts have long recognized that even forms of expression associated with unlawful conduct are not necessarily without any First Amendment protections. See N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S. 886, 908 (1982) (“The right to associate does not lose all constitutional protection merely because some members of the group may have participated in conduct or advocated doctrine that itself is not protected.”); see also R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 383–84 (1992) (invalidating a statute prohibiting cross-burning and noting that even constitutionally prescribable speech is not “entirely invisible to the Constitution”). So even if it were the case that that the Policies targeted only people who had violated the law,FN14 that fact alone does not necessarily strip the conduct of the First Amendment protections it would otherwise enjoy.

FN14. The MacNamara Plaintiffs argue that “the policy is plainly unconstitutional as to those plaintiffs whose charges were dismissed.” (MacNamara Policies Opp'n Br. 7–8.) This argument misses the mark for a variety of reasons. First, criminal charges may be dismissed on a number of grounds. Consequently, dismissal is not conclusive evidence of innocence and certainly is not evidence of lack of probable cause. See, e.g., Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 119 (2d Cir.1995) (holding that arrest was supported by probable cause even when the charge was dismissed in the interests of justice); Ryan v. N.Y. Tel. Co., 62 N.Y.2d 494, 504–05 (1984) (“A dismissal ‘in the interest of justice’ is

18 neither an acquittal of the charges nor any determination of the merits. Rather, it leaves the question of guilt or innocence unanswered.”). Second, the concern that the Policies were applied to people who should not have been arrested in the first place is more properly addressed, as it has been supra Section IV.B.3, in a discussion of the Fourth Amendment false arrest claim. Any treatment to which such Plaintiffs were wrongly subjected, including detention and fingerprinting, is more properly considered in determining their damages for those claims.

Once the No–Summons Policy is cast in the proper light, it is also not tenable to maintain, as Defendants do, that the Policy was content-neutral and thus entitled to intermediate scrutiny. (Defs.' Policies Br. 13.) Even though the “RNC-related” demonstrations to which the No–Summons Policy applied covered a wide range of political viewpoints, ranging from criticisms of overseas wars to pro-life denunciations of the Republican Party's abortion platform, see Marcavage, 689 F.3d at 102, those viewpoints all focused on protesting the RNC. The No–Summons Policy would not have applied, for example, to individuals protesting the labor policies of a City store, even if the demonstrations took place at the same time and at the same location. (Tr. at 79:20–79:23.) Although the City may have enforced the Policy without regard to the particular political viewpoint that the protesters espoused, it cannot be said that the Policy was strictly content-neutral, because “the First Amendment's hostility to content-based regulation extends not only to a restriction on a particular viewpoint, but also to a prohibition of public discussion of an entire topic.” See Burson v. Freeman, 504 U.S. 191, 197 (1992) (plurality) (concluding that law prohibiting any campaign-related speech near polling place was not content-neutral); accord Consol. Edison Co. v. Pub. Serv. Comm'n, 447 U.S. 530, 536–37 (1980) (holding that a regulation prohibiting public utilities from including inserts discussing “controversial issues of public policy,” but not other non-political matters, with customers' monthly bills is a content-based restriction on speech).

Content-based restrictions on First Amendment-protected expression receive strict, rather than intermediate, scrutiny. See Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 642 (1994) (“Our precedents ... apply the most exacting scrutiny to regulations that suppress, disadvantage, or impose differential burdens upon speech because of its content.”); Mastrovincenzo v. City of New York, 435 F.3d 78, 98 (2d Cir.2006). Strict scrutiny is particularly appropriate where, as here, the restrictions burden political speech. See McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 347 (1995) (“When a law burdens core political speech, we apply ‘exacting scrutiny,’ and we uphold the restriction only if it is narrowly tailored to serve an overriding state interest.”). Under strict scrutiny, content-based restrictions are “presumptively invalid” unless the Government can show that the restriction is “narrowly tailored to promote a compelling Government interest.” United States v. Playboy Entm't Grp. Inc., 529 U.S. 803, 813 (2000).

*23 With respect to the interest promoted by the No–Summons Policy, Defendants assert that information available to the NYPD prior to the Policy's adoption suggested that large numbers of people were planning to come to the City to participate in unlawful and potentially violent activity and that those individuals, many of whom were from out of state, would likely engage in repeated unlawful conduct if they were merely given summonses. (Defs.' Policies 56.1 ¶¶ 175–189, 215–217.)

It does not seem that Plaintiffs genuinely dispute-nor could they-that the City faced threats of terrorism and that the RNC created a particularly large threat of violence and disorder. ( Id . ¶¶ 64–66, 98–100; Schiller Policies Opp'n 56.1 ¶¶ 64–66, 98–100.) Nor do Plaintiffs appear to dispute that preventing terrorist and anarchist attacks and massive disorder constitutes a compelling government interest. See, e.g., Marcavage, 689 F.3d at 105 (applying intermediate scrutiny but noting that the challenges surrounding the RNC “bespeak a significant-indeed, compelling-government interest in security”); Tabbaa v. Chertoff, 509 F.3d 89, 103 (2d Cir.2007) (“It is undisputed that the government's interest in protecting the nation from terrorism constitutes a compelling state interest....”).

Instead, Plaintiffs argue that the Policies were not actually motivated by the particular concerns cited by Defendants, and that Deputy Commissioner Cohen was not involved in the creation of the No–Summons Policy, which was adopted in

19 April 2004 “without any deliberation.” (Schiller Policies Opp'n Br. 2.) Moreover, Plaintiffs dispute that the threats of violence, false identification, and repeated unlawful conduct were specifically connected with RNC protests. ( Id. at 3.)

The record does not definitively establish when the decision to adopt the No–Summons Policy was made. A memo from May 4, 2004 regarding an April 27, 2004 meeting of the “Mass Arrest/Prisoner Processing Sub–Committee” at the NYPD—before Cohen presented many of his findings to Commissioner Kelly and others-states that “[T]he following items were discussed: ... No summonses will be issued.” (Schiller Policies Add'l Facts ¶ 23.) Additionally, a former NYPD official, Patrick Devlin, asserted that as early as March or April, Chief Esposito stated “[d]efinitive[ly]” that no summonses would be issued. ( Id.)

Defendants, however, insist that Cohen “conveyed the intelligence information and threat assessment to Chief Esposito and Commissioner Kelly and the reason he did so was to facilitate their planning for the policing of the Convention,” which seems to be undisputed. (Defs.' Policies Reply Br. 7; see Defs.' Policies 56.1 ¶¶ 64, 154) Moreover, it is undisputed that, thereafter, numerous meetings took place in which NYPD officials further discussed, formulated, and refined the strategies and policies that would be applied for RNC-related arrests. (Defs.' Reply 56.1 ¶¶ 149–150.) Based on all of the evidence in the record regarding the ongoing policymaking meetings, the Court finds that it cannot be reasonably disputed that the intelligence presented throughout the summer of 2004 informed the NYPD's decisionmaking about policies to apply to the RNC. Thus, the Court finds that the No–Summons Policy was adopted to promote a compelling set of government interests.

*24 In light of that conclusion, the next question is whether the No–Summons Policy was narrowly tailored to serve those interests. Narrow tailoring requires that the No–Summons Policy be the “least restrictive means to further the articulated interest,” Sable Commc'ns, Inc. v. F.C.C., 492 U.S. 115, 126 (1989)-in this case, averting mass disorder on a scale that could shut down the City and RNC (Defs.' Policies 56.1 ¶ 177). The Second Circuit recently confronted a similar question in a similar factual context in Tabbaa v. Chertoff. That case involved a group of American citizens of Muslim faith who were detained and searched by U.S. officials at the Canadian border pursuant to intelligence indicating that the conference they had attended in Canada included persons with known terrorist ties. Tabbaa, 509 F.3d at 92. As part of the special operation established in response to that intelligence, Homeland Security officers subjected the five plaintiffs to a screening procedure normally reserved for suspected terrorists, which included frisking, fingerprinting, photographing, and car searches, and which resulted in detention of four to six hours. Id. at 94–95. The Tabbaa plaintiffs brought suit, claiming, inter alia, that the special operation violated their fundamental First Amendment right of free association. Id. at 95.

The Second Circuit agreed that the operation imposed burdens on the plaintiffs' rights that were “sufficiently ‘significant’ to implicate the protections of the First Amendment.” Id. at 102. Nevertheless, applying a strict scrutiny standard, see id., the court found that there were no viable less restrictive means of achieving the government's undisputedly compelling interest in defending against terrorism. Id. at 103. Several aspects of the special operation informed that finding. First, the intelligence indicating that “certain individuals who were associated with terrorist organizations ... would be in attendance” at the conference gave the government “ample justification to implement the [operation], which was explicitly designed” to serve the government's anti-terrorism interest. Id. (internal quotation marks omitted; ellipses in original). Second, the operation was “carefully circumscribed” and applied only to conferences “about which the government had specific intelligence regarding the possible congregation of suspected terrorists.” Id. Third, it was “limited to routine screening measures.” Id. And finally, it applied only “to those individuals, regardless of their religion, whom [the government] could establish had attended the conferences in question.” Id.

The No–Summons Policy passes constitutional muster for similar reasons. Like the special operation procedure in Tabbaa, the No–Summons Policy was the City's answer to a threat derived from intelligence sources-namely, that demonstrators aimed to “shut down the City of New York and the RNC” through “continuous unlawful behavior” (Defs.' Policies 56.1 ¶ 177 (internal quotation marks omitted); see id. ¶¶ 104–109, 111–115) and would be undeterred by the issuance of

20 summonses ( id. ¶¶ 182–183). The Policy was tailored to apply only to persons committing unlawful conduct related to the RNC-that is, the very persons who posed the threat revealed by intelligence ( id. ¶¶ 186–188)–and was in place only for the brief duration the threat existed ( Id. ¶ 172). Finally, like the measures in Tabbaa, the City had no “viable alternatives” given the masses of demonstrators present in New York for the Convention. In Tabbaa, the Second Circuit rejected plaintiffs' argument that surveillance of individual conference attendees suspected of terrorism would have been a less restrictive alternative, noting that because “approximately 13,000 people attended the [conference,] it is entirely unrealistic to expect the government to have been able to identify and keep track of all those who personally interacted with suspected terrorists who attended the conference.” Tabbaa, 509 F.3d at 104. During the RNC, the City similarly faced a large, undifferentiated threat involving hundreds of thousands of demonstrators. (Defs.' Policies 56.1 ¶ 8.) Under those circumstances, it is simply unrealistic to expect the City to have implemented a more narrowly tailored, individualized alternative to the No–Summons Policy. The Policy was tailored to concerns that individuals involved in RNC-related, summons-eligible offenses were far less likely to be deterred from continuing their unlawful conduct than the ordinary person committing a summons-eligible offense. This is supported by the information obtained by the NYPD about RNC protesters ( see Defs.' Policies 56.1 ¶¶ 175–186), as well as common sense. Put simply, individuals from outside of the City, who were coming to the City for the sole purpose of protesting, were far more likely to repeat their illegal conduct if not removed from the scene, particularly if they believed the NYPD was unlikely to pursue prosecution once the protesters returned home. In this regard, RNC-related protesters were readily distinguishable from street vendors who place their carts in a location that blocks traffic, or even City-based labor protesters seeking to temporarily impede traffic to have their views heard. In short, then, the Court finds that the City was justified in applying the No–Summons Policy as a check to serial protestors who might otherwise engage in repeat acts of disobedience designed to grind the City to a halt at minimal cost or inconvenience to the protestors themselves.

*25 Plaintiffs appear not to contend that there was a less restrictive alternative to the No–Summons Policy. To the contrary, their chief attack on the Policy's tailoring is that it was insufficiently broad. Plaintiffs argue that if City officials truly were motivated by concerns that “terrorists” would engage in summons-eligible offenses, they should have arrested anyone guilty of illegal activity remotely connected to the Convention. (Schiller Policies Opp'n Br. 19.) Instead, Plaintiffs argue, the City continued to issue summonses for a range of offenses in the vicinity of Madison Square Garden, where RNC delegates were staying, dining, and otherwise spending time. (Schiller Policies Add'l Facts ¶¶ 19–20; Schiller Policies Br. 5–6).

Plaintiffs' tailoring argument fails for two reasons. First, no intelligence suggested that the RNC delegates, or the vendors serving them, shared the demonstrators' goal of disrupting the Convention or shutting down the City. Therefore, it would have been overreaching, not to mention foolish, to apply the No–Summons Policy to them.

Second, and more importantly, Plaintiffs misstate the City's interest. Terrorism was one but not the exclusive or chief factor motivating the No–Summons Policy. It is undisputed that intelligence suggested to City officials that demonstrators posed a more general threat of “continuous unlawful behavior” that could lead to mass disorder and shutting down the City and RNC. (Defs.' Policies 56.1 ¶ 177 (internal quotation marks omitted).) Perhaps it is a feature of the post–9/11 age that people forget the dire consequences that can flow even from unlawful demonstrations, but it takes watching only a few moments of the video of the East 16th Street protest to see that no ambulance or fire truck could have gotten through that crowd of dancers, marchers, and instrument-wielding musicians. Writ large, the chaos on East 16th Street could have paralyzed the City and denied its residents access to the emergency services on which lives depend. The protestors simply had no right to hold ambulances, cabs, and commuters hostage by staging an impromptu parade in the middle of Manhattan. As the Supreme Court has recognized,

[t]he rights of free speech and assembly, while fundamental in our democratic society, still do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time.... One would not be justified in ignoring the familiar red light because this was thought to be a means of social protest. Nor could one, contrary to traffic

21 regulations, insist upon a street meeting in the middle of Times Square at the rush hour as a form of freedom of speech or assembly. Governmental authorities have the duty and responsibility to keep their streets open and available for movement.

Cox v. Louisiana, 379 U.S. 536, 554–55 (1965). The No–Summons Policy was as much addressed to this general fear of mass chaos as to the specific concerns regarding terrorism. Intelligence reports indicated that protestors planned to stage demonstrations like the one on East 16th Street over and over. (Defs.' Policies 56.1 ¶¶ 186–187.) The City was not required to engage in an ineffectual game of tag, in which protestors could stop traffic, get a ticket, and proceed to their next rendezvous for further disorder. The No–Summons Policy was tailored to this well-founded fear of recidivism, which could have rendered normally minor infractions highly disruptive and potentially dangerous.

*26 Accordingly, the Court finds that the No–Summons Policy was narrowly tailored to address the unique challenges associated with hosting a four-day national political convention. Based on these conclusions, the Court grants Defendants' motions for summary judgment regarding Plaintiffs' First Amendment claims challenging the City's No–Summons Policy. b. Fingerprinting Policy Unlike the No–Summons Policy, which the Court found imposed a significant burden on Plaintiffs' First Amendment rights, the Court finds that the Fingerprinting Policy did not impose a sufficiently substantial burden to implicate the First Amendment. That is because once Plaintiffs were under arrest, the additional burden imposed by the Fingerprinting Policy was minimal. FN15 See Cnty. of Riverside, 500 U.S. at 58 (recognizing fingerprinting as one of the “administrative steps incident to arrest”). Furthermore, there is no dispute that once the police had arrested the protestors, the police were entitled to demand identification. It is difficult to see how fingerprinting chills First Amendment rights more than collecting identification documents, particularly since both measures serve the same purpose of identifying arrestees. See Kelly, 55 F.2d at 70 (holding that fingerprinting “is no more humiliating than other means of identification that have been universally held to infringe neither constitutional nor common-law rights”).

FN15. Again, to the extent that some Plaintiffs appear to suggest that the Fingerprinting Policy was implemented in a manner that unreasonably prolonged their detention, such a claim is properly taken up at a later time.

Because the Court finds that the Fingerprinting Policy did not substantially burden Plaintiffs' First Amendment rights, the Court also grants Defendants' motions for summary judgment regarding Plaintiffs' First Amendment claims challenging the City's Fingerprinting Policy.

5. First Amendment Retaliation Defendants also seek summary judgment on Plaintiffs' claim that the Policies constituted retaliation for protestors' exercise of their First Amendment rights. As an initial matter, it should be noted that Plaintiffs have not made any arguments pursuant to this First Amendment retaliation claim in their briefs. For this reason alone, the Court would be justified in deeming the claims abandoned and granting summary judgment in favor of Defendants. See Abrahams v. Young & Rubicam Inc., 79 F.3d 234, 237 (2d Cir.1996) (deeming claims not addressed in briefing waived); First Capital Asset Mgmt., Inc. v. Brickellbush, 218 F.Supp.2d 369, 392–93 (S.D.N.Y.2002) (same). However, even if Plaintiffs' retaliation claims were not abandoned, the Court finds that dismissal of such claims is appropriate.

“To establish a prima facie case of First Amendment retaliation, a plaintiff must establish (1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there was a causal connection between the protected speech and the adverse action.” Scott v. Coughlin, 344 F.3d 282, 287 (2d Cir.2003) (internal quotation marks omitted). An adverse action in this context is “conduct that would deter a similarly situated individual of ordinary firmness.” Cox v. Warwick Valley Cent. Sch. Dist., 654 F.3d 267, 273 (2d Cir.2011) (internal

22 quotation marks omitted). However, even if the plaintiff establishes a prima facie case, the defendant may prevail on summary judgment by establishing dual motivation, i.e., “that even without the improper motivation the alleged retaliatory action would have occurred.” Scott, 344 F.3d at 287–88.

*27 As set forth above, Plaintiffs have not established that the No–Summons and Fingerprinting Policies constituted adverse actions. In any event, even if Plaintiffs could establish a prima facie case of retaliation, Defendants have established that the Policies were motivated at least in substantial part by concerns about disorder that were specific to the nature of the RNC-related demonstrations. Accordingly, the Court dismisses Plaintiffs' retaliation claims, to the extent they have not been abandoned.

6. Fourteenth Amendment All but the Schiller and Dinler Plaintiffs further argue that the Policies constitute a violation of the Equal Protection Clause of the Fourteenth Amendment insofar as they targeted individuals for different treatment based on whether they engaged in protest activities.

This claim substantially tracks Plaintiffs' First Amendment claims, since the crux of both claims is that the City burdened Plaintiffs' rights to speech and association by singling out individuals engaged in expressive conduct for different treatment. Accordingly, for the reasons stated above, the Court grants Defendants' motion for summary judgment with respect to Plaintiffs' Fourteenth Amendment claims. Cf. City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 55 n. 4 (1986) (rejecting respondents' argument that the ordinance at issue violated the Equal Protection Clause where they failed to demonstrate that it violated the First Amendment).

* * * For the foregoing reasons, the Court grants Defendants' motions for summary judgment on Plaintiffs' constitutional claims relating to the No–Summons and Fingerprinting Policies.

V. Conclusion For the reasons set forth above, Defendants' motions for summary judgment with respect to the false arrest claims at Fulton Street are HEREBY DENIED, and Plaintiffs' motions for summary judgment with respect to the false arrest claims at Fulton Street are GRANTED. With respect to the false arrest claims at East 16th Street, Defendants and Plaintiffs' cross-motions for summary judgment are DENIED. Defendants' motions for summary judgment with respect to the constitutionality of the No–Summons and Fingerprinting Policies are GRANTED. Plaintiffs' motions for summary judgment with respect to their state law fingerprinting claims are GRANTED, and Defendants' motions are DENIED. Plaintiffs' motion to strike is DENIED. *28 By October 31, 2012, the parties shall submit a joint letter regarding the proposed next steps in these actions. In doing so, the parties should take this opportunity to reflect on this litigation and the prospects for a fair resolution of the remaining claims. The events underlying these actions occurred more than eight years, and two Republican National Conventions, ago. In a different legal context, Justice Robert Jackson once warned of the tradeoff between the “inconvenience and costs of piecemeal review on the one hand and the danger of denying justice by delay on the other.” Dickinson v. Petroleum Conversion Corp., 338 U.S. 507, 511 (1950). This litigation threatens to achieve the worst of each alternative, to the detriment of all parties and the Court itself. With that in mind, the Court urges the parties and their counsel to confer and assess the proper course toward a speedy and just resolution of these actions.

SO ORDERED.

S.D.N.Y.,2012. Dinler v. City of New York Slip Copy, 2012 WL 4513352 (S.D.N.Y.)

23 Supreme Court of the United States Fred L. SHUTTLESWORTH, Petitioner, v. CITY OF BIRMINGHAM, ALA.

No. 42. Argued Nov. 18, 1968. Decided March 10, 1969.

Defendant was convicted of violating city ordinance making it an offense to participate in any parade, procession, or other public demonstration without first obtaining a permit from the city commission. The Recorder's Court of the City of Birmingham entered judgment of conviction, and the defendant appealed. The Circuit Court, on trial de novo, entered judgment of conviction, and the defendant appealed. The Court of Appeals, 43 Ala.App. 68, 180 So.2d 114, reversed the judgment, and the city brought certiorari. The Supreme Court, 281 Ala. 542, 206 So.2d 348, reversed the judgment of the Court of Appeals, and the defendant brought certiorari. The United States Supreme Court, Mr. Justice Stewart, held that fact, if true, that state Supreme Court's extraordinarily narrow construction of ordinance enabled the ordinance, otherwise invalid, to pass constitutional muster would not restore validity to conviction where administration of ordinance had led to denial or unwarranted abridgment of defendant's right of assembly and opportunities for communication of thought and discussion of public questions in public places.

Judgment reversed.

Law subjecting exercise of First Amendment freedoms to prior restraint of a license, without narrow, objective, and definite standards to guide licensing authority is unconstitutional. U.S.C.A.Const. Amend. 1.

Ordinance which makes peaceful enjoyment of freedoms guaranteed by Constitution contingent upon uncontrolled will of an official, as by requiring a permit or license which may be granted or withheld in official's discretion, is an unconstitutional censorship or private restraint upon enjoyment of such freedoms. U.S.C.A.Const. Amend. 1.

Person faced with an unconstitutional licensing law which purports to require a license as a prerequisite to exercise of right of free expression may ignore the law and engage with impunity in exercise of such right. U.S.C.A.Const. Amend. 1.

Fact that one subject to restraints of unconstitutional licensing ordinance has not yielded to its demands will not preclude him from having right to attack constitutionality of ordinance.

Municipality must, in interest of traffic regulation and public safety, exercise a great deal of control over use of public streets and sidewalks.

Governmental authorities have duty and responsibility to keep streets open and available for movement.

Streets and parks are held in trust for use of public.

Use of streets and public places is part of privileges, immunities, rights, and liberties of citizens. U.S.C.A.Const. Amends. 1, 14.

United States citizen's privilege to use streets and parks for communication of views on national questions may be regulated in interest of all. U.S.C.A.Const. Amends. 1, 14.

United States citizen's privilege to use streets and parks for communication of views and national questions is relative, not absolute, and must be exercised in subordination to the general comfort and convenience and in countenance with peace and good order but must not, in guise of regulation, be abridged or denied. U.S.C.A.Const. Amends. 1, 14.

Statute preventing serious interference with normal usage of streets and parks is valid, but licensing system which vests in an administrative official discretion to grant or withhold a permit upon broad criteria unrelated to proper regulation of public places is invalid. U.S.C.A.Const. Amends. 1, 14.

In regard to use of public streets and sidewalks, municipality may not empower its licensing officials to roam essentially at will, dispensing or withholding permission to speak, assemble, picket, or parade according to their own opinions regarding potential effect of the activity on welfare, decency, or morals of community. U.S.C.A.Const. Amends. 1, 14.

In determining validity of conviction under municipal licensing ordinance regulating parades, processions, and other public demonstrations and capable of being construed so that it would be constitutional, inquiry would be whether control of use of streets for a parade or procession was, in fact, exerted so that it did not deny or unwarrantedly abridge right of assembly and opportunities for communication of thought and discussion of public questions in public places. U.S.C.A.Const. Amend. 1.

United States Supreme Court could properly, in subsequent litigation before the Supreme Court and between the same parties, take judicial notice of record in prior litigation formerly before the Supreme Court.

Conviction for violating city ordinance making it an offense to participate in any parade, procession, or other public demonstration without a permit was invalid, where city authorities acting under ordinance had refused to permit a demonstration by defendant and others under any circumstances, even though state Supreme Court subsequently upheld ordinance by construing it to require issuance of permit if convenience of public use of streets or sidewalks was not unduly disturbed. U.S.C.A.Const. Amends. 1, 14.

Fact, if true, that state Supreme Court's extraordinarily narrow construction of municipal licensing ordinance regulating parades, processions, or other public demonstrations enabled the ordinance, otherwise invalid, to pass constitutional muster would not restore validity to conviction for violation of ordinance, where, in regard to events leading up to conviction, administration of ordinance led to denial or unwarranted abridgment of defendant's right of assembly and opportunities for communication of thought and discussion of public questions in public places. U.S.C.A.Const. Amends. 1, 14.

*148 Jack Greenberg, New York City, for petitioner.

Earl McBee, Birmingham, Ala., for respondent.

Mr. Justice STEWART delivered the opinion of the Court.

The petitioner stands convicted for violating an ordinance of Birmingham, Alabama, making it an offense to participate in any ‘parade or procession or other public demonstration’ without first obtaining a permit from the City Commission. The question before us is whether that conviction can be squared with the Constitution of the United States.

On the afternoon of April 12, Good Friday, 1963, 52 people, all Negroes, were led out of a Birmingham church by three Negro ministers, one of whom was the petitioner, Fred L. Shuttlesworth. They walked in orderly fashion, two abreast for the most part, for four *149 blocks. The purpose of their march was to protest the alleged denial of civil rights to Negroes in the city of Birmingham. The marchers stayed on the sidewalks except at street intersections, and they did not interfere with other pedestrians. No automobiles were obstructed, nor were traffic signals disobeyed. The petitioner was with the group for at least part of this time, walking alongside the others, and once moving from the front to the rear. As the marchers moved along, a crowd of spectators fell in behind them at a distance. The spectators at some points spilled out into the street, but the street was not blocked and vehicles were not obstructed.

At the end of four blocks the marchers were stopped by the Birmingham police, and were arrested for violating s 1159 of the General Code of Birmingham. That ordinance reads as follows:

‘It shall be unlawful to organize or hold, or to assist in organizing or holding, or to take part or participate in, any parade or procession or other public**938 demonstration on the streets or other public ways of the city, unless a permit therefore has been secured from the commission.

‘To secure such permit, written application shall be made to the commission, setting forth the probable number of persons, vehicles and animals which will be engaged in such parade, procession or other public demonstration, the purpose of which it is to be held or had, and the streets or other public ways over, along or in which it is desired to have or hold such parade, procession or other public demonstration. The commission shall grant a written permit for such parade, procession or other public demonstration, prescribing the streets or other public ways which may be used therefor, unless in its judgment the public welfare, peace, safety, health, decency, good order, morals or convenience require that it be *150 refused. It shall be unlawful to use for such purposes any other streets or public ways than those set out in said permit.

‘The two preceding paragraphs, however, shall not apply to funeral processions.’

The petitioner was convicted for violation of s 1159 and was sentenced to 90 days' imprisonment at hard labor and an additional 48 days at hard labor in default of payment of a $75 fine and $24 costs. The Alabama Court of Appeals reversed the judgment of conviction, holding the evidence was insufficient ‘to show a procession which would require, under the terms of s 1159, the getting of a permit,’ that the ordinance had been applied in a discriminatory fashion, and that it was unconstitutional in imposing an ‘invidious prior restraint’ without ascertainable standards for the granting of permits. 43 Ala.App. 68, 95, 83, 180 So.2d 114, 139, 127. The Supreme Court of Alabama, however, giving the language of s 1159 an extraordinarily narrow construction, reversed the judgment of the Court of Appeals and reinstated the conviction. 281 Ala. 542, 206 So.2d 348. We granted certiorari to consider the petitioner's constitutional claims, 390 U.S. 1023, 88 S.Ct. 1417, 20 L.Ed.2d 280.

[1] Headnote Citing References[2] Headnote Citing References[3] Headnote Citing References[4] Headnote Citing References There can be no doubt that the Birmingham ordinance, as it was written, conferred upon the City Commission virtually unbridled and absolute power to prohibit any ‘parade,’ ‘procession,'FN1 or ‘demonstration’ on the city's streets or public ways. For in deciding whether or not to withhold a permit, the members of the Commission were to be guided only by their own ideas of ‘public welfare, peace, safety, health, decency, good order, morals or convenience.’ This ordinance as it was written, therefore, fell squarely within the ambit of the many decisions of this Court over the last 30 years, holding that a law subjecting the exercise of First Amendment freedoms to *151 the prior restraint of a license, without narrow, objective, and definite standards to guide the licensing authority, is unconstitutional.FN2 ‘It is settled by a long line of recent **939 decisions of this Court that an ordinance which, like this one, makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official-as by requiring a permit or license which may be granted or withheld in the discretion of such official-is an unconstitutional censorship or prior restraint upon the enjoyment of those freedoms.’ Staub v. City of Baxley, 355 U.S. 313, 322, 78 S.Ct. 277, 282, 2 L.Ed.2d 302. And our decisions have made clear that a person faced with such an unconstitutional licensing law may ignore it and engage with impunity in the exercise of the right of free expression for which the law purports to require a license.FN3 ‘The Constitution can hardly be thought to deny to one subjected to the restraints of such an ordinance the right to attack its constitutionality, because he has not yielded to its demands.’ Jones v. City of Opelika, 316 U.S. 584, 602, 62 S.Ct. 1231, 1242, 86 L.Ed. 1691 (Stone, C.J., dissenting), adopted per curiam on rehearing, 319 U.S. 103, 104, 63 S.Ct. 890, 87 L.Ed. 1290.

FN1. Except funeral processions.

FN2. See Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949; Hague v. C.I.O., 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423; Schneider v. State, 308 U.S. 147, 163-165, 60 S.Ct. 146, 151-152, 84 L.Ed. 155; Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213; Largent v. Texas, 318 U.S. 418, 63 S.Ct. 667, 87 L.Ed. 873; Jones v. City of Opelika, 316 U.S. 584, 600, 611, 62 S.Ct. 1231, 1240, 1245, 86 L.Ed. 1691 (Stone, C.J., dissenting) (Murphy, J., dissenting), vacated and previous dissenting opinions adopted per curiam, 319 U.S. 103, 63 S.Ct. 890, 87 L.Ed. 1290; Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265; Tucker v. Texas, 326 U.S. 517, 66 S.Ct. 274, 90 L.Ed. 274; Saia v. New York, 334 U.S. 558, 68 S.Ct. 1148, 92 L.Ed. 1574; Kunz v. New York, 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280; Niemotko v. Maryland, 340 U.S. 268, 71 S.Ct. 325, 328, 95 L.Ed. 267, 280; Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098; Gelling v. Texas, 343 U.S. 960, 72 S.Ct. 1002, 96 L.Ed. 1359; Superior Films, Inc. v. Department of Education, etc., 346 U.S. 587, 74 S.Ct. 286, 98 L.Ed. 329; Staub v. City of Baxley, 355 U.S. 313, 78 S.Ct. 277, 2 L.Ed.2d 302; Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471; Interstate Circuit, Inc. v. Dallas, 390 U.S. 676, 88 S.Ct. 1298, 20 L.Ed.2d 225.

FN3. Lovell v. City of Griffin, 303 U.S., at 452-453, 58 S.Ct., at 669; Schneider v. State, 308 U.S., at 159, 165, 60 S.Ct., at 152; Largent v. Texas, 318 U.S., at 419, 422, 63 S.Ct., at 668, 669; Jones v. City of Opelika, 316 U.S., at 602, 62 S.Ct., at 1241, adopted per curiam on rehearing, 319 U.S., at 104, 63 S.Ct. 890; Staub v. City of Baxley, 355 U.S., at 319, 78 S.Ct., at 280; Freedman v. Maryland, 380 U.S. 51, 56-57, 85 S.Ct. 734, 737-738, 13 L.Ed.2d 649.

*152 [5] Headnote Citing References[6] Headnote Citing References[7] Headnote Citing References[8] Headnote Citing References[9] Headnote Citing References[10] Headnote Citing References[11] Headnote Citing References It is argued, however, that what was involved here was not ‘pure speech,’ but the use of public streets and sidewalks, over which a municipality must rightfully exercise a great deal of control in the interest of traffic regulation and public safety. That, of course, is true. We have emphasized before this that ‘the First and Fourteenth Amendments (do not) afford the same kind of freedom to those who would communicate ideas by conduct such as patrolling, marching, and picketing on streets and highways, as these amendments afford to those who communicate ideas by pure speech.’ Cox v. Louisiana, 379 U.S. 536, 555, 85 S.Ct. 453, 464, 13 L.Ed.2d 471. ‘Governmental authorities have the duty and responsibility to keep their streets open and available for movement.’ Id., at 554-555, 85 S.Ct., at 464.

But our decisions have also made clear that picketing and parading may nonetheless constitute methods of expression, entitled to First Amendment protection. Cox v. Louisiana, supra; Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697; Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093. ‘Whenever the title 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. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied.’ Hague v. C.I.O., 307 U.S. 496, 515-516, 59 S.Ct. 954, 964, 83 L.Ed. 1423 (opinion of Mr. Justice Roberts, joined by Mr. Justice Black).

**940 *153 [12] Headnote Citing References[13] Headnote Citing References Accordingly, ‘although (a) this Court has recognized that a statute may be enacted which prevents serious interference with normal usage of streets and parks, * * * we have consistently condemned licensing systems which vest in an administrative official discretion to grant or withhold a permit upon broad criteria unrelated to proper regulation of public places.’ Kunz v. New York, 340 U.S. 290, 293-294, 71 S.Ct. 312, 315, 95 L.Ed. 280. See also Saia v. New York, 334 U.S. 558, 68 S.Ct. 1148, 92 L.Ed. 1574; Niemotko v. Maryland, 340 U.S. 268, 71 S.Ct. 325, 328, 95 L.Ed. 267, 280. Even when the use of its public streets and sidewalks is involved, therefore, a municipality may not empower its licensing officials to roam essentially at will, dispensing or withholding permission to speak, assemble, picket, or parade according to their own opinions regarding the potential effect of the activity in question on the ‘welfare,’ ‘decency,’ or ‘morals' of the community.

Understandably, under these settled principles, the Alabama Court of Appeals was unable to reach any conclusion other than that s 1159 was unconstitutional. The terms of the Birmingham ordinance clearly gave the City Commission extensive authority to issue or refuse to issue parade permits on the basis of broad criteria entirely unrelated to legitimate municipal regulation of the public streets and sidewalks.

It is said, however, that no matter how constitutionally invalid the Birmingham ordinance may have been as it was written, nonetheless the authoritative construction that has now been given it by the Supreme Court of Alabama has so modified and narrowed its terms as to render it constitutionally acceptable. It is true that in affirming the petitioner's conviction in the present case, the Supreme Court of Alabama performed a remarkable job of plastic surgery upon the face of the ordinance. The court stated that when s 1159 provided that the City Commission could withhold a permit whenever ‘in its *154 judgment the public welfare, peace, safety, health, decency, good order, morals or convenience require,’ the ordinance really meant something quite different:

‘(We) do not construe this (language) as vesting in the Commission an unfettered discretion in granting or denying permits, but, in view of the purpose of the ordinance, one to be exercised in connection with the safety, comfort and convenience in the use of the streets by the general public. * * * The members of the Commission may not act as censors of what is to be said or displayed in any parade. * *

‘* * * (We) do not construe s 1159 as conferring upon the ‘commission’ of the City of Birmingham the right to refuse an application for a permit to carry on a parade, procession or other public demonstration solely on the ground that such activities might tend to provoke disorderly conduct. * * *

‘We also hold that under s 1159 the Commission is without authority to act in an arbitrary manner or with unfettered discretion in regard to the issuance of permits. Its discretion must be exercised with uniformity of method of treatment upon the facts of each application, free from improper or inappropriate considerations and from unfair discrimination. A systematic, consistent and just order of treatment with reference to the convenience of public use of the streets and sidewalks must be followed. Applications for permits to parade must be granted if, after an investigation it is found that the convenience of the public in the use of the streets or sidewalks would not thereby be unduly disturbed.’ 281 Ala., at 545-546, 206 So.2d, at 350-352.

[14] Headnote Citing References In transforming s 1159 into an ordinance authorizing no more than the **941 objective and even-handed regulation *155 of traffic on Birmingham's streets and public ways, the Supreme Court of Alabama made a commendable effort to give the legislation ‘a field of operation within constitutional limits.’ 281 Ala., at 544, 206 So.2d, at 350. We may assume that this exercise was successful, and that the ordinance as now authoritatively construed would pass constitutional muster.FN4 It does not follow, however, that the severely narrowing construction put upon the ordinance by the Alabama Supreme Court in November of 1967 necessarily serves to restore constitutional validity to a conviction that occurred in 1963 under the ordinance as it was written. The inquiry in every case must be that stated by Chief Justice Hughes in Cox v. New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049-whether control of the use of the streets for a parade or procession was, in fact, ‘exerted so as not to deny or unwarrantedly abridge the right of assembly and the opportunities for the communication of thought and the discussion of public questions immemorially associated with resort to public places.’ Id., at 574, 61 S.Ct., at 765.

FN4. The validity of this assumption would depend upon, among other things, the availability of expeditious judicial review of the Commission's refusal of a permit. Cf. Poulos v. New Hampshire, 345 U.S. 395, 420, 73 S.Ct. 760, 773, 97 L.Ed. 1105 (Frankfurter, J., concurring in result); Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649. See also the concurring opinion of Mr. Justice HARLAN, post, p. 943.

In Cox the Court found that control of the streets had not been exerted unconstitutionally. There the Court was dealing with a parade-permit statute that was silent as to the criteria governing the granting of permits. In affirming the appellants' convictions for parading without a permit, the New Hampshire Supreme Court had construed the statute to require the issuance of a permit to anybody who applied, subject only to the power of the licensing authority to specify the ‘time, place and manner’ of the parade in order to accommodate competing*156 demands for public use of the streets. This Court accepted the state court's characterization of the statute, and its assurance that the appellants “had a right, under the act, to a license to march when, where and as they did, if after a required investigation it was found that the convenience of the public in the use of the streets would not thereby be unduly disturbed, upon such conditions or charges in time, place and manner as would avoid disturbance.” 312 U.S., at 576, 61 S.Ct., at 766. In affirming the New Hampshire judgment, however, this Court was careful to emphasize:

‘There is no evidence that the statute has been administered otherwise than in the fair and nondiscriminatory manner which the state court has construed it to require.’ Id., at 577, 61 S.Ct., at 766.

In the present case we are confronted with quite a different situation. In April of 1963 the ordinance that was on the book in Birmingham contained language that affirmatively conferred upon the members of the Commission absolute power to refuse a parade permit whenever they thought ‘the public welfare, peace, safety, health, decency, good order, morals or convenience require that it be refused.’ It would have taken extraordinary clairvoyance for anyone to perceive that this language meant what the Supreme Court of Alabama was destined to find that it meant more than four years later; and, with First Amendment rights hanging in the balance, we would hesitate long before assuming that either the members of the Commission or the petitioner possessed any such clairvoyance at the time of the Good Friday march.

**942 [15] Headnote Citing References But we need not deal in assumptions. For, as the respondent in this case has reminded us, in assessing the constitutional claims of the petitioner, ‘(i)t is less than realistic to ignore the surrounding relevant circumstances. *157 These include not only facts developed in the Record in this case, but also those shown in the opinions in the related case of Walker v. City of Birmingham (1946), 388 U.S. 307 (87 S.Ct. 1824, 18 L.Ed.2d 1210) * * *.'FN5 The petitioner here was one of the petitioners in the Walker case, in which, just two Terms ago, we had before us a record showing many of the ‘surrounding relevant circumstances' of the Good Friday march. As the respondent suggests, we may properly take judicial notice of the record in that litigation between the same parties who are now before us.FN6

FN5. Brief for Respondent 1-2. FN6. National Fire Ins. Co. v. Thompson, 281 U.S. 331, 336, 50 S.Ct. 288, 290, 74 L.Ed. 881, and cases cited therein.

[16] Headnote Citing References[17] Headnote Citing References Uncontradicted testimony was offered in Walker to show that over a week before the Good Friday march petitioner Shuttlesworth sent a representative to apply for a parade permit. She went to the City Hall and asked ‘to see the person or persons in charge to issue permits, permits for parading, picketing, and demonstrating.’ She was directed to Commissioner Connor, who denied her request in no uncertain terms. ‘He said, ‘No, you will not get a permit in Birmingham, Alabama to picket. I will picket you over to the City Jail,’ and he repeated that twice.' 388 U.S., at 317, n. 9, 325, 335, 339, 87 S.Ct., at 1830, 1834, 1839, 1841.

Two days later petitioner Shuttlesworth himself sent a telegram to Commissioner Connor requesting, on behalf of his organization, a permit to picket ‘against the injustices of segregation and discrimination.’ His request specified the sidewalks where the picketing would take place, and stated that ‘the normal rules of picketing’ would be obeyed. In reply, the Commissioner sent a wire stating that permits were the responsibility of the entire Commission rather than of a single Commissioner, and closing with the blunt admonition: ‘I insist that you *158 and your people do not start any picketing on the streets in Birmingham, Alabama.’ Id., at 318, n. 10, 325, 335-336, 339-340, 87 S.Ct. at 1830, 1834, 1839-1840, 1841-1842. FN7

FN7. The legal and constitutional issues involved in the Walker case were quite different from those involved here. The Court recently summarized the Walker decision as follows:‘In that case, the Court held that demonstrators who had proceeded with their protest march in face of the prohibition of an injunctive order against such a march, could not defend contempt charges by asserting the unconstitutionality of the injunction. The proper procedure, it was held, was to seek judicial review of the injunction and not to disobey it, no matter how well-founded their doubts might be as to its validity.’ Carroll v. President and Commissioners of Princess Anne, 393 U.S. 175, 179, 89 S.Ct. 347, 350, 21 L.Ed.2d 325.

These ‘surrounding relevant circumstances' make it indisputably clear, we think, that in April of 1963-at least with respect to this petitioner and his organizationFN8-the city authorities thought the ordinance meant exactly what it said. The petitioner was clearly given to understand that under no circumstances would he and his group be permitted to demonstrate in Birmingham, not that a demonstration would be approved if a time and place were selected that would minimize traffic problems. There is no indication whatever that the authorities considered themselves obligated-as the Alabama Supreme Court more than four years later said that they were-to issue a permit ‘if, after an investigation **943 (they) found that the convenience of the public in the use of the streets or sidewalks would not thereby be unduly disturbed.’

FN8. In Walker the petitioner made an offer of proof that parade permits had been issued to other groups by the city clerk at the request of the traffic bureau of the police department. 388 U.s,., at 325-326, 336, 340, 87 S.Ct., 1834-1835, 1840, 1842.

This case, therefore, is a far cry from Cox v. New Hampshire, supra, where it could be said that there was *159 nothing to show ‘that the statute has been administered otherwise than in the * * * manner which the state court has construed it to require.’ Here, by contrast, it is evident that the ordinance was administered so as, in the words of Chief Justice Hughes, ‘to deny or unwarrantedly abridge the right of assembly and the opportunities for the communication of thought * * * immemorially associated with resort to public places.’ The judgment is reversed.

Reversed. Mr. Justice BLACK concurs in the result.

Mr. Justice MARSHALL took no part in the consideration or decision of this case.

Mr. Justice HARLAN, concurring.

The Alabama Supreme Court's opinion makes it clear that if petitioner Shuttlesworth had carried his efforts to obtain a parade permit to the highest state court, he could have required the city authorities to grant permission for his march, so long as his proposals were consistent with Birmingham's interest in traffic control. Thus, the difficult question this case presents is whether the Fourteenth Amendment ever bars a State from punishing a citizen for marching without a permit which could have been procured if all available remedies had been pursued.

The Court answers that a citizen is entitled to rely on the statutory construction adopted by the state officials who are on the front line, administering the permit scheme. If these officials construe a vague statute unconstitutionally, the citizen may take them at their word, and act on the assumption that the statute is void. The Court's holding seems to me to carry seeds of mischief that may impair the conceded ability of the authorities to regulate the use of public thoroughfares in the interests of *160 all. The right to ignore a permit requirement should, in my view, be made to turn on something more substantial than a minor official's view of his authority under the governing statute.

Simply because an inferior state official indicates his view as to a statute's scope, it does not follow that the State's judiciary will come to the same conclusion. Situations do exist, however, in which there can be no effective review of the decision of an inferior state official. In the present case, for example, the decision of Commissioner Connor had the practical effect of the decision of a court of last resort. One week before the Good Friday march, Shuttlesworth learned from Connor that he, as Commissioner of Public Safety, would not issue parade permits, and that the marchers would have to apply to the entire City Commission.FN1 But Birmingham's ordinances **944 did not require a prompt decision by *161 the City Commission.FN2 Nor did the State of Alabama provide for a speedy court review of the denial of a parade permit. FN3

FN1. I agree with any Brother STEWART that we may properly take judicial notice of the evidence of record in Walker v. City of Birmingham, 388 U.S. 307, 87 S.Ct. 1824, 18 L.Ed.2d 1210 (1967). See 9 J. Wigmore, Evidence s 2579, at 570 (3d ed. 1940); Butler v. Eaton, 141 U.S. 240, 11 S.Ct. 985, 35 L.Ed. 713 (1891); Craemer v. Washington, 168 U.S. 124, 18 S.Ct. 1, 42 L.Ed. 407 (1897). That record shows that in response to a request for permission to march on April 5 and 6, Mr. Connor replied by telegram on April 5:‘Under the provisions of the city code of the City of Birmingham, a permit to picket as requested by you cannot be granted by me individually but is the responsiboity (sic) of the entire commission. I insist that you and your people do not start any picketing on the streets in Birmingham, Alabama.‘Eugene ‘Bill’ Connor, Commissioner of Public Safety.'See Walker v. Birmingham, No. 249, October Term, 1966, Transcript of Record 415. Mr. Connor's telegram was received in evidence at trial. See Transcript, supra, at 350.I do not, however, find it appropriate to rely upon the slightly earlier episode detailed in my Brother STEWART'S opinion, ante, at 942, as the trial judge ruled the uncontradicted supporting testimony inadmissible. See Transcript, supra, at 355.

FN2. Section 1159 does not require the City Commission to act on an application within any fixed amount of time. Indeed, by the time Connor definitively declared that he could not issue parade permits, it is not all clear that petitioner could even have made a timely permit application to the City Commission at its only remaining regular session set before the scheduled Good Friday march. See General City Code of Birmingham s 21 (1944). While the 1964 City Code makes it clear that petitioner's permit application would have been considered out of time, see s 2-10, the 1944 Code, which was applicable in 1963, is not clear on this point. FN3. Although Shuttlesworth could have petitioned for a writ of mandamus in the Alabama Circuit Court if the City Commission denied his application, that state court is not obliged to render a decision within any fixed period of time.

Given the absence of speedy procedures, the Reverend Shuttlesworth and his associates were faced with a serious dilemma when they received their notice from Mr. Connor. If they attempted to exhaust the administrative and judicial remedies provided by Alabama law, it was almost certain that no effective relief could be obtained by Good Friday. Since the right to engage in peaceful and orderly political demonstrations is, under appropriate conditions, a fundamental aspect of the ‘liberty’ protected by the Fourteenth Amendment, see Stromberg v. California, 283 U.S. 359, 368-370, 51 S.Ct. 532, 535-536, 75 L.Ed. 1117 (1931); Hague v. C.I.O., 307 U.S. 496, 515-516, 59 S.Ct. 954, 963-964, 83 L.Ed. 1423 (1939) (opinion of Roberts, J.); Garner v. Louisiana, 368 U.S. 157, 201-203, 82 S.Ct. 248, 271-272, 7 L.Ed.2d 207 (1961) (opinion of Harlan, J.), the petitioner was not obliged to invoke procedures which could not give him effective relief. With fundamental rights at stake, he was entitled to adopt the more probable meaning of the ordinance and act on his belief that the city's permit regulations were unconstitutional.

*162 It may be suggested, however, that Shuttlesworth's dilemma was of his own making. He could have requested a permit months in advance of Good Friday, thereby allowing Alabama's administrative and judicial machinery the necessary time to operate fully before the date set for the march. But such a suggestion ignores the principle established. in Freedman v. Maryland, 380 U.S. 51, 58-61, 85 S.Ct. 734, 738-741, 13 L.Ed.2d 649 (1965), which prohibits the States from requiring persons to invoke unduly cumbersome and time-consuming procedures before they may exercise their constitutional right of expression. Freedman holds that if the State is to protect the public from obscene movies, it must afford exhibitors a speedy administrative or judicial right of review, lest ‘the victorious exhibitor might find the most propitious opportunity for exhibition (passed).’ Id., at 61, 85 S.Ct., at 740. The Freedman principle is applicable here.FN4 The right to assemble peaceably **945 to voice political protest is at least as basic as the right to exhibit a motion picture which may have some aesthetic value. Moreover, slow-moving procedures have a much more severe impact in the instant case *163 than they had in Freedman. Though a movie exhibitor might suffer some financial loss if he were obliged to wait for a year or two while the administrative and judicial mills ground out a result, it is nevertheless quite likely that the public would ultimately see the film. In contrast, timing is of the essence in politics. It is almost impossible to predict the political future; and when an event occurs, it is often necessary to have one's voice heard promptly, if it is to be considered at all. To require Shuttlesworth to submit his parade permit application months in advance would place a severe burden upon the exercise of his constitutionally protected rights. Cf. William v. Rhodes, 393 U.S. 23, 33, 89 S.Ct. 5, 11, 21 L.Ed.2d 24 (1968).

FN4. None of our past decisions have squarely considered whether parade licenses must be handled on an expedited basis. In Cox v. New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049 (1941), the question was not argued. In Poulos v. New Hampshire, 345 U.S. 395, 73 S.Ct. 760, 97 L.Ed. 1105 (1953), Poulos' request for a permit to conduct religious services in a public park was refused by the Portsmouth City Council seven and one-half weeks before the first scheduled event. Since the time remaining was sufficient to obtain relief by way of mandamus, see 345 U.S., at 419-420, 73 S.Ct., at 773-774 (opinion of Mr. Justice Frankfurter), there was no need to consider whether the State had a constitutional obligation to provide a more rapid procedure. And, of course, those cases which struck down regulatory schemes which purported to issue licenses on the basis of unconstitutional standards did not reach the question presented here. See, e.g., Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949 (1938); Schneider v. State, 308 U.S. 147, 163-165, 60 S.Ct. 146, 151-152, 84 L.Ed. 155 (1939); Largent v. Texas, 318 U.S. 418, 63 S.Ct. 667, 87 L.Ed. 873 (1943); Staub v. City of Baxley, 355 U.S. 313, 78 S.Ct. 277, 2 L.Ed.2d 302 (1958).

I do not mean to suggest that a State or city may not reasonably require that parade permit applications be submitted early enough to allow the authorities and the judiciary to determine whether the parade proposal is consistent with the important interests respecting the use of the streets which local authority may legitimately protect. But such applications must be handled on an expedited basis so that rights of political expression will not be lost in a maze of cumbersome and slow-moving procedures.

Neither the city of Birmingham nor the State of Alabama has established such expedited procedures. See nn. 2 and 3, supra. Indeed, the city's parade ordinance does not establish any procedure at all to govern the consideration of applications. Section 1159 of the City Code does not state when an application must be submitted if it is to be considered timely. The ordinance does not state how an application is to be submitted to the ‘City Commission.’ FN5 Nor have *164 regulations been published which would answer these questions. FN6

FN5. It would be most remarkable if every parade application involving the march of 52 persons is considered in a plenary manner by the principal government body of a city so large as Birmingham. In fact, an offer of proof was made in the Walker proceedings that the City Commission had never passed on permit applications in the past, but had delegated the task to inferior officials. See Transcript, supra, n. 1, at 290. The proof was not admitted on the ground that it was irrelevant. Ibid.

FN6. At the trial in Walker v. City of Birmingham, the City Clerk, who kept records of the parade permits that had been granted, stated that no regulations had been issued to fill in the gaps left by the Ordinance. See Transcript, supra, n. 1, at 286.

In the absence of any guidelines, the most that can fairly be asked of petitioner is that he make a good-faith effort to obtain a permit from the city authorities. Shuttlesworth so acted when he approached the city official most likely to have the authority to deal with permit applications in an expedited manner-Commissioner Connor was the member of the City Commission in charge of public safety. It was Connor, not Shuttlesworth, who broke off all discussions **946 relating to the issuance of permits. After the Commissioner declared that he lacked the power to act, it was reasonable to believe that no public authority would act in time. Since neither the city nor the State provided sufficiently expedited procedures for the consideration of parade permits, petitioner Shuttlesworth cannot be punished for the exercise of his constitutionally protected right of political expression.FN7

FN7. I do not reach the question whether the principle followed in such cases as Lovell, Schneider, Largent, and Staub, see n. 4, supra, allowing persons to ignore entirely licensing schemes which unconstitutionally impinge on other forms of free expression, should be extended to cover ‘parade’ permit statutes involving, as they do, a particularly important state interest.

On this basis I concur in the reversal of the judgment of the Alabama Supreme Court.

U.S.Ala. 1969. Shuttlesworth v. City of Birmingham, Ala., 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 APPLICATION FOR PARADE PERMIT O.C.D.P.P. No. PD 637-041 (Rev. 06-07) DATE OF APPLICATION TYPE OR PRINT LEGIBLY APPLICANT’S NAME RESIDENCE ADDRESS PHONE NO.

STATE NAME AND ADDRESS OF CORPORATION, ORGANIZATION OR RELATIONSHIP OF APPLICANT TO CORPORATION, ASSOCIATION THAT APPLICATION IS MADE ON BEHALF OF ORGANIZATION OR ASSOCIATION

CHARACTER OF ORGANIZATION (SOCIAL, POLITICAL, ETC.) INCORPORATED WHERE?

YES NO DATE OF INCORPORATION TOTAL MEMBERSHIP TOTAL PARTICIPANTS IN EVENT

HAS ORGANIZATION FILED WITH THE SECRETARY OF STATE A SWORN COPY OF ITS Yes IF YES, DATE CONSTITUTION AND OTHER DOCUMENTS REQUIRED BY SEC. 53, CIVIL RIGHTS LAW. No

AS A REPRESENTATIVE OF THE ABOVE-MENTIONED CORPORATION, ORGANIZATION OR ASSOCIATION, I STATE THAT THE SOURCE OF MY AUTHORITY TO SIGN THIS APPLICATION IS AS FOLLOWS:

DATE: BOROUGH EXACT LOCATION OF FORMATION AREA APPROXIMATE PARADE START TIME: FORMATION TIME: DAY OF WEEK: DESCRIBE PARADE ROUTE: (Include The Width Or Number of Lanes Of All Roadways To Be Occupied By Parade)

EXACT LOCATION OF DISMISSAL AREA APPROXIMATE DISMISSAL TIME: LOCATION OF REVIEWING STAND, IF ANY

DESCRIPTION OF VEHICLES AND/OR ANIMALS TO BE INCLUDED IN THE PARADE

DESCRIPTION OF UNIFORM OR EQUIPMENT TO BE USED BY PARADERS

WILL RIFLES OR IF YES, INDICATE QUANTITY AND TYPE: SHOTGUNS BE CARRIED YES NO WILL RIFLES OR SHOTGUNS BE IF YES, INDICATE LOCATION AND PURPOSE: FIRED FOR CEREMONIAL PURPOSES YES NO NATURE OF PARADE

NAME OF GRAND MARSHAL OR CHIEF OFFICER OF PARADE OR RACE ADDRESS PHONE NO.

MEETINGS, IF ANY, TO BE HELD IN CONNECTION WITH PARADE OR RACE, EITHER BEFORE OR AFTER

CITY OF NEW YORK, ss.:

COUNTY OF ______

______BEING DULY SWORN, DEPOSES AND SAYS THAT ALL OF THE ANSWERS TO THE FOREGOING QUESTIONS ARE TRUE

Penalty For Falsifications: Falsification of Any Statement Made Herein ______Is an Offense Punishable by a Fine or Imprisonment or Both SIGNATURE OF APPLICANT (NYC Administrative Code, Section 10-154).

SWORN TO BEFORE ME THIS______DAY OF______20______(NOTARY PUBLIC OR COMMISSIONER OF DEEDS)

INSTRUCTIONS: PREPARE ______COPIES. ANSWER ALL QUESTIONS AND SIGN ALL COPIES. NOTARIZE ORIGINAL COPY ONLY.

ON REVERSE SIDE OF THIS APPLICATION: 1. List Titles, Names and Addresses of National, State and Local 2. List Names and Addresses of All Officers Who Will Officers of Sponsoring Organization. Participate in This Procession, Parade or Race.

NOTE: Each Organization or Society Desiring to Participate in a Parade Must Obtain a Permit From The Police Commissioner.

No Parades are Permitted on Sunday Before 2:00 P.M., Except as Specified in SECTION 14 OF THE GENERAL BUSINESS LAW.

26 Misc.3d 42, 894 N.Y.S.2d 318, 2010 N.Y. Slip Op. 20000

View New York Official Reports version

Judges and Attorneys Supreme Court, Appellate Term, New York. First Department. The PEOPLE of the State of New York, Respondent, v. Jonathan BECK, Rebecca Heinegg, Thomas Melchor, Christopher Ryan, Caroline Samponaro, Mark Taylor, and Blue Young, Defendants–Appellants.

Jan. 4, 2010.

Background: Following nonjury trial, defendants were convicted in the Criminal Court of the City of New York, New York County, Herbert J. Adlerberg, JHO, of disorderly conduct and parading without a permit. Defendants appealed.

Holdings: The Supreme Court, Appellate Term, held that: (1) permit law under which defendants were convicted was unconstitutionally overbroad, but (2) evidence was sufficient to support disorderly conduct convictions.

Affirmed as modified.

City's permit law under which defendants were convicted for parading without a permit, which defined parade as “any march, motorcade, caravan, promenade, foot or bicycle race, or similar event of any kind, upon any public street or roadway,” applied to essentially any group of people moving on a public street, including small groups, and as such was overbroad, in violation of the First Amendment; law burdened substantially more speech and expressive conduct than was necessary to further the city's legitimate interests in crowd and traffic control, and it afforded the city, acting through the police commissioner, unduly broad discretion in determining whether a particular event required a permit. U.S.C.A. Const.Amend. 1.

Evidence was legally sufficient to establish defendants' guilt of disorderly conduct for obstructing vehicular or pedestrian traffic, where defendants were riding or walking with their bicycles on public streets with scores of other cyclists. McKinney's Penal Law § 240.20(5).

**318 Cyrus R. Vance, Jr., District Attorney, New York City (Eric Rosen and Susan Gliner of counsel), for respondent.

Page 1 of 4 Oliver & Oliver, New York City (Gideon O. Oliver of counsel), for appellants.

Present McKEON, P.J., HEITLER, J.

**319 PER CURIAM. *43 Judgments of conviction (Herbert J. Adlerberg, JHO), rendered January 19, 2006, modified, on the law, to the extent of vacating the convictions of parading without a permit and dismissing that charge as to each defendant, and otherwise affirmed.

In the early evening of February 25, 2005, a “Critical Mass” bicycle ride ( see Five Borough Bicycle Club v. City of New York, 483 F.Supp.2d 351 [S.D.N.Y.2007]; Bray v. City of New York, 346 F.Supp.2d 480 [S.D.N.Y.2004] ), which attracted approximately 150 participants, commenced from Union Square. The participants cycled out of Union Square Park en mass and on to public streets adjacent to the park. Each of the defendants was arrested in the vicinity of Union Square and charged with disorderly conduct and parading without a permit (Administrative Code of City of N.Y. § 10–110). At the time of their respective arrests, defendants were riding (or walking with) their bicycles on public streets with scores of other cyclists. Following a nonjury trial, each defendant was convicted of disorderly conduct (Penal Law § 240.20[5] [obstruction of vehicular or pedestrian traffic] ) and parading without a permit (Administrative Code § 10–110[c] ).

With respect to their convictions of parading without a permit, defendants argue, among other things, that the version of the parade permit law under which they were convicted is unconstitutional on its face because it failed to adequately define those events that required a permit. In light of this infirmity, defendants assert, the City possessed unfettered discretion in determining the events to which the law applied and that the law was therefore overbroad. We agree, and vacate the convictions of parading without a permit and dismiss those charges.

The parade permit law comprises two components: Administrative Code § 10–110 and title 38, chapter 19 of the Rules of the *44 City of New York ( see Five Borough Bicycle Club, 483 F.Supp.2d at 357–359; People v. Bezjak, 11 Misc.3d 424, 430, 812 N.Y.S.2d 829 [2006]; see also Ward v. Rock Against Racism, 491 U.S. 781, 795–796, 109 S.Ct. 2746, 105 L.Ed.2d 661 [1989] ). Administrative Code § 10–110(a) states, in relevant part, that “[a] procession, parade, or race shall be permitted upon any street or in any public place only after a written permit therefor has been obtained from the police commissioner.” At the time defendants were arrested and convicted, section 19–02 of title 38 of the Rules of the City of New York (38 RCNY 19–02) defined a “parade or procession” as “any march, motorcade, caravan, promenade, foot or bicycle race, or similar event of any kind, upon any public street or roadway.” FN1

FN1. Section 19–02 was subsequently amended, effective February 25, 2007, to define a “parade” as “any procession or race which consists of a recognizable group of 50 or more pedestrians, vehicles, bicycles, or other devices moved by human power, or ridden or herded animals proceeding together upon any public street or roadway” ( see Five Borough Bicycle Club, 483 F.Supp.2d at 358–359). No issue regarding the constitutionality of the amended parade permit law is before us on

Page 2 of 4 this appeal.

[1] As is clear from the plain language of Administrative Code § 10–110 and 38 RCNY 19–02, the prior version of the permit law applied to essentially any group of people moving on a public street, including small groups. The permit law under which defendants were convicted is therefore overbroad, since it burdens substantially more speech and expressive conduct than is necessary to further the City's legitimate interests in crowd and traffic control ( see **320 Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1038–1042 [2006]; American–Arab Anti–Discrimination Comm. v. City of Dearborn, 418 F.3d 600, 608 [2005]; Cox v. City of Charleston, 416 F.3d 281, 284–287 [2005]; see generally Ward v. Rock Against Racism, 491 U.S. at 799, 109 S.Ct. 2746). That the City, in practice, may not have required permits for “parades” and “processions” involving small groups is immaterial; a court cannot presume that the official responsible for issuing permits will act in good faith and adhere to standards absent from the face of the permit law ( see City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 770, 108 S.Ct. 2138, 100 L.Ed.2d 771 [1988] ). Relatedly, the permit law under which defendants were convicted afforded the City, acting through the police commissioner, unduly broad discretion in determining whether a particular event required a permit ( see Forsyth County, Ga. v. Nationalist Movement, 505 U.S. 123, 130–133, 112 S.Ct. 2395, 120 L.Ed.2d 101 [1992]; City of Lakewood, 486 U.S. at 757, 108 S.Ct. 2138; see also Shuttlesworth v. City of Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 [1969]; cf. Thomas v. Chicago Park Dist., 534 U.S. 316, 122 S.Ct. 775, 151 L.Ed.2d 783 [2002] ). *45 Accordingly, defendants' convictions of parading without a permit cannot stand.

[2] Turning to defendants' convictions of disorderly conduct, we reject their constitutional challenges to Penal Law § 240.20(5) ( see People v. Tichenor, 89 N.Y.2d 769, 658 N.Y.S.2d 233, 680 N.E.2d 606 [1997]; see also Cameron v. Johnson, 390 U.S. 611, 617, 88 S.Ct. 1335, 20 L.Ed.2d 182 [1968]; Cox v. State of Louisiana, 379 U.S. 536, 553–556, 85 S.Ct. 453, 13 L.Ed.2d 471 [1965]; Cantwell v. Connecticut, 310 U.S. 296, 308, 60 S.Ct. 900, 84 L.Ed. 1213 [1940] ). Moreover, we find that the evidence, viewed in the light most favorable to the People, was legally sufficient to establish defendants' guilt of disorderly conduct ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), and that the portion of the verdict convicting defendants of that offense was not against the weight of the evidence ( see id. at 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1; People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 [2006] ).

Defendants' argument that the People failed to disclose certain police communications ( see Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 [1963]; People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881 [1961] ) is unpreserved ( see People v. Rogelio, 79 N.Y.2d 843, 580 N.Y.S.2d 185, 588 N.E.2d 83 [1992]; People v. Pines, 298 A.D.2d 179, 748 N.Y.S.2d 716 [2002] ). As an alternative holding, we find that defendants' claim is unreviewable on the existing record, since defendants forfeited the opportunity to develop a factual basis for their claim that the police communications constituted Brady or Rosario material ( see People v. Ligon, 66 A.D.3d 516, 887 N.Y.S.2d 60 [2009]; People v. Lorenzo, 272 A.D.2d 184, 708 N.Y.S.2d 859 [2000] ). We have considered and rejected defendants' conclusory challenge to the facial sufficiency of the accusatory

Page 3 of 4 instruments.

This constitutes the decision and order of the Court.

N.Y.Sup.App.Term,2010. People v. Beck 26 Misc.3d 42, 894 N.Y.S.2d 318, 2010 N.Y. Slip Op. 20000

Page 4 of 4 New York City, N.Y., Code § 10-110

NEW YORK CITY CHARTER, CODE, AMENDMENTS & RULES NEW YORK CITY ADMINISTRATIVE CODE TITLE 10. PUBLIC SAFETY CHAPTER 1. PUBLIC SAFETY.

Currency up to Local Law 40 of 2012 and Chapters 1 - 447 of the Laws of the State of New York for 2012

§ 10-110. Processions and parades. a. Permits. A procession, parade, or race shall be permitted upon any street or in any public place only after a written permit therefor has been obtained from the police commissioner. Application for such permit shall be made in writing, upon a suitable form prescribed and furnished by the department, not less than thirty-six hours previous to the forming or marching of such procession, parade or race. The commissioner shall, after due investigation of such application, grant such permit subject to the following restrictions: 1. It shall be unlawful for the police commissioner to grant a permit where the commissioner has good reason to believe that the proposed procession, parade or race will be disorderly in character or tend to disturb the public peace; 2. It shall be unlawful for the police commissioner to grant a permit for the use of any street or any public place, or material portion thereof, which is ordinarily subject to great congestion or traffic and is chiefly of a business or mercantile character, except, upon loyalty day, or upon those holidays or Sundays when places of business along the route proposed are closed, or on other days between the hours of six thirty post meridian and nine ante meridian; 3. Each such permit shall designate specifically the route through which the procession, parade or race shall move, and it may also specify the width of the roadway to be used, and may include such rules and regulations as the police commissioner may deem necessary; 4. Special permits for occasions of extraordinary public interest, not annual or customary, or not so intended to be, may be granted by the commissioner for any street or public place, and for any day or hour, with the written approval of the mayor; 5. The chief officer of any procession, parade or race, for which a permit may be granted by the police commissioner, shall be responsible for the strict observance of all rules and regulations included in said permit. b. Exemptions. This section shall not apply:

Page 1 of 4 1. To the ordinary and necessary movements of the United States army, United States navy, national guard, police department and fire department; or 2. To such portion of any street as may have already been, or may hereafter be duly, set aside as a speedway; or 3. To processions or parades which have marched annually upon the streets for more than ten years, previous to July seventh, nineteen hundred fourteen. c. Violations. Every person participating in any procession, parade or race, for which a permit has not been issued when required by this section, shall, upon conviction thereof, be punished by a fine of not more than twenty-five dollars, or by imprisonment for not exceeding ten days, or by both such fine and imprisonment.

HISTORICAL NOTE

Section added chap 907/1985 § 1

Subd. c amended L.L. 76/1995 § 1, eff. Sept. 28, 1995. Amendment expires and is repealed May 1, 1996, as per L.L. 21/1996, subd. reverts to previous language

DERIVATION

Formerly § 435-9.0 added chap 929/1937 § 1

Sub 2 amended LL 11/1958 § 1

CASE NOTES FROM FORMER SECTION

¶ 1. Under Admin. Code § 435-9.0, Police Commissioner held without power to grant a permit to the United Labor and People's May Day Committee to parade on Eighth Avenue between 39th and 17th Streets, on Friday, May 1, between 2:30 and 8:00 o'clock P.M., since Eighth Avenue between 39th and 17th Streets is ordinarily subject to great congestion and is chiefly of a business or mercantile character, and the parade was not one which marched annually upon the streets more than ten years previous to July 7, 1914. That there have been May Day parades in New York and elsewhere in this country since 1890 was insufficient to bring the parade within the statutory exemption.--George Kern, Inc. v. Monaghan, 129 (80) N.Y.L.J. (4-27-53) 1390, Col. 7 T.

¶ 2. The granting of a permit to the Federation of Hispanic Societies for a parade to be held on a Sunday was not arbitrary. Evidence showed that the Commissioner had made a thorough investigation prior to the granting of the permit and there was no reason to believe that the parade would be disorderly or unlawful.--Matter of Colon, 139 (75) N.Y.L.J. (4-17-58) 6, Col. 5 M.

Page 2 of 4 CASE NOTES

¶ 1. A challenge to the constitutionality of the permit law is now pending. The plaintiffs represent an organization known as the Million Marijuana March, which is dedicated to the legalization of marijuana for medicinal purposes. Plaintiffs allege that the law gives the Police Commissioner an overly broad discretion as to whether or not to grant a permit, and that the mechanism for judicial review is inadequate. The Second Circuit remanded the case to the District Court, and declined to determine the issues as a matter of law. However, the court made certain important threshold determinations. One was that the statute provided for prior restraint on speech, and thus was subject to stringent constitutional standards. Moreover, the court held that the plaintiff had standing to challenge that portion of law that allowed for waiver of restrictions for occasions of “extraordinary public interest (Adm Code. 10-110(a)(4)), under which (allegedly) politically popular organizations had obtained permits. McDonald v. Safir, 206 F.3d 183 (2d Cir. 2000).

¶ 2. No permit is necessary for a group to gather and demonstrate on a city sidewalk, so long as no sound amplification is issued and the demonstration does not involve a parade or procession. Metropolitan Council on Housing v. Safir, N.Y.L.J., June 14, 2000, page 40, col. 5 (U.S. Dist.Ct. S.D.N.Y.).

¶ 3. An accusatory instrument which charges a violation of this statute must set forth the following elements: (1) that the person was part of a parade, procession or race; (2) that such parade, procession or race took place upon a public street or roadway; and (3) that the person did not have a permit issued by the Police Commissioner to participate in such parade, procession or race. The accusatory instrument was sufficient, where it alleged that the officer observed the defendant walking with over 100 other persons on a public street and that defendant did not have a permit. People v. James, 7 Misc.3d 363, 793 N.Y.S.2d 871 (Crim.Ct. New York Co.).

¶ 4. In one case, an accusatory instrument stated that the officer observed the defendant on a bicycle in the street among numerous other people also on bicycles, but does not state that defendant did not have a parade permit at the time she engaged in the conduct in question. The court held that the accusatory instrument failed to establish a key element of the statute and therefore failed to establish a prima facie case. Thus, the court dismissed the charges. See also, People v. Cohen, 6 Misc.3d 1019(A), 2005 WL 293510, N.Y.L.J., Feb. 17, 2005, at 19, col. 1 (Crim.Ct. New York Co.).

¶ 5. The ordinance was found to be content neutral, and thus did not constitute a violation of the free speech clauses of the state or federal Constitution. People v. James, 7 Misc.3d 363, 793 N.Y.S.2d 871 (Crim.Ct. New York Co.). See also, People v. Cohen, 6 Misc.3d 1019(A), 2005 WL 293510,

Page 3 of 4 N.Y.L.J., Feb. 17, 2005, at 19, col. 1 (Crim.Ct. New York Co.).

¶ 6. An accusatory instrument under the statute must specify the particular illegal actions taken by the defendant. It is not sufficient to state merely that defendant happened to be present in the area when a group of persons were arrested for violating the law. People v. Munoz, N.Y.L.J., May 4, 2004, at 27, col. 1 (Crim.Ct. New York Co.).

¶ 7. A large group of people marching on the sidewalk could be deemed a “procession” for purposes of the restrictions contained in this section. Allen v. City of New York, 2007 WL 24796 (U.S. Dist. Ct. E.D.N.Y.).

NYC Code § 10-110

Page 4 of 4 9 NYCRR 300-1.2

N.Y. Comp. Codes R. & Regs. tit. 9, § 300-1.2

Title 9. Executive Department Subtitle G. Office of General Services Chapter IV. Facilities Planning and Operation Subchapter A. Division of Building Administration Part 300. Facility Use Subpart 300-1. General (Refs & Annos) Section 300-1.2. Definition of terms

(m) Public assembly shall mean any public meetings, demonstrations, parades, gatherings or other public expression of views where 20 or more persons outdoors or 10 or more persons indoors may reasonably be expected to be in attendance in public spaces.

(n) Public space shall mean those areas generally open to use by the public including parks and grounds of buildings, entrances, lobbies, foyers, corridors, and when used for public meetings, meeting rooms and auditoriums and such other State facilities as may be designated from time to time by the commissioner.

Section 300-3.1. Prohibited activities

The activities and uses enumerated in this section shall be prohibited on all State property.

(a) Littering. No person shall litter. All persons shall use receptacles provided for the disposal of refuse. No person shall deposit household or commercial refuse on State property.

(b) Destruction or abuse of property or equipment. No person shall injure, deface, alter, write upon, destroy, remove or tamper with in any way, any real or personal property or equipment including, without limitation, vegetation, owned by, or under the jurisdiction of, the office.

(c) Failure to comply with directions. No person shall fail to comply with a lawful order of any police officer, security guard, or authorized employee of the office or the direction of any sign erected by or at the direction of the office.

(d) Disorderly behavior. A person who commits any of the following actions shall be deemed to be engaging in disorderly behavior in violation of these rules when such person:

(1) engages in a course of conduct or commits acts that unreasonably alarm or seriously annoy another person;

(2) throws stones, other objects or missiles which may inflict bodily injury or damage to persons or property; (3) obstructs vehicular or pedestrian traffic;

(4) climbs upon any wall, fence, structure or monument;

(5) engages in or encourages fighting or violent or threatening behavior;

(6) engages in a course of conduct or commits acts that endangers the safety of others or creates an unreasonable risk of damage to real or personal property;

(7) deposits bodily wastes upon grounds or other surfaces;

(8) except if authorized by a permit pursuant to section 300-2.2(d) of this Part, makes or causes noise at a rate of over 95 decibels outdoors or 90 decibels indoors for an unreasonable period of time;

(9) throws away or discards any lighted match, cigar, cigarette, charcoal or other burning object other than in a receptacle provided for that purpose;

(10) operates any wheeled vehicle, snowmobile, or other equipment in such a manner as to endanger other persons or property or in such a manner so as to create an unreasonable noise or disturbance;

(11) swims or wades in any pool or fountain.

(e) Loitering for illegal purposes. A person shall be guilty of loitering for illegal purposes in violation of these rules when such person:

(1) loiters or remains on any State property for the purpose of engaging or soliciting another person to engage in sexual activity; or

(2) loiters or remains on any State property for the purpose of unlawfully using, possessing, purchasing, distributing, selling or soliciting marijuana, alcohol or any controlled substance as defined in section 220.00 of the New York State Penal Law.

(f) Avoiding charges. No person shall enter upon or use any State property without having paid any applicable charge or fee.

(g) Property closed to public. No person shall, without authorization, enter or remain upon any State property or within any structure during such times when such property or structure has been designated as closed by a sign or by the commissioner.

(h) Use of escalators and stairways. No person shall use an escalator or stairway for other than its intended purpose. No person shall walk or run on an escalator in the opposite direction of its rotation. No person shall ride a bicycle, scooter, operate a vehicle, skateboard, roller-blade, or roller-skate upon any escalator or stairway. No person shall bring a cart or baby stroller or baby carriage upon any escalator or stairway.

(i) Minors. No person having custody or control of a minor shall permit such minor to do any act in violation of a rule or regulation of the office. Minors under 14 years of age shall at all times while on State property be under the supervision and control of a parent, guardian or responsible custodian.

(j) Hitchhiking. No person shall solicit a ride or hitchhike on State property. No person shall pick up a hitchhiker on State property.

(k) Animals. No person shall introduce or possess any animals within a State facility except for Service Animals and police and fire dogs under the control of their handler, without authorization from the commissioner. No person shall abandon an animal on State property.

(l) Firearms and deadly weapons.

(1) No person shall introduce, use, or possess a firearm or deadly weapon on State property without authorization from the commissioner or State Police except:

(i) Federal, State, county and municipal police officers and armed couriers on official business, properly licensed to carry a firearm.

(ii) Off-duty Federal, State, county and municipal police officers provided the firearm is concealed and the officer is properly licensed and authorized to carry a firearm while off duty. With respect only to the Empire State Plaza, such off duty police officers who carry a firearm or deadly weapon that cannot be concealed must secure such firearm or deadly weapon at the Concourse State Police station for the duration of their visit. Firearms or deadly weapons incapable of being concealed are prohibited on all other State property.

(2) The commissioner reserves the right to inspect any packages or containers that reasonably appear capable of housing or enclosing a firearm or deadly weapon.

(3) Any firearms lawfully possessed and being brought on State property for an authorized gun show/sale or display must be unloaded and transported in a carrying case to and from the actual place of show/sale or display.

(m) Restrooms. No person shall use any restroom on State property or any fixture or equipment therein for other than its intended purpose. Prohibited activities include, but are not limited to, bathing, washing clothes or sleeping.

(n) Smoking. No person shall smoke in any area, building or portion of a building, structure or portion of a structure, on State property where signs are in place advising that smoking is prohibited at such location.

(o) Fire protection equipment. No person shall tamper with fire protection equipment on State property.

(p) Open fires. Open fires are prohibited on State property, without authorization from the commissioner.

(q) Running or jogging. No person shall run or jog in the interior area of a building on State property including, but not limited to, the concourse level of the Empire State Plaza unless authorized by the commissioner.

(r) Camping. No person shall engage in camping, or erect or maintain a tent, shelter, or structure on State property either individually or as part of a public assembly. Structures erected by the office as part of State property or as part of a temporary exhibition in connection with an authorized special event are exempt from this prohibition.

(s) Skateboarding, roller-skating, roller-blading or bicycling. No person shall skateboard, roller-skate, roller-blade, bicycle or operate a scooter on State property in other than designated areas and in compliance with all applicable helmet laws. In all other areas, these activities are prohibited. No person shall skateboard, roller-skate, roller-blade, bicycle or operate a scooter in a manner, which is unreasonable for the existing conditions or which endangers the safety of persons (including themselves) or property. Stunt riding and trick riding are hereby deemed to be inherently dangerous and are prohibited.

(t) Employee/vendor identification cards.

(1) No person shall convey or loan their New York State employee/vendor identification card to another person for the purpose of allowing said person(s) to gain unauthorized entry onto State property.

(2) Any person found to be in possession of a New York State employee/vendor identification card who is unauthorized to carry such card shall be subject to prosecution under the provisions of article 165 of the Penal Law of the State of New York, or any successor provisions thereof or any other applicable provisions of the Penal Law.

(3) All lost or stolen New York State employee/vendor identification cards shall be immediately reported to the Office of Access Control and ID Card Administration, Plaza Manager's Office, Room 130, Empire State Plaza, Albany, NY 12242.

(4) Upon separation from State service or termination of contractual services, the New York State employee/vendor identification card shall be surrendered to the issuing agent. Failure to do so may result in criminal prosecution as set forth in paragraph (2) of this subdivision.

Sec. filed April 8, 2003 eff. April 23, 2003; amds. filed Dec. 3, 2010 eff. Dec. 22, 2010.

9 NYCRR 300-3.1, 9 NY ADC 300-3.1 438 99 FEDERAL SUPPLEMENT, 2d SERIES

for sleeping on public sidewalks, where METROPOLITAN COUNCIL, proposed rent increase was announced on INC., Plaintiff, May 8, and was slated for debate at a v. previously scheduled June 15 hearing. U.S.C.A. Const.Amend. 1. Howard SAFIR, Commissioner of the New York City Police Department; 3. Civil Rights O268 Henry Stern, Commissioner of the Tenants’ advocacy organization’s ap- New York City Parks Department; plication for preliminary injunction pre- and the City of New York, Defen- venting city from interfering with its plan dants. to engage in what it considered expressive No. 00 Civ. 4254(KMW). activity by lying and sleeping on a city sidewalk was one for a prohibitory injunc- United States District Court, tion that would stay governmental action S.D. New York. taken in the public interest pursuant to a June 12, 2000. statutory or regulatory scheme, and therefore showing of clear or substantial likelihood of success was not required, only Tenants’ advocacy organization, which showing of irreparable harm in the ab- planned large, publicized protest of rent sence of an injunction and a likelihood of increases for rent-regulated apartments by success on the merits; the injunction, al- staging vigil during which protesters though not permitting the vigil to be un- would lie and sleep on a city sidewalk near done, would leave open the preferred form mayor’s residence, sought preliminary in- of relief against violations of laws limiting junction prohibiting city from enforcing its speech. U.S.C.A. Const.Amend. 1. policy against lying and sleeping on public sidewalks. The District Court, Kimba M. 4. Injunction O9 Wood, J., held that city’s application of its Showing of clear or substantial likeli- policy to the vigil was likely not permissi- hood of success is inappropriate where in- ble under First Amendment and injunction junction sought is prohibitory in nature; would be limited to preventing a prior such a heightened standard is appropriate restraint on speech and leave city free to when injunction sought is mandatory in pursue criminal proceedings after the pro- nature. test. 5. Civil Rights O268 Motion granted. Tenants’ advocacy organization, which planned large, publicized protest of rent 1. Equity O67 increases for rent-regulated apartments by Laches is an equitable doctrine ap- staging press conference and subsequent plied to deny relief in the court’s discretion vigil during which protesters would lie and when it is clear that a plaintiff unreason- sleep on a city sidewalk near mayor’s resi- ably delayed in initiating an action and a dence in order to symbolically convey the defendant was prejudiced by the delay. homelessness which it contended would be caused if the proposed rent increases were 2. Civil Rights O268 adopted, was entitled to preliminary in- Tenants’ advocacy organization, which junction prohibiting city from enforcing its waited under June 1 to choose location of policy against lying and sleeping on public protest of rent increases for rent-regulated sidewalks; city’s application of its policy to apartments, were not guilty of laches so as the vigil was likely not permissible under to preclude preliminary injunctive relief First Amendment since sleeping ban was prohibiting city from arresting protesters not narrowly tailored to the asserted inter- METROPOLITAN COUNCIL, INC. v. SAFIR 439 Cite as 99 F.Supp.2d 438 (S.D.N.Y. 2000) ests and injunction would be limited to lic places and in keeping the sidewalks preventing a prior restraint on speech and clear of obstructions. The City argues leave city free to pursue criminal proceed- that this ban should apply to the instant ings after the protest. U.S.C.A. Const. vigil, notwithstanding its concession that Amend. 1; N.Y.McKinney’s Penal Law these sleeping vigil participants will nei- § 240.20, subd. 5. ther be endangered nor obstruct the sidewalk. For the reasons stated more fully below, the Court concludes that under Christopher T. Dunn, Norman Siegel, these circumstances, the First Amendment Arthur Eisenberg, New York Civil Liber- of the United States Constitution does not ties Union Foundation, New York, NY, for allow the City to prevent an orderly politi- Metro. Council, Inc. cal protest from using public sleeping as a means of symbolic expression. Although OPINION & ORDER the City maintains that such a conclusion KIMBA M. WOOD, District Judge. implies that it cannot ever regulate disor- Plaintiff Metropolitan Council, Inc. is a derly public sleeping, the Court disagrees tenants’ advocacy organization that oppos- in light of the obvious and dramatic differ- es rent increases proposed by the Rent ences between the forms of conduct in Guidelines Board (the ‘‘Board’’), the New question. In granting plaintiff’s motion York City (the ‘‘City’’) agency that sets the for a preliminary injunction, the Court ex- maximum annual rent increases for New presses no opinion on and erects no bar to York’s rent-regulated apartments. Plain- the City’s prosecution for disorderly con- tiff plans to protest the proposal, and to duct of persons who are vulnerable and/or pressure the City’s Mayor to take steps to risk creating obstructions when they sleep stop it, by conducting a series of events on prone on a City sidewalk. Tuesday and Wednesday, June 13–14, I. Background 2000, shortly before the proposal is examined at a hearing scheduled for Thursday, The facts relevant to this dispute are June 15. Part of the planned protest in- simple and undisputed. They have been volves a vigil near the Mayor’s residence, established by affidavits submitted by the Gracie Mansion, in which participants will parties, all of which were received in evi- lie and sleep on a City sidewalk in order to dence at a hearing held on Friday, June 9, convey symbolically the homelessness 2000; there were no objections, and no plaintiff contends will be caused if the party sought to cross-examine the affiants, proposed rent increases are adopted. On who were available in the courtroom. The June 8, 2000, plaintiff moved for prelimi- parties also stipulated to a number of facts nary injunctive relief enjoining the City on the record. (See generally Transcript from preventing vigil participants from ly- of June 9, 2000 Hearing Before Hon. Kim- ing or sleeping on the City sidewalk, inter- ba M. Wood in Metropolitan Council, Inc. ference plaintiff anticipates because of the v. Safir, 00 Civ. 4254(KMW) (‘‘Tr.’’)). City’s policy of preventing any person Plaintiff seeks to hold a three-part pro- from sleeping on City sidewalks under any test in the evening of June 13 and the circumstances, as well as its past applica- morning of June 14. First, the event will tion of this policy to persons lying and begin with a press conference between 6 sleeping on City sidewalks as part of a p.m. and 8 p.m. in Carl Schurz Park (the political protest. ‘‘Park’’), which abuts Gracie Mansion. The City has taken the position that a Second, at 8 p.m. participants will begin a total ban on sleeping on City sidewalks is five-hour vigil in the Park (the ‘‘Park justified by its interests in safeguarding phase’’), which will involve persons lying sleeping persons from the dangers of pub- on the ground in order to convey symboli- 440 99 FEDERAL SUPPLEMENT, 2d SERIES cally the additional homelessness that the width of each sidewalk (8.5 feet of plaintiff alleges will result from the rent width along the East End Avenue side, increases proposed by the Board. There and 7.5 feet of width along the 88th Street is no dispute as to these two parts of the side). The length of the area to be cov- protest (the press conference and the Park ered by the bodies will not exceed 75 feet phase of the vigil), both of which will be (three feet per person). Plaintiff will not allowed pursuant to permits issued by the block either of the entrances to the apart- Parks Department.1 ment building, entrances that are located The conflict arises from the third phase approximately 60 feet north of the inter- of the protest, when plaintiff plans for no section and 170 feet to its west. Plaintiff more than twenty five vigil participants to will regulate the conduct of vigil partici- relocate from the Park (which closes at 1 pants by providing event marshals who a.m.) to part of a stretch of sidewalk on the will ensure that participants stay within west side of East End Avenue, opposite the designated space, coordinate their ac- the Park and Gracie Mansion, and an adja- tivities, and respond to any emergencies. cent portion of the sidewalk along 88th During the vigil, its purpose will be com- Street (the ‘‘sidewalk phase’’). Specifical- municated by signs and printed literature. ly, the protesters will continue lying prone The sidewalks in question are City side- from 1 a.m. to 8 a.m. on the sidewalks walks outside the jurisdiction of the Parks adjoining the west side of East End Ave- Department. The City concedes that no nue north of its intersection with 88th permit is required for a group to gather Street, and the north side of 88th Street and demonstrate on a City sidewalk, so near the intersection. Plaintiff expects and intends that for some amount of this long as amplified sound is not used and the period a substantial number of participants demonstration does not involve a parade or 2 will sleep. (See Tr. at 10.) procession. See N.Y.C. Admin. Code §§ 10–108, 10–110. The vigil participants will lie side by side, perpendicular to the apartment build- The City Police Department has an ab- ing on this block, covering no more than solute policy of preventing persons from half of each sidewalk’s width. The side- lying and sleeping on public sidewalks. walk along East End Avenue is sixteen According to defendants’ affiant, the police feet wide; the sidewalk along 88th Street intervene ‘‘whenever a member of the is fifteen feet wide. The protesters have force observes an individual sleeping on agreed to occupy only 7.5 feet of each the sidewalk or other public thoroughfare’’ sidewalk’s width. The protesters will thus regardless of the reason the person is leave clear for pedestrian use about half there; 3 the police then give the person a

1. At the outset of this litigation, plaintiff be- defendants that such an arrangement is actu- lieved that vigil participants would not be ally present here, the Court disregards this permitted to lie in the Park and sought pre- possibility. In any event, it is by no means liminary injunctive relief that would have clear that it is significant whether the side- barred any interference with the Park phase walk’s public character rests on City title, of the vigil. The parties have subsequently license, or some other arrangement. See reached an agreement as to the Park phase, Denver Area Educ. Telecom. Consortium, Inc. and plaintiff has withdrawn its request for an v. Federal Commun. Comm’n, 518 U.S. 727, injunction with respect to it. (See Tr. at 3.) 791–92, 116 S.Ct. 2374, 135 L.Ed.2d 888 2. Counsel for defendants has raised the possi- (1996) (Kennedy, J., concurring in part and bility, but is not currently contending, that the dissenting in part). sidewalks in question could be subject to a licensing arrangement between the City and 3. The City specifically notes that it makes no the adjoining apartment building that differs exception for expressive activity, and the from what is ordinarily considered a public sleeping ban has been invoked in the past to City sidewalk. (Tr. at 28–29.) In the absence arrest persons attempting to sleep on City of either evidence or a representation from sidewalks as part of a political protest. METROPOLITAN COUNCIL, INC. v. SAFIR 441 Cite as 99 F.Supp.2d 438 (S.D.N.Y. 2000) choice between relocation and arrest. (Af- pants sit, stand, or sleep on the ground, it fidavit of Inspector Stephen H. Friedland will have a police presence that will protect (‘‘Friedland Aff.’’) at ¶¶ 9–10.) The City them and prevent any undue blockage of thus imposes a ‘‘general ban on sleeping on pedestrian passage. Based on both coun- the City sidewalks.’’ The City enforces sel’s stipulations and the evidence before this ban without exception and without any it, the Court finds that, as planned, the consideration of a sleeping person’s intent vigil will not obstruct pedestrian traffic or the actual effects of his or her conduct and will not subject its participants to a in the particular case. (Friedland Aff. heightened danger of attack or accident. ¶¶ 8–9; Tr. at 8.) II. Discussion The sole asserted legal basis for the A. Laches City’s authority to impose such a ban is section 240.20[5] of the New York State Defendants have urged the Court to Penal Code, which reads: deny plaintiff’s motion for a preliminary A person is guilty of disorderly conduct injunction without reaching its merits be- when, with intent to cause public incon- cause of plaintiff’s allegedly unreasonable venience, annoyance or alarm, or reck- delay in seeking relief from the Court. lessly creating a risk thereof: The Court declines to do so. TTT As a preliminary matter, the question of 5. He obstructs vehicular or pedestrian plaintiff’s delay is appropriately addressed traffic; under the rubric of laches, not the irrepa- TTTT rable harm prong of the preliminary in- The City asserts that a blanket ban on junction standard. Plaintiff alleges future, public sleeping furthers the purposes of though imminent, deprivation of its consti- the statute because (1) individuals sleeping tutional rights. Accordingly, delay in on sidewalks necessarily endanger them- seeking the injunction does not undermine selves because of their vulnerability to plaintiff’s contention that such a depriva- crime or accidents (from, for example, cars tion would be irreparable, unlike a situa- jumping curbs and falling objects), and (2) tion where a plaintiff sits idly by while individuals sleeping on the sidewalk ‘‘in- irreparable harm is allegedly being suf- herently hamper free movement on and fered on an ongoing basis. See Million accessibility of the sidewalk.’’ (Friedland Youth March, Inc. v. Safir, 18 F.Supp.2d Aff. ¶¶ 4–6.) 334, 339–40 (S.D.N.Y.1998) (contrasting irreparable harm from future denial of First The City concedes that, notwithstanding Amendment rights with irreparable harm its concerns about public sleeping in gen- from ongoing infringement of intellectual eral, the conduct involved in this protest property rights), modified on other poses no particular danger to vigil partici- grounds, 155 F.3d 124 (2d Cir.1998). pants and no risk of obstructing the sidewalk. (Tr. at 18–19, 29–33.) The City [1, 2] Laches is an equitable doctrine does not dispute plaintiff’s position that applied to deny relief in the court’s discre- the general dangers cited in the Friedland tion when ‘‘it is clear that a plaintiff unrea- Affidavit will not be implicated by this vigil sonably delayed in initiating an action and because it will be overseen by protest mar- a defendant was prejudiced by the delay.’’ shals, and will occupy a limited portion of Robins Island Preserv. Fund, Inc. v. Sout- sidewalk in a relatively quiet part of the hold Dev. Corp., 959 F.2d 409, 423 (2d City during an especially quiet period of Cir.1992); accord Million Youth March, the day.4 The City candidly acknowledges 18 F.Supp.2d at 340. Here, the proposed that regardless of whether vigil partici- rent increase was announced on May 8,

4. Plaintiff anticipates that few, if any, vigil participants will sleep past 6 a.m. 442 99 FEDERAL SUPPLEMENT, 2d SERIES and was slated for debate at a previously City on notice of the advisability of prepar- scheduled June 15 hearing. On May 15, ing for a legal challenge to that policy. one of plaintiff’s committees met to discuss See, e.g., Somini Sengupta, Ten Arrested the rent proposal, and it decided to raise At Rally Against Crackdown On Home- the idea of a vigil with the Executive Com- less, N.Y. Times, Dec. 7, 1999, at B1. mittee, which met on May 24. The Execu- For these reasons, denial of plaintiff’s tive Committee did not select a vigil site at motion on laches grounds is inappropriate. that meeting, and waited until a June 1 meeting to choose the site near Gracie B. Preliminary Injunction Standard Mansion. Plaintiff initiated discussions [3] Plaintiff seeks a preliminary in- 5 with the City the next morning. junction preventing the City from interfer- Under the circumstances, plaintiff ing with its plan to engage in what it moved with reasonable speed in its plan- considers expressive activity by lying and ning of the vigil. Although plaintiff did sleeping on a City sidewalk. Plaintiff does not move with maximum feasible speed, not seek issuance of a permit, nor does it the Court sees no basis for imposing such seek a declaration that a statutory or regu- a requirement here, notwithstanding the latory scheme is unconstitutional. Under fact that faster action would have assisted these circumstances, the Court construes the Court and defendants. The limited plaintiff’s application as one for a prohibi- time available to adjudicate this dispute tory injunction that would ‘‘stay govern- stems primarily from the speed with which mental action taken in the public interest the political situation has evolved, and the pursuant to a statutory or regulatory Court is disinclined to cut off plaintiff’s scheme.’’ See Latino Officers Ass’n v. access to judicial remedies when citizens’ City of New York, 196 F.3d 458, 462 (2d ability to protest and influence government Cir.1999) (citation omitted). Accordingly, action is at stake. Cf. Million Youth a preliminary injunction may issue only if March, 18 F.Supp.2d at 340 (rejecting plaintiff ‘‘show[s] irreparable harm in the laches argument even though plaintiff absence of an injunction and a likelihood of waited ten weeks to file suit after the success on the merits.’’ Id. (citation omit- City’s rejection of its proposed event located); accord Beal v. Stern, 184 F.3d 117, tion). 122 (2d Cir.1999). The issuance and scope of any injunction is committed to the The Court acknowledges that defen- Court’s sound discretion, taking into ac- dants have been forced to present their count ‘‘all the equities of the situation, arguments on a very compressed schedule, including the public interest.’’ Million but prejudice to defendants alone, without Youth March, 155 F.3d at 125. fault on plaintiff’s part, is insufficient to support laches. Moreover, the prejudice [4] The more demanding standard of a to defendants is lessened by the absence of showing of ‘‘a ‘clear’ or ‘substantial’ likeli- factual disputes among the parties. Final- hood of success’’ is inappropriate here. ly, the City’s authority to arrest persons Such a heightened standard is appropriate for sleeping on public sidewalks, and its when the injunction is mandatory rather avowed policy of doing so, has long been a than prohibitory in nature, a distinction matter of public controversy, putting the that the Second Circuit has recognized is

5. Defendants suggest that they were initially Court notes that plaintiff’s letter of June 2, misled that the sidewalk phase of the vigil 2000, clearly refers to use of ‘‘City sidewalks,’’ would occur on the east side of East End distinguishes between the park phase (which Avenue, which is within the Parks Depart- it notes would be subject to Parks Department ment’s jurisdiction and thus requires a permit rules) and the sidewalk phase, and refers to for a demonstration of this size, not the west ‘‘an appropriate sidewalk area’’ without sug- side of East End Avenue, which is a City gesting any limitation to the avenue’s east sidewalk. Plaintiff’s counsel disagrees. The side. METROPOLITAN COUNCIL, INC. v. SAFIR 443 Cite as 99 F.Supp.2d 438 (S.D.N.Y. 2000) difficult to draw with precision, see Tom laws limiting speech. To hold otherwise Doherty Assocs. v. Saban Entertainment, would essentially apply the ‘‘mandatory’’ Inc., 60 F.3d 27, 34 (2d Cir.1995), but label to every preliminary injunction de- which generally entails injunctions that signed to allow a particular expressive ‘‘will alter, rather than maintain the status event to occur without interference, even quo, or will provide the movant with relief when no permit is required by law. Cf. that cannot be undone even if the defen- Latino Officers Ass’n v. City of New York, dant prevails at a trial on the merits.’’ No. 97 Civ. 1384(KMW), 1999 WL Beal, 184 F.3d at 122 (internal quotation 386753,*3 (S.D.N.Y. June 10, 1999) (apply- marks and modifications omitted). The ing standard for prohibitory injunctions), Court notes that a plausible argument can aff’d, 196 F.3d 458, 462 (same); Housing be made that this injunction would provide Works, Inc. v. Safir, No. 98 Civ. 4994(HB), plaintiff with relief that cannot be undone, 1998 WL 409701, *2 (S.D.N.Y. July 21, one ground relied upon in Beal to classify 1998) (same); United Yellow Cab Drivers as mandatory a preliminary injunction en- Ass’n, Inc. v. Safir, No. 98 Civ. 3670(RPP), joining enforcement of a park permit 1998 WL 274295, *2 (S.D.N.Y. May 27, scheme. See also Million Youth March, 18 1998) (same); but cf. Tunick v. Safir, 209 F.Supp.2d at 339 (classifying as mandatory F.3d 67, 70 (2d Cir.2000) (opinion of Cala- a preliminary injunction requiring issuance bresi, J.) (merging, without discussion, the of an event permit because ‘‘it would pro- standards for injunctions staying govern- vide plaintiff with substantially all the re- ment action and mandatory injunctions); lief that it seeks’’ and because it would Million Youth March, 18 F.Supp.2d at 339 ‘‘mandate’’ issuance of a permit). Here, (Kaplan, J.) (applying standard for manda- however, plaintiff seeks less sweeping re- tory injunctions); Irish Lesbian and Gay lief than in Beal: an injunction tailored to Org. v. Giuliani, 918 F.Supp. 732, 739–40 a single event, not an injunction against (S.D.N.Y.1996) (Koeltl, J.) (same).6 general enforcement of a detailed regulato- Accordingly, the Court requires the ry scheme. same showing as in Latino Officers: irrep- Moreover, nothing in the proposed in- arable harm in the absence of an injunc- junction would bar the City from a future tion and a likelihood of success on the criminal prosecution of the vigil partici- merits.7 In a First Amendment case such pants. In the context of an exercise of as this one, the issue of irreparable harm First Amendment rights, it is ‘‘deeply merges with the question of success on the etched in our law [that] a free society merits. See Latino Officers, 196 F.3d at prefers to punish the few who abuse rights 462; Beal, 184 F.3d at 123–24. of speech after they break the law than to throttle them and all others beforehand.’’ C. The Merits of Plaintiff’s First Southeastern Promotions, Ltd. v. Conrad, Amendment Claim 420 U.S. 546, 559, 95 S.Ct. 1239, 43 [5] This case turns on the balance be- L.Ed.2d 448 (1975). Accordingly, an in- tween plaintiff’s interest in engaging in junction, although not permitting the vigil expressive activity that is intertwined with to be undone, would leave open the pre- the specific conduct of lying and sleeping ferred form of relief against violations of on a City sidewalk and the City’s interest

6. When the party seeking a preliminary in- reasons stated above in the discussion of lach- junction has unreasonably delayed in initiat- es. ing litigation, the Court may in its discretion elect to require a stronger showing on the 7. In any event, the Court concludes that merits rather than denying relief altogether. plaintiff is clearly likely to succeed on the See Irish Lesbian and Gay Org. v. New York merits, so the result does not turn on the State Bd. of Ancient Order of Hibernians, 788 mandatory/prohibitory distinction. F.Supp. 172, 175–76 (S.D.N.Y.1992) (Leval, J.). The Court declines to do so here for the 444 99 FEDERAL SUPPLEMENT, 2d SERIES in preventing persons from lying and v. Federal Commun. Comm’n, 512 U.S. sleeping on City sidewalks. The parties 622, 662, 114 S.Ct. 2445, 129 L.Ed.2d 497 agree that the City’s policy is content- (1994) (discussing the test derived from neutral. Moreover, the parties agree that O’Brien v. United States, 391 U.S. 367, 88 the proposed activity of lying and sleeping S.Ct. 1673, 20 L.Ed.2d 672 (1968)). There on the City sidewalks has an expressive ‘‘is little, if any, differen[ce]’’ between the component in the context of this vigil and standards applied to these two types of its preceding press conference. The Court restriction on expressive activity. Ward, emphasizes that this case does not involve, 491 U.S. at 798, 109 S.Ct. 2746 (quoting nor does the Court express any opinion Clark, 468 U.S. at 298, 104 S.Ct. 3065). concerning, the broader question of wheth- The Supreme Court has equated their re- er the City may prohibit lying and sleeping quirements for narrowly-tailored advance- on public sidewalks when that conduct is ment of a significant governmental inter- not an integral part of a large, planned, est. See Turner Broadcasting, 512 U.S. at publicized protest and is not accompanied 662, 114 S.Ct. 2445. by incidents of speech such as signs and The ‘‘ample alternative channels’’ re- literature explaining the protest. See quirement has not explicitly been incorpo- Clark v. Community for Creative Non– rated into the O’Brien test for conduct Violence, 468 U.S. 288, 294, 104 S.Ct. 3065, regulation that burdens speech, see id. (not 82 L.Ed.2d 221 (1984) (holding that sym- discussing availability of alternative chan- bolic expression through conduct is pro- nels), but even if that requirement does tected by the First Amendment when ‘‘in not apply to conduct regulation burdening context, [it] would reasonably be under- speech outside a public forum, it clearly stood by the viewer to be communicative’’). does apply to such regulation in a public The City’s application to this vigil of its forum. In Bery, for instance, the Second policy concerning sleeping on public side- Circuit considered the unavailability of walks is constitutionally permissible only if ‘‘ample alternative channels’’ to art sellers that policy: in the context of a City ordinance requir- 1) advances a ‘‘significant governmental ing a license for those selling anything 8 interest,’’ other than food in public places. There, as here, the regulation in question restrict- 2) is ‘‘narrowly tailored’’ to serve that ed conduct (vending of non-food items) interest, and that included non-expressive conduct (for 3) ‘‘leave[s] open ample alternative instance, selling umbrellas) but which also channels for communication.’’ burdened expressive activity (selling art) Clark, 468 U.S. at 293, 104 S.Ct. 3065; in a public forum. Accordingly, this case accord Bery v. City of New York, 97 F.3d is properly analyzed under the same stan- 689, 697 (2d Cir.1996). dard applied in Bery, the standard for The City’s policy has features of both a time, place, and manner restrictions on content-neutral time, place, and manner speech in a traditional public forum. See restriction on speech in a traditional public 97 F.3d at 697. forum, of which the City sidewalks are undoubtedly a prime example, see Loper v. 1. The City’s Interest in Regulating New York City Police Dep’t, 999 F.2d 699, Sleeping on Public Sidewalks 704 (2d Cir.1993), and a content-neutral The City puts forward two general inter- regulation of conduct that incidentally bur- ests that it asserts are advanced by its ban dens speech, see Turner Broad. Sys., Inc. on sleeping on public sidewalks: (1) pro-

8. Moreover, the Bery court applied the full without ‘‘address[ing] the question of whether time, place, and manner test after noting that alternative channels of expression remained the district court had applied the O’Brien test open to appellants.’’ 97 F.3d at 693. METROPOLITAN COUNCIL, INC. v. SAFIR 445 Cite as 99 F.Supp.2d 438 (S.D.N.Y. 2000) tecting sleeping individuals from the dan- any activity—is overbroad. The City ac- gers of the streets, dangers to which peo- knowledged at oral argument that apply- ple are far more vulnerable when asleep ing its ban on public sleeping to this vigil than when awake, and (2) preventing fails to further its asserted interests. The sleeping individuals from obstructing free vigil is planned to occupy a limited amount passage for pedestrians, something that, of space—no more than half the width of according to the City, sleeping persons the sidewalk—and to avoid obstructing any 9 ‘‘inherently’’ do. (See Friedland Aff. ¶¶ 3– entrances to adjacent buildings. The City 7.) The Court has no doubt, and plaintiff concedes that standing protesters occupy- does not dispute, that the City has a sub- ing exactly the same amount of space on stantial interest both in protecting vulner- the sidewalk would not obstruct pedestrian able persons from the dangers posed by traffic, and that it would not attempt to criminals and errant cars and in maintain- interfere with such a protest. Moreover, ing the free movement of pedestrian traffic plaintiff plans to staff the vigil with mar- on City sidewalks. See, e.g., Cox v. Loui- shals (some of whom would be awake at all siana, 379 U.S. 536, 554–55, 85 S.Ct. 453, times) to ensure that participants, whether 13 L.Ed.2d 471 (1965). Moreover, the awake or asleep, do not spill out of the City’s policy clearly furthers these inter- protest area and block the sidewalk; the ests to some extent. In order to justify City does not dispute the effectiveness of application of this policy to expressive con- this arrangement. With respect to danger duct, however, the complete ban on sleep- to the participants, the City concedes that ing or lying on public sidewalks must be the presence of marshals eliminates those narrowly tailored to advance those inter- safety concerns related to sleeping. Final- ests. ly, the City acknowledges that because this 2. Narrow Tailoring is a planned, publicized protest, it intends to maintain a significant police presence at The narrow tailoring requirement does the event regardless of its form, and that not obligate the City to use the ‘‘least this police presence can and will protect restrictive or least intrusive means’’ to ad- participants from harm and prevent them vance its interests, but it does bar the City from occupying excessive sidewalk space, from ‘‘burden[ing] substantially more just as the City would with a group of speech than is necessary to further’’ those standing or sitting protesters. Indeed, the interests. Ward v. Rock Against Racism, City itself characterized as ‘‘ridiculous’’ the 491 U.S. 781, 799, 109 S.Ct. 2746, 105 notion that its general concerns about pub- L.Ed.2d 661 (1989); accord Turner Broad- lic sleeping could have any application to casting, 512 U.S. at 662, 114 S.Ct. 2445. sleeping participants in this vigil. As the facts of this case demonstrate, a complete ban on sleeping or lying on pub- The inapplicability to this event of the lic sidewalks is not narrowly tailored either City’s general concerns does not necessari- to protecting citizens from the dangers of ly imply that the complete sleeping ban is City streets or to preventing sidewalk ob- overbroad. Some harmless conduct may struction. be barred by a restriction that is ‘‘narrow- The City’s complete ban—encompassing ly tailored,’’ given that the City need not public sleeping in any manner on all side- employ the least restrictive means to ad- walks at all times by all people as part of dress its concerns about public sleeping.10

9. The City justifies its ban on sleeping or lying on police officers to determine who is awake on City sidewalks by reference to the dangers and who is asleep. posed by sleeping individuals. The City extends the ban, however, to persons who are 10. Similarly, ‘‘narrow tailoring’’ is not as- lying on the sidewalk but awake, because the sured by the mere fact that the ban’s applica- City claims it would impose an undue burden tion to some other conduct, or even a substan- 446 99 FEDERAL SUPPLEMENT, 2d SERIES Here, however, the sleeping ban is over- the conduct (public sleeping) is especially broad because of the obvious and dramatic likely to fall into this subset (unproblemat- difference between the conduct at which ic public sleeping) when it has a primarily the ban is aimed—as defendants’ counsel expressive function (such as in this pro- put it, ‘‘the normal circumstances TTT [in- test). volving] just intoxicated individuals that sleep on the sidewalk or homeless persons It is this feature that distinguishes this who sleep on the sidewalk’’ (Tr. at 19– case from Clark v. Community for Crea- 20)—and the organized, constrained pro- tive Non–Violence. In Clark, the Su- test attended by the media and guarded by preme Court held that the government protest marshals and the police that is at was not required to exempt a political issue here. These features that render protest from a general ban on camping in the sleeping here innocuous, defendants federal parks, where ‘‘camping’’ included acknowledge, are not idiosyncratic to this sleeping. The government had issued a vigil but are general features of organized permit that allowed protesters against political protest in this city. Because the homelessness to erect a tent city in Lafay- suppression of any such protest to the ette Park and the Mall in Washington, extent it involves the symbolic use of D.C., so long as demonstrators did not sleeping or lying on the ground is utterly sleep in the tents. See 468 U.S. at 290–92, unnecessary to further the interests that 104 S.Ct. 3065. In that case, however, the underlie the sleeping ban, the Court con- Court emphasized that the ban on camping cludes that the ban is not narrowly tailored needed to apply to demonstrators because to the asserted interests. ‘‘[d]amage to the parks as well as their partial inaccessibility to other members of 3. The City’s Objection That Allowing the public can as easily result from camp- The Vigil Undermines Its General ing by demonstrators as by nondemonstra- No–Sleeping Policy tors.’’ 468 U.S. at 298, 104 S.Ct. 3065. The City contends vigorously that to Because application of the ban to demon- prevent it from banning sleeping at this strators generally furthered its purposes, vigil is to permit conduct that runs afoul of it was not significant that in the case of the a generally valid ban merely because it has particular protest there may have been an expressive character in the particular little incremental benefit to the govern- case. The Court disagrees. This is a not ment from banning sleep but otherwise a case in which a speaker seeks an exemp- permitting erection of a tent city.11 See id. tion from a narrowly-tailored regulation at 297–98, 104 S.Ct. 3065; see also Paul- simply because he intends to violate it for sen v. Gotbaum, 982 F.2d 825, 829 (2d purposes of speech. Cf. Cox, 379 U.S. at Cir.1992) (noting that application to a 554, 85 S.Ct. 453 (‘‘One would not be justi- small event of a ban on leafletting and fied in ignoring the familiar red light be- solicitation was justified ‘‘[i]f the rule is cause this was thought to be a means of narrowly tailored for the events taken as a social protest.’’). Instead, it is a case in whole,’’ including far larger ones). Ac- which a subset of conduct falls within the cordingly, the ban was not overbroad, not- parameters of the ban and yet fails to withstanding that it restricted the protest- implicate the interests allegedly supporters’ attempt to communicate their message ing the ban; particularly troubling is that by sleeping in public.12

tial amount of conduct, does further the City’s 12. Unlike the situation here, the ‘‘major val- general interests. ue’’ of sleeping to the demonstration in Clark was that it facilitated a continuous presence 11. The Court also found it significant that in the parks and the attraction of homeless ‘‘the Park Service neither attempts to ban people to the tent city, 468 U.S. at 296, 104 sleeping generally nor to ban it everywhere in S.Ct. 3065; here, sleeping plays a more sig- the parks.’’ 468 U.S. at 295, 104 S.Ct. 3065. METROPOLITAN COUNCIL, INC. v. SAFIR 447 Cite as 99 F.Supp.2d 438 (S.D.N.Y. 2000) Here, unlike in Clark, demonstrations then it cannot ‘‘under any circumstances, involving lying down and sleeping on a regulate the use of city sidewalks in a sidewalk are unlikely to pose the risks that manner it deems necessary and appropri- the ban seeks to avoid, in light of the ate to promote the free flow of pedestrian precautions routinely taken by protest or- traffic, the safety of individuals who may ganizers and the police regardless of engage in that conduct [sleeping], and the whether an event involves sleeping. The safety of others who live in that location or same factors that in combination will make who would go by that location.’’ (Tr. at it obvious to any passer-by or television 14.) The latter question is not before the viewer that vigil participants are engaged Court and no answer to it is entailed by in symbolic expression of a political mes- this decision. Cf. Whiting v. Town of sage concerning sleeping in the streets Westerly, 942 F.2d 18, 21 (1st Cir.1991) also render irrelevant the City’s concerns (upholding general ban on public sleeping about disorderly obstruction of sidewalks but noting that ‘‘plaintiffs do not claim that and vulnerability to crime and accident: their sleeping constituted expressive con- the pre-vigil publicity, the signs and litera- duct implicating their rights under the ture present at the vigil, the presence of first amendment’’). media and the police, the proximity to Gracie Mansion, the presence of awake First and foremost, it must be empha- and alert protest marshals. sized that all the Court is doing is allowing This analysis receives further support plaintiff to exercise First Amendment free- from the Second Circuit’s opinion in Bery doms in the context of this vigil. The City v. City of New York, in which the court has offered no evidence that those who enjoined the City from enforcing against sleep on the sidewalks while intoxicated artists its general requirement that ven- and/or homeless (the instances cited by the dors receive a City license before selling City) will implicate the First Amendment their wares in public places. The Bery at all. Although counsel for the City has court analyzed the licensing requirement expressed concern that any intoxicated ‘‘as it relates to appellants’’ and treated it person sleeping on the street can claim as a ‘‘prohibitive interdiction barring the that his conduct is symbolically expressive, display and sale of visual art on the City conduct is not converted into symbolic ex- streets,’’ even though the impact on visual pression by intentions alone; instead, con- artists was only incidental to a licensing duct must also ‘‘reasonably be understood scheme applicable to vending without re- by the viewer to be communicative.’’ gard to whether expression was implicat- Clark, 468 U.S. at 294, 104 S.Ct. 3065; cf. ed. 97 F.3d at 697. Accordingly, although Loper, 999 F.2d at 704 (analyzing whether the validity of the City’s sleeping ban begging constitutes expressive activity and ‘‘need not be judged solely by reference to concluding that it does); Young v. New the demonstration at hand,’’ Clark, 468 York City Transit Auth., 903 F.2d 146, U.S. at 296–97, 104 S.Ct. 3065, it is appro- 152–54 (2d Cir.1990) (analyzing whether priate to consider its impact on a particu- begging possesses any expressive charac- lar class of expressive activity. ter and implying that it does not). Declar- Finally, the Court notes that it sees no ing that one’s conduct is expressive does danger that an injunction concerning this not make it so, and thus the City’s fear vigil will lead to the parade of horribles that persons actually engaging disorderly envisioned by the City. The City contends conduct will ‘‘be able to assert TTT that that if it cannot stop sleeping at this vigil, really what they are doing is exercising

nificant expressive role relative to other as- tative. pects of the protest and is not primarily facili- 448 99 FEDERAL SUPPLEMENT, 2d SERIES their rights afforded them under the First public sleeping ban. What the Court en- Amendment,’’ (Tr. at 35), is misplaced. joins is only arrests of prone vigil partici- Second, even when public sleeping is pants that cut off their protest. If the expressive, it is subject to reasonable time, City believes that sleeping participants in place, and manner restrictions. A com- the vigil who adhere to the protest con- plete ban on all sleeping is not such a straints have nonetheless ‘‘obstruct[ed] ve- reasonable restriction, but more narrowly hicular or pedestrian traffic’’ ‘‘with intent tailored restrictions are surely possible. to cause public inconvenience, annoyance Cf. Bery, 97 F.3d at 697 (noting that ‘‘both or alarm, or [have] recklessly creat[ed] a visual and written expression may TTT be risk’’ of the same, it is free to pursue that TTT restricted by regulations addressed to theory in the criminal justice system after particular areas of the City where public the vigil. congestion might create physical hazards This limited relief enjoins only the most and public chaos’’); Loper, 999 F.2d at 706 pressing, and most constitutionally proble- (2d Cir.1993) (enjoining enforcement of matic, aspect of the City’s policy: its City ordinance banning begging in public function as a prior restraint on speech. places but distinguishing bans on ‘‘aggres- Arrests, or orders to disperse, that imme- sive begging’’). Nothing in the Court’s diately follow attempts by vigil partici- decision here suggests that the City must pants to lie and sleep would essentially permit public sleeping under all circum- prevent the planned expressive conduct of stances, or that the City must permit all an overnight vigil. See generally Tunick public sleeping that has any expressive v. Safir, 209 F.3d 67, 92–94 (2d Cir.2000) character. (Sack, J., concurring in the judgment) (discussing prior restraint issue with re- 4. Alternative Avenues for Communi- gard to potential arrest of photographer cation and models at outset of a photo shoot); Because plaintiff is clearly likely to suc- see also Carlin Commun., Inc. v. Moun- ceed on overbreadth grounds, the Court tain States Telephone and Telegraph Co., need not analyze whether sufficient alter- 827 F.2d 1291, 1296 (9th Cir.1987) (analyz- native means of communication would be ing as a prior restraint termination of a available to plaintiff were it barred from telephone service after the service had re- including sleeping in the sidewalk phase of peatedly transmitted allegedly obscene the vigil. messages); Penthouse Int’l, Ltd. v. McAuliffe, 610 F.2d 1353, 1357–59 (5th D. The Injunction Is Limited to Prevent- Cir.1980) (analyzing as a prior restraint ing a Prior Restraint on Speech warrantless arrests of magazine retailers It is important to note that plaintiff after they had displayed allegedly obscene seeks, and the Court grants, a preliminary materials for sale); Admiral Theatre v. injunction limited to enjoining the City City of Chicago, 832 F.Supp. 1195, 1203– from preventing plaintiff from engaging in 04 (N.D.Ill.1993) (analyzing as a prior re- the symbolic activity of sleeping as part of straint arrests of nude dancers after they the planned vigil.13 The Court is not pro- had begun allegedly obscene dancing). hibiting the City from taking post-vigil ‘‘The essence of prior restraints are that steps to criminally prosecute participants ‘they g[i]ve public officials the power to for any alleged violations of section deny use of a forum in advance of actual 240.20[5] of the New York Penal Code, the expression.’ ’’ Beal, 184 F.3d at 124 sole asserted statutory basis for the City’s (quoting Southeastern Promotions, Ltd. v.

13. The Complaint requests that the Court engaging in the symbolic expressive activity of ‘‘enjoin[ ] the defendants from taking any lying or sleeping on the public sidewalk’’ (em- steps that would prevent the plaintiff from phasis added) during the planned vigil. METROPOLITAN COUNCIL, INC. v. SAFIR 449 Cite as 99 F.Supp.2d 438 (S.D.N.Y. 2000) Conrad, 420 U.S. 546, 553, 95 S.Ct. 1239, (1965)’’ but that it may not ‘‘simply close 43 L.Ed.2d 448 (1975)) (modification in down [the] communication forum’’). The Beal opinion). Such advance interference disorderly conduct statute that the City with expression may constitute a prior re- relies upon makes reference only to ob- straint even when it is content-neutral. structing pedestrian traffic. Although the See id. (citing Forsyth County v. Nation- City has articulated a general relationship alist Movement, 505 U.S. 123, 130, 112 between sleeping and obstructing pedestri- S.Ct. 2395, 120 L.Ed.2d 101 (1992)). an traffic, it has admitted that obstruction ‘‘[P]rior restraints on speech and publica- of pedestrian traffic is not a necessary tion are the most serious and least tolera- consequence of sleeping on a public side- ble infringement on First Amendment walk and that, in any particular case, it will rights.’’ Id. (quoting Nebraska Press arrest people for sleeping on a sidewalk Ass’n v. Stuart, 427 U.S. 539, 559, 96 even if they are not, in fact, obstructing S.Ct. 2791, 49 L.Ed.2d 683 (1976)). it.14 But cf. People v. Pickett, 21 Misc.2d Here, as in Tunick, the City has (1) 192, 193 N.Y.S.2d 953, 955 (Ct. of Spec. foregone use of a licensing system to regu- Sessions, Appellate Part, 1st Dep’t 1959) late demonstrations on public sidewalks, (‘‘Merely sleeping on a subway train does (2) ‘‘failed to adopt an ordinance that not, in and of itself, constitute disorderly would make [s]eeping on public sidewalk[s] conductTTTT To constitute ‘disorderly explicitly unlawful,’’ and (3) nonetheless conduct’ there must be an actual or threat- 15 prohibited the conduct in question by in- ened breach of the peace.’’). As for the voking a general criminal statute that does City’s concern about sleeping persons’ vul- not ‘‘clearly make’’ public sleeping per se nerability, the statute provides no appar- unlawful. 209 F.3d at 92–93 (opinion of ent textual basis for treating as disorderly Sack, J.) (expressing doubt that a prior conduct any conduct that puts oneself at restraint imposed by the police ‘‘is any the risk. more permissible’’ than one imposed Finally, the statute contains a clear through a licensing system); see also Car- mens rea requirement, such that even if lin Communications, 827 F.2d at 1296 conduct actually does obstruct pedestrian (holding that the government may either traffic, the statute is violated only if that ‘‘prosecute vigorously TTT [or] establish a conduct is done with intent, or reckless prior-review permit system with proce- indifference to, ‘‘public inconvenience, an- dures that satisfy the requirements laid noyance, or alarm.’’ Because the City con- down in Freedman v. Maryland, 380 U.S. cedes that, as planned, this vigil will not be 51, 58–59, 85 S.Ct. 734, 13 L.Ed.2d 649 disorderly and will not obstruct pedestrian

14. At oral argument, defendants’ counsel sug- prohibiting conduct that has some tendency gested that some arrests in the past were to become disorderly, nor do they suggest that based on disobedience of police orders to application of the disorderly conduct statute move to another location and/or refrain from to expressive conduct can never be unconsti- sleeping. See N.Y. Penal Law § 240.20[6]. tutional. See People v. Tichenor, 89 N.Y.2d For present purposes, however, there is no 769, 658 N.Y.S.2d 233, 680 N.E.2d 606 significant difference between an arrest di- (1997) (upholding prohibition on use of abu- rectly based on sleeping on a City sidewalk sive or obscene language against facial chal- and an arrest based on disobeying an order lenge and upholding conviction for disorderly not to sleep there. See Wright v. State of conduct arising from defendant’s instigation Georgia, 373 U.S. 284, 291–92, 83 S.Ct. 1240, of a confrontation with a police officer 10 L.Ed.2d 349 (1963). through the use of obscene language); People 15. Defendants have suggested that their no- v. Turner, 48 Misc.2d 611, 265 N.Y.S.2d 841 sleeping policy has already been implicitly (1965) (upholding convictions for disorderly approved by the New York State courts, but conduct arising from defendants’ refusal to their authorities address only the propriety of obey a police order to disperse when a ‘‘dem- prosecutions for particular incidents in which onstration was interfering with pedestrian speech became disorderly. These authorities and vehicular traffic’’). do not consider a general prophylactic rule 450 99 FEDERAL SUPPLEMENT, 2d SERIES traffic, it is not obvious how vigil partici- als’ participation in it, on account of partic- pants could have the requisite culpable ipants assuming a prone position and/or mental state. sleeping, so long as the participants abide Here, where core First Amendment by the conditions to which plaintiff has rights to political protest are at stake, previously stipulated. Those conditions where the City concedes that this vigil will are that at all times during the vigil plain- not itself cause any public disorder, and tiff will provide at least two marshals who where the City’s authority to treat sleep- will remain awake and alert and who will ing as per se disorderly conduct is far from ensure that the vigil (1) will occupy no clear, the equities weigh heavily in favor of more than a 7.5 foot wide swath of side- permitting this vigil to go forward without walk extending from the sidewalk’s edge restraint. Should the City wish to do so, it furthest from the street and extending in remains free to pursue its legal theory in a length no more than 75 feet, (2) will not criminal proceeding after the protest. obstruct or impede access to the building Both sides would then be able to test the entrances on East End Avenue and 88th theory’s basis in state law, as well as its Street, and (3) will consist of no more than permissibility under the federal constitu- 25 persons. tion, and any error on the City’s part Nothing in this order shall be construed would not result in the unnecessary to limit defendants’ authority to regulate abridgement of free speech. See Tunick, the conduct of persons sleeping in public 209 F.3d at 93–94 (opinion of Sack, J.) under other circumstances, nor their au- (comparing prior restraints to subsequent thority to pursue criminal sanctions state court prosecutions). An arrest that against vigil participants subsequent to the stops the protest presents the opposite vigil based on any Penal Law violations the danger: that once the event has been sty- City alleges arise from their sleeping or mied, the minor disorderly conduct charge lying on the sidewalk during the vigil. is likely to be voluntarily dismissed, and SO ORDERED. defendants will be left restrained in their speech but unable to receive any vindica- tion if such restraint was improper. Ac- , cordingly, the injunction plaintiff seeks appropriately reflects the First Amendment principle favoring post-hoc prosecution over prior restraint. See Beal, 184 F.3d at TUFF–N–RUMBLE MANAGEMENT, 124 (quoting Southeastern Promotions, INC. d/b/a Tuff City Records, 420 U.S. at 559, 95 S.Ct. 1239.) Plaintiff, III. Conclusion v. For the reasons stated above, the Court SUGARHILL MUSIC PUBLISHING concludes that absent a preliminary injunc- INC., Sugar Hill Records, Ltd., Sugar tion, plaintiff will suffer irreparable harm Hill Records, Inc., Sugar Hill Music, from City actions that are clearly likely to Inc., Sugar Hill Music Publishing, violate the First Amendment. According- Ltd., Twenty Nine Black Music, and ly, the Court enters the following injunc- Joseph Robinson, Sr., Defendants. tion. No. 97 CIV. 7700 (RWS). This order concerns only plaintiff’s United States District Court, planned vigil on the sidewalk abutting the S.D. New York. northwestern corner of the intersection of East End Avenue and 88th Street between June 13, 2000. the hours of 1 a.m. and 8 a.m. on June 14, 2000. The Court orders defendants not to Owner of copyright to musical compo- interfere with this vigil, nor with individu- sition sued competitor for infringement.

Manhattan Sites Castle Clinton National Monument 26 Wall Street, New York, New York 10005 Telephone (212) 825-6990 Fax (212) 668-2899

Information provided will be used to determine whether a permit will be issued. Completed application must be accompanied by an application fee in the form of a cashiers check or money order in the amount of $50.00 made payable to National Park Service. Application and administrative charges are non-refundable. This completed application should be mailed to The National Park Service, 26 Wall Street, New York, New York 10005, Attention: Special Park Uses.

NOTICES

Privacy Act Statement: The Privacy Act of 1974 (5 U.S.C. 552a) provides that you be furnished with the following information in connection with information required by this application. This information is being collected to allow the park manager to make a value judgment on whether or not to allow the requested use. Applicants are required to provide their social security or taxpayer 2 identification number or activities subject to collection of fees by the National Park Service (31 U.S.C. 7701) Information from the application may be transferred to appropriate Federal, State, local agencies, when relevant to civil, criminal or regulatory investigations or prosecutions.

Paperwork Reduction Act Statement): This information is being collected subject to the Paperwork Reduction Act (44 U.S.C. 3501) to allow the park manager to make a value judgment on whether or not to allow the requested use. This information collection is required to obtain or retain a benefit. All applicable parts of the form must be completed. A Federal agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

Estimated Burden Statement: Public reporting burden for this form is estimated to average 45 minutes per response including the time it takes to read, gather and maintain data, review instructions and complete the form. Direct comments regarding this burden estimate or any aspects of this form to the National Park Service, Special Park Uses Program Manager, 1849 C Street NW (2460), Washington, D.C. 20240

Note that this is an application only, and does not serve as permission to conduct any use of the park. If your request is approved, a permit containing applicable terms and conditions will be sent to the person designated on the application. The permit must be signed by the responsible person and returned to the park prior to the event for final approval by the Park Superintendent or the designated personnel. The Permittee will be required to sign a Hold Harmless Clause.

Upon approval of the permit application, the following conditions are applicable to the permit when issued. Note: (additional condition may be added depending on the nature of the activity being requested)

1. The permittee is prohibited from giving false information; to do so will be considered a breach of conditions and be grounds for revocation: [36 CFR 2.32(a)(3)].

2. The permittee shall exercise this privilege subject to the supervision of the Superintendent or designee, and shall comply with all applicable Federal, State, county and municipal laws, ordinances, regulations, codes, and the terms and conditions of this permit. Failure to do so may result in the immediate suspension of the permitted activity or the termination of the permit.

3. If any provision of this permit shall be found to be invalid or unenforceable, the remainder of this permit shall not be affected and the other provisions of this permit shall be valid and be enforced to the fullest extent permitted by law.

4. The permittee is responsible for making all necessary contacts and arrangements with other Federal, State, and local agencies to secure required inspections, permits, licenses, etc.

5. Failure to comply with any of the terms and conditions of this permit may result in the immediate suspension or revocation of the permit. All costs associated with clean up or damage repairs in conjunction with a terminated permit will be the responsibility of the permittee.

6. This permit may be revoked at the discretion of the Superintendent upon 24 hours notice, or without notice if damage to resources or facilities occurs or is threatened, notwithstanding any other term or condition of the permit to the contrary. 3

7. This agreement is made upon the express condition that the United States, its agents and employees shall be free from all liabilities and claims for damages and/or suits for or by reason of any injury, injuries, or death to any person or persons or property of any kind whatsoever, whether to the person or property of the Permittee its agents or employees, or third parties, from any cause or causes whatsoever while in or upon said premises or any part thereof during the term of this agreement or occasioned by any occupancy or use of said premises or any activity carried on by the Permittee in connection herewith, and the Permittee hereby covenants and agrees to indemnify, defend, save and hold harmless the United States, its agents, and employees from all liabilities, charges, expenses and costs on account of or by reason of any such injuries, deaths, liabilities, claims, suits or losses however occurring or damages growing out of the same.

8. Permittee agrees to carry general liability insurance against claims occasioned by the action or omissions of the permittee, its agents and employees in carrying out the activities and operations authorized by this permit. The policy shall be in the amount of $2,000,0000 aggregated and $1,000,000 per occurrence and underwritten by a United States company naming the United States of America as additionally insured. The permittee agrees to provide the Superintendent with a Certificate of Insurance with the proper endorsements prior to the effective date of the permit.

9. Permittee agrees to deposit with the park a bond in the amount of $ 0.00 from an authorized bonding company or in the form of cash or cash equivalent, to guarantee that all financial obligations to the park will be met, including the restoration and rehabilitation of the permitted area.

10. Costs incurred by the park as a result of accepting and processing the application and managing and monitoring the permitted activity will be reimbursed by the permittee. Administrative costs and estimated costs for activities on site must be paid when the permit is approved. If any additional costs are incurred by the park, the permittee will be billed at the conclusion of the permit. Should the estimated costs paid exceed the actual costs incurred; the difference will be returned to the permittee.

11. The person named on the permit as in charge of the permitted activity on-site must have full authority to make any decisions about the activity and must remain on-site at all times. He/she shall be responsible for all individuals, groups, vendors, etc. involved with the permit.

12. As a condition of acceptance of the permit by the permittee and pursuant to 41 U.S. C. 22, “No Member of Congress shall be admitted to any share or part of any contract or agreement made, entered into, or accepted by or on behalf of the United States, or to any benefit to arise thereupon.”

13. Nothing herein contained shall be construed as binding the Service to expend in any one fiscal year any sum in excess of appropriations made by Congress or administratively allocated for the purpose of this Agreement for the fiscal year, or to involve the Service in any contract or other obligation for the further expenditure of money in excess of such appropriations or allocations.

14. This permit may not be transferred or assigned without the prior written consent of the Superintendent.

4 15. The permittee shall exercise this privilege subject to the supervision of the Superintendent, and shall comply with all applicable laws and regulations of the area. The established First Amendment area for Castle Clinton is the northeast front entrance.

16. The permittee is prohibited from giving false information; to do so will be considered a breach of conditions and be grounds for revocation [Re: 36 CFR 2.32(a)(4)].

17. Permittee will comply with applicable public health and sanitation standards and codes.

18. This permit may be terminated upon breach of any of the stated conditions.

19. The Permittee, in exercising the privileges granted by this permit, shall comply with the regulations of the Department of the Interior, the National Park Service, and all Federal, State, County and Municipal laws, ordinances, or regulations which are applicable to the area of operations covered by this permit.

20. This permit may be revoked at the discretion of the Superintendent upon 24 hours notice, or without notice if damage to resources or facilities occurs or is threatened, notwithstanding any other term or condition of this permit to the contrary. Permittee will reimburse NPS for cleanup or repair of damages required to be made by NPS staff or contractor in conjunction with terminated permit.

21. Permit shall not be transferable to another party.

22. The Permittee will be required to reimburse the NPS for the recovery of costs incurred in conjunction with this permit. If additional costs are incurred during the course of this permit, the Permittee will be billed for the balance at the conclusion of the event.

23. The Permittee agrees to notify the NPS of any delays or schedule changes at least 36 hours in advance. Should the Permittee fail to provide such advance notification, the Permittee agrees to pay any costs incurred by the NPS anytime during the application, permitting, or operational process, including those due to cancellation, moving, or rescheduling of the project. Such payment will include a non-refundable charge for each staff person scheduled for the affected activity. Such charges will, at a minimum, be the equivalent of two hours overtime for each employee assigned.

24. No Credit will be given to the National Park Service, U.S. Department of the Interior, Manhattan Sites, Castle Clinton National Monument.

25. No endorsement by any Federal agency shall be stated or implied. Filming of signs or fixtures identifying any Federal agency in affiliation with the event is prohibited.

26. Permittee shall own all rights of every kind in and to all photographs and recordings made by it in the park and shall have the right to use such photographs and/or recordings in any manner it may desire without limitation or restriction of any kind. The permit does not grant rights regarding the filming, photography or recording of individuals on NPS property. In addition, rights owned by other individuals or institutions are not impacted or changed by this permit.

27. The event will be well planned and scheduled. Last minute changes will not be accommodated unless the changes are contingent upon weather or other emergency conditions and approved by the NPS representative in charge.

5 28. A member of the park staff will supervise the special event within the park boundaries. He or she will have the authority to make all supervisory decisions to assure compliance with the permit, applicable regulations, and NPS policy. The Permittee must comply with any special instructions received from this representative. Any additional information related to the privilege granted in this permit will be furnished upon request of the official in charge.

29. Any expenses incurred by NPS for such supervision will be borne by the Permittee but may be waived at the discretion of the Superintendent.

30. No employee of the NPS may work for the Permittee in any capacity whatsoever while in uniform or if directly involved in supervision of the Permittee.

31. NPS employees may not perform, or appear to perform official duties for purposes of the event unless such performance has been approved by the NPS.

32. No personal gratuity of any nature whatsoever will be offered to any employee of the Government in connection with the exercise of the privilege granted.

33. Government equipment cannot be loaned or rented or diverted from normal use for purposes of the filming.

34. This permit may be used between the hours and dates stated on the face of the permit. No activity, including arrival of vehicles and/or personnel is permitted before or after designated hours. All personnel, equipment and vehicles must be clear of NPS property by the expiration of the permit.

35. Nothing shall be attached to NPS facilities, structures, signs, or any other park properties and/or equipment including event signs, and guest lists without prior approval from Park Management.

36. Digging, scraping or moving natural or cultural features is prohibited.

37. Camouflaging or removing signs, fences or posts, etc., is prohibited.

38. Use of fire or combustible materials is prohibited.

39. Permittee will comply with state laws, county ordinances, regulations, and industry practices concerning use and/or employment of minors. Permittee will provide a complete listing of such minors involved in the project, indicating numbers and age range.

40. A copy of this permit will be kept on site at all times and will be held by permittee. The permittee will have the full authority to make decisions and must remain on site at all times during the project. The permittee will be responsible for all individuals, groups, contractors, etc., involved with the permit activities.

41. Smoking is prohibited inside the building.

42. Permittee will provide butt cans for smoking in designated areas.

43. The Permittee will comply with all safety regulations.

6 44. The permittee’s staff and/or security personnel will follow guidelines provided by a member of the park staff for instances in dealing with park visitors.

45. Permittee’s staff will communicate with visitors in a courteous, knowledgeable and professional manner.

46. The permittee will schedule all requests for electricity or other utilities well in advance of need. All necessary safety precautions will be taken should generators be used.

47. All necessary safety precautions will be taken should cabling of any distance be laid.

48. First aid and personal safety are the responsibility of the Permittee.

49. In the case of any emergency, notify the New York City Police Department at Telephone #911.

50. Permittee is responsible for collecting and disposing of all trash and debris accumulated as a result of permit activities outside of the park’s normal trash collections. Areas utilized during and after the event must be cleared of all hazards. a. Clean up of spills or accidents will be in accordance with 40 CFR and all applicable state environmental quality laws regarding disposal and hazardous/industrial wastes. b. In case of spill or accident that may involve hazardous or industrial wastes, the District Ranger and the New York City Police must be notified immediately.

51. All trash will be removed daily by the Permittee from all locations.

52. Food may not be consumed in any historic structure unless specifically designated.

53. Glass containers are prohibited.

54. Red colored beverages or liquids are not allowed in any historic structure.

55. Use of special effects or pyrotechnics is prohibited.

56. All walkways and means of egress must remain unobstructed to allow for reasonable use by park visitors and other pedestrians.

57. No fees may be collected, no donations solicited, no commercial activity conducted at the Park Site and no articles offered for sale.

58. Permittee is prohibited from selling food or beverages. Only a National Park Service contracted concessionaire is the only party officially authorized to sell food and beverages in the park.

59. The possession, consumption or other use of dangerous, intoxicating or illegal drugs is prohibited.

60. Permittee will be required to sign a Hold Harmless Clause if the application is approved.

NOTE: Additional condition will be added to the permit if your application is approved depending on the activity requested.

7 ADDENDUM #1 HOLD HARMLESS CLAUSE

This Permit is made upon the express condition that the United States of America, its agents and employees shall be free from all liabilities and claims for damages and/or suits for or by reason of any injury to any person or property of any kind whatsoever, whether to the person of property of the permitee or third parties, from any cause whatsoever arising from any activities conducted pursuant to the terms of this Permit, and the permittee covenants and agrees to indemnify, defend, save, and hold harmless the United States of America, its agents and employees from all such liabilities, expenses and costs on account of or by reason of any injuries, deaths, liabilities, claims, suits or losses however occurring or damages arising out of the same.

The permittee shall prior to the effective date of this agreement provide the assigned ranger with a Certificate of Insurance evidencing that it has obtained and will maintain during the term of this agreement Comprehensive General Liability insurance against claims occasioned by the actions or omissions of the permittee or agents and employees in carrying out the activities and operations authorized hereunder. Such insurance shall be in the amount commensurate with the degree of risk and the scope and size of such activities hereunder, but in any event, the limits of liability shall not be less than one million ($1,000,000) dollars per occurrence and two million ($2,000,000) dollars in the aggregate. If claims reduce available insurance below the required per occurrence limits, the permittee shall obtain additional insurance to restore the required limits. An umbrella or excess liability policy, in addition to a Comprehensive General Liability Policy, may be used to achieve the required limits.

All liability policies shall either name the United States of America as a named insured or shall specify that the insurance company shall have no right of subrogation against the United States and shall have no recourse against the Government for payment of any premium or assessment.

Afternoon Sessions: Common Protest Related Criminal Charges; Common Evidentiary Resources; Legal Observer and Protest Lawyer Models

CRIMINAL COURT OF THE CITY OF NEW YORK COUNTY OF NEW YORK: JURY-7 ------x THE PEOPLE OF THE STATE OF NEW YORK

- against - DECISION AND ORDER DOCKET NO.: 2011NY082981 RONNIE NUNEZ,

Defendant.

------x MATTHEW A. SCIARRINO, JR., J.

The defendant, a “member” of the “Occupy Wall Street Movement” is charged with Trespass (PL §140.00[5]), Disorderly Conduct (PL §240.20[6]) and Obstructing Governmental Administration in the Second Degree (PL §195.05) as a result of the alleged incidents that occurred on November 15, 2011 during the “eviction” of the occupiers from Zuccotti Park.

The Defendant, Ronnie Nunez now moves the Court for an order inter alia: dismissing the accusatory instrument pursuant to Criminal Procedure Law §170.30(1)(a) and pursuant to Criminal Procedure Law §170.30(1)(f). That motion is denied.

An accusatory instrument upon which the defendant may be held for trial “must allege ‘facts of an evidentiary character’ (CPL §100.15[3]) demonstrating reasonable cause to believe that the defendant committed the crime charged (CPL §100.40[4][b]).” (People v. Dumas, 68 NY2d 729, 731 [1986]). Further, a valid criminal court information must contain non-hearsay factual allegations which, if true, “establish . . . every element of the offense charged and the defendant’s commission thereof.” (CPL §100.40[1][c]).

In determining the facial sufficiency of an accusatory instrument, the court must view the facts in the light most favorable to the People. (People v. Contes, 60 NY2d 620, 621 [1983]). “That other, innocent inferences could possibly be drawn from the facts is irrelevant on this pleading stage inquiry. . . .” (People v. Deegan, 69 NY2d 976, 979 [1987]). “So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading (citations omitted).” (People v. Casey, 95 NY2d 354, 360 [2000].

Additionally, in making a determination as to the facial sufficiency of an accusatory instrument, “the court is bound by the four corners of the accusatory instrument and may not consider extraneous allegations contained in a motion to dismiss or an answer to a motion to dismiss.” (People v. Voelker, 172 Misc2d 564, 569 [Kings Cty Crim Ct 1997], citing, People v. Alejandro, 70 NY2d 133, 138 [1987]).

The within accusatory instrument states that on November 15, 2011, at about 5:30 a.m. in New York County: . . . deponent observed the defendant knowingly and unlawfully remain inside [Zuccotti Park] with a crowd of people after deponent observed and heard a NYPD Captain advise the group that they must leave the premises via bull-horn.

Deponent states that deponent is informed by Michael Fischetti, Property Manager, with Brookfield Properties that Brookfield Properties is the custodian of the park at the above location and gave the New York City Police Department permission and authority to evacuate all people from within the location. As of [November 15, 2011 at or about 5:30 a.m.] permission and authority for any individual to remain at the location was withdrawn.

Deponent states that after the above order was given deponent observed the defendant seated on the ground at the above location and the defendant had his arms locked with other persons in that the defendants’ arms were interlocked with the arms of other adjacent persons. Deponent further states that the deponent attempted to separate the defendants from each other and the additional adjacent persons and the defendants tightened their arms to prevent the deponent from removing the defendants from said other persons, in that the defendants’ arms, bent at the elbow, were moved closer and more tightly to their bodies by the defendants.

Deponent further states that the defendants’ above stated conduct prevented the deponent from conducting a lawful duty and official function, specifically a police operation and to disperse persons from the above location.

Trespass (PL § 140.05) Pursuant to PL §140.05, “[a] person is guilty of trespass when he knowingly enters or remains unlawfully in or upon premises.” Additionally, in defining the term “enter or remain unlawfully,” the Penal Law explains: A person ‘enters or remains unlawfully’ in or upon premises when he is not licensed or privileged to do so. A person who, regardless of his intent, enters or remains in or upon premises which are at the time open to the public does so with license and privilege unless he defies a lawful order not to enter or remain, personally communicated to him by the owner of such premises or other authorized person.

In order to fully discuss the issues involved some understanding of the property involved is necessary. While the court is “bound by the four corners of the accusatory instrument,” as to the sufficiency issue, one can not view the allegations in a complete vacuum. Additionally, the consideration of various issues are necessary to decide the prong of the defendant’s motion seeking a dismissal pursuant to §170.30(1)(f).

Discussion

Zuccotti Park1, located in lower Manhattan, was originally created in 1968 by United States Steel via a City Planning special permit. The park is a Privately Owned Public Space (“POPS”) presently owned by Brookfield Properties (“Brookfield”) and is open for public use. Zuccotti Park, as is typical with POPS, is intended to be used by the public for passive recreation, rather than for active recreation or sports activities and is to remain open 24 hours a day, 7 days a week unless permission for regular closures is approved by the City Planning Commission (“CPC”) .

On or about September 17, 2011, members of a protest movement2 that ultimately

1Zuccotti Park, formerly Liberty Plaza Park, covers approximately 33,000-square-feet in Lower Manhattan. The park is situated beside One Liberty Plaza between Broadway, Trinity Place, Liberty Street and Cedar Street. The park was heavily damaged in the September 1, 2001attack on America. The plaza has been used as the site of several events commemorating the anniversary of the attacks. After renovations in 2006, the park was renamed by its current owners, Brookfield, after company chairman John Zuccotti. 2While, it is not for this court to state what the message of the OWS Movement is or is not, or whether or not it is for a good purpose, it appears that the primary message is that the working, middle and lower classes have suffered because of the financial industry’s alleged excesses and fraud. It is also apparent that the OWS Movement has clearly been successful in bringing this issue to the forefront of public debate. However, for First Amendment and came to be known as “Occupy Wall Street”established a base of operations inside of Zuccotti Park. In addition to using the park as a meeting and organizational space, the occupiers also appeared to have turned the park into a campground, erecting a small number of tents and other structures in the park. A New York Times Article entitled How Occupy Wall Street Turned Zuccotti Park Into a Protest Camp, maps out the different areas in the park including a sleeping section, an area for supplies, medical care, clothing and sanitation, a kitchen with donated food, a media section a meeting area and even a library. (Bedel Saget and Archie Tse, How Occupy Wall Street Turned Zuccotti Park Into a Protest Camp, The New York Times, [October 5, 2011]).3 Wired described Zuccotti Park as a: little city within the Big City, with its own library, medical center (often staffed by volunteer nurses and doctors), information center, a common kitchen dispensing thousands of meals a day, and even its own tough neighborhood- the West side. People filled the walkways and sidewalks surrounding the occupation day and night. They ate, chatted, held spontaneous teach-ins and occasionally nasty fights. (Quinn Norton, Scenes From the Occupation: Before and After the Wall Street Eviction, Wired, [November 16, 2011]).4

Whether or not, these were the conditions in existence at the times of the alleged incidents is of course to be determined at the trials of this and other similarly situated defendants.

In late September, Brookfield promulgated rules of conduct for Zuccotti Park, which were apparently designed to ensure that the park would be able to be used for its intended purpose and to prevent the existence of perceived unlawful conditions that might potentially expose Brookfield to liability. These rules were posted at the entrance to the park.

Because occupiers were spread out across the park for twenty-four hours per day, the owners of the park claim that they were not able to perform routine maintenance or cleaning. On October 11, 2011, Brookfield sent a letter to Police Commissioner Raymond Kelly, requesting his assistance in allowing Brookfield to conduct a cleaning, inspection and any other purposes, whether the message is good or bad, agreeable or not, one’s personal views, whether for or against the movement, have no impact on this court’s decision. 3Http://www.nytimes.com/interactive/2011/10/05/nyregion/how-occupy-wall-street-turned-zuccotti-park- into-a-protest-camp.html. 4Http://www.wired.com/threatlevel/2011/11/zuccotti-before-after/ necessary maintenance in Zuccotti Park.

Towards the end of October, the New York City Fire Department (“NYFD”) concluded that the conditions in the park created a situation in which there would be no clear path of exit should there be a fire in the park. The NYFD determined that it was necessary to order the removal of belongings from the Park in order to mitigate the fire hazard. Accordingly, the Fire Commissioner issued a Violation Order to Brookfield directing that the combustible materials inside the park be removed and all other obstructions be cleared.

On November 14, 2011, Brookfield requested the City’s assistance in evacuating the park so it could be cleaned. Brookfield requested the help of the City and the New York City Police Department (“NYPD”) to rectify the unsafe and unlawful conditions by temporarily evacuating the occupiers.

On the morning of November 15, 2011, the NYPD began to clear Zuccotti Park. NYPD Community Affairs Officers circulated through the park distributing a notice from Brookfield, which requested that the occupiers temporarily leave the park so that it could be cleaned. According to the People, these written announcements were also read repeatedly by NYPD using megaphones.

The People claim that the occupiers were then given the opportunity to leave the park. Several hours elapsed between the commencement of directives to vacate at approximately 1:00 a.m. and the time at which the NYPD began arresting those who refused to leave. According to the People, many people, including the defendant, remained inside the park. The People state that a significant number of those arrested, including the defendant, sat on the ground inside the park, linked arms with each other, and actively resisted the efforts of the police to separate and remove them. The defendant, and others, were arrested and subsequently charged with Trespass (PL §140.05), Disorderly Conduct, (PL §240.20[6]), and Obstruction of Governmental Administration in the Second Degree (PL §195.05).

It should also be noted that the Occupy Movement did attempt to obtain a Temporary Restraining Order (“TRO”) to be placed back in possession of the park. In Waller v. City of New York, (34 Misc3d 371, 374 [NY Cty SCT 2011]) the court held that: To the extent that City law prohibits the erection of structures, the use of gas or other combustible materials, and the accumulation of garbage and human waste in public places, enforcement of the law and the owner’s rules appears reasonable to permit the owner to maintain its space in a hygienic, safe, and lawful condition, and to prevent it from being liable by the City or others for violations of law, or in tort. It also permits public access by those who live and work in the area who are the intended beneficiaries of this zoning bonus.

The court also held that the protestors had no right to a TRO enjoining the City and Brookfield from evicting them and enforcing public and health safety laws. id

As the owner of Zuccotti Park, Brookfield must comply with the obligations imposed on all owners of POPS by the CPC. The Plaza Standards governing Zuccotti Park state that the park must be open and available for public use 365 days per year, Z.R. §37-60. The People’s position is that the Plaza Standards governing Zuccotti Park do not preclude the owners from implementing reasonable rules, or require the owners to obtain advance approval of promulgated rules from the CPC.

The People further argue that the standards do not require that availability be offered without limitation. It is the People’s position that the applicable Zoning Resolutions requiring Brookfield to grant unregulated access to this space would be inconsistent with the concept of private ownership and would leave Brookfield powerless to meet its legal obligations as the owner of the POPS.5

In addition, Brookfield must also comply with the City’s rules and regulations. Under this regulatory scheme, while the park is considered “public space” for purposes of zoning law, Brookfield is singularly liable for fines and other penalties incurred for non-compliance with obligations imposed by the City. It is the People’s position that Brookfield did not lack the

5If this case was looked at through the eyes of a civil attorney, one might argue that if there was a negligence claim clearly the owner would be sued as a landlord, with the non-delegable duty to maintain the premises in a reasonably safe condition. Therefore, the landlord had the right to have the park cleared to maintain its property. See, PJI 2:90 et. seq. and 2:91 et. seq. authority to pursue measures necessary to ensure that Zuccotti Park was maintained in a lawful fashion, even absent prior approval from the CPC.

It is clear that if the allegations are proven true, the conditions in Zuccotti Park at the time of the order to vacate posed a serious hazard to the health and safety of those occupying the park, the City’s first responders, and the surrounding community. Moreover, the conditions also interfered with the community and general public’s ability to utilize the park for the passive recreation activities for which it was built. Faced with these deteriorating conditions, Brookfield temporarily revoked the license of the occupiers to remain in the park so that it could be cleaned and various fire and other safety hazards could be addressed. The People argue that these actions were lawful and within the scope of Brookfield’s authority. This court agrees.

This court holds that POPS owners may establish “rules of conduct,” so long as these restrictions on the use of the POPS are reasonable and designed to address nuisance or other conditions that would interfere with or are inconsistent with the intended use of the POPS by the general public. Those steps could include the temporary closing of the park for cleaning and other remedial actions, as long as the duration of the closure is as short as reasonably necessary to accomplish the goal.

New York City Zoning Resolution §37-50 states that: to ensure a safe and comfortable environment for all public plaza users, a maximum of one prohibition sign or ‘Rule of Conduct’ sign may be located within the public plaza...such signs shall not prohibit behaviors that are consistent with the normal public use of the public plaza such as lingering, eating, drinking of non alcoholic beverages or gathering in small groups.

The posted rules that Brookfield promulgated in September were designed to ensure that the park would be able to be used for its intended purpose and to prevent the existence of unlawful conditions that might expose Brookfield Property to liability. These rules included a prohibition on (i) camping and the erection of tents and other structures; (ii) lying down on the ground or lying down on benches, sitting areas or walkways in a manner that unreasonably interferes with the use of benches, sitting areas or walkways by others; (iii) the placement of tarps or sleeping bags or other coverings on the property; and (iv) the storage or placement of personal property on the ground, benches, sitting areas or walkways in a manner that unreasonably interferes with the use of such areas by others.

First Amendment6

By November of 2011, Zuccotti Park had allegedly been overridden with tents and tarps. This was prohibited in the rules promulgated by Brookfield. The defendant claims that he and others were exercising their first amendment right by setting up the tents and tarps. This argument is without merit. “The First Amendment does not offer absolute protection to all speech under all circumstances and in all places.” (Clark v. Community for Creative Non- Violence, 468 US 288, 293 [1984]). Even in public forums, reasonable restrictions on the time, place or manner of protected speech may be imposed, provided that the restrictions are content neutral, are narrowly tailored to serve a significant government interest, and leave open sufficient alternative channels for communication of that information. (Id. at 294; Thomas v. Chicago Park Dist., 534 US 316, 323 n.3 [2002]). In Waller v. City of New York, the court found that Brookfield Properties has “the right to adopt reasonable rules that permit it to maintain a clean, safe, publicly accessible space consonant with the responsibility it assumed to provide public access according to law.” (Supra at 375). The court held that the petitioners had failed to demonstrate that the rules of conduct were not reasonable time, place and manner restrictions permitted under the First Amendment. On the contrary, the court reasoned that the rules appeared to be “reasonable to permit the owner to maintain its space in a hygienic, safe and lawful condition,” to forestall liability for torts or violations of law, and to permit public access to the park by those who live and work in the area. Id. This court agrees.

There exists no basis to conclude that Brookfield’s prohibitions were applied to the defendant and other members of Occupy Wall Street because of any disagreement with their message. These rules applied to anyone using the park. Rules will be considered “narrowly tailored” in the First Amendment context if they “target and eliminate no more than the exact

6Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. source of the evil [they] seek to remedy.” (Frisby v. Shultz, 487 US 474, 485 [1988]). The rules need not be the least restrictive or intrusive available, (Ward v. Rock Against Racism, 491 US 781 [1989] but rather they must only be found to “promote a substantial government interest that would be achieved less effectively” absent the rule. (United States v. Albertini, 472 US 675, 689 [1985]). The rules of conduct enacted by Brookfield Properties track the City laws, which prohibit the erection of structures in public spaces, the use of generators on public property, and the perpetuation of unhygienic conditions stemming from an accumulation of garbage and/or human waste in public places.

In Clark v. Community for Creative Non-Violence, (468 US 288 [1984]), a group protesting homelessness argued that a National Park Service regulation prohibiting camping in certain parks violated the First Amendment insofar as it prohibited them from sleeping in Lafayette Park and the Mall. The regulation banned use of the park for living accommodations. (Id. at 290-91). The Court concluded that it was a defensible time, place and manner restriction. (Id. at 294.) The Court reasoned that the regulation “narrowly focuse[d]” on the “substantial interest in maintaining the parks” in an “attractive and intact condition, readily available” to the many others who wish to use them. (Id. at 296).

While it is possible for conduct that is symbolic or expressive in nature to be considered speech for purposes of First Amendment analysis, it is well settled that not all conduct intended to convey a message constitutes expressive speech. (United States v. O’Brien, 391 US 367, 376 [1968]). Instead, courts use a two-pronged test to determine if conduct will be considered expressive: first, the intent of the conduct must be to convey a particularized message; and second, there must be a great likelihood that the message would be understood by those who viewed it, given all of the surrounding circumstances. (Spence v. Washington, 418 US 405, 409- 410 [1974]). Under this test, erecting tents and other structures in Zuccotti Park did not qualify as protected speech and there is no reason to conclude that camping in Zuccotti Park conveyed any particular message.

Finally, as stated in Lubavitch Chabad House v. Chicago, (917 F2d 341, 347 [USCA 7th Cir 1990]) the Constitution does not give individuals the right to erect structures on public property. The court declared, “Public parks are certainly quintessential public forums where free speech is protected, but the Constitution neither provides, nor has it ever been construed to mandate, that any person or group be allowed to erect structures at will.”

It is clear that setting up tents and other structures would be a violation of the reasonable rules established by Brookfield. The arrangement of tents, other structures as well as the people and their personal belongings presented a grave safety risk in the event of a fire. The potential for loss of life or injury as people would have to navigate over and around other people, belongings, tents and other structures to exit the park in the event of a fire or other emergency could have been significant. There is no doubt that if these conditions existed that the ignition of a fire anywhere in the park would pose a grave risk of significant loss of life. This risk clearly would be heightened by the alleged prevalence of smoking and cooking in a relatively small space.

The actions of Brookfield were narrowly tailored to protect both itself from liability and those at risk because of the unsafe conditions inside Zuccotti Park. A written announcement describing what was taking place was disseminated throughout the park by police officers from community affairs, and that announcement was read repeatedly over bullhorns by uniformed members of the NYPD. This announcement informed occupiers that they had to temporarily evacuate the park with all of their property so that the park could be cleared and restored for its intended use. The announcement explicitly stated that it was being made on behalf of the owner of the park, Brookfield as well as the City of New York. The NYPD then apparently placed blockades and other measures to monitor and control the situation upon its re-opening, which the People state was done later that day.

For the reasons stated above, it is clear that when the defendant was ordered by the police to vacate the park, he was not legally entitled to refuse. By so refusing to leave after his license to be in the park had been lawfully revoked, the defendant allegedly committed a trespass. Accordingly, while at this stage of the process the court is not dismissing this count either pursuant to CPL §170.30(1) (a) or (f), it should be noted that it is reasonable to assume that given that numerous lawyers, and countless hours have been spent on what is a fairly complex legal issue, that the prosecution will have a difficult case to prove an actual intent to trespass. Clearly whether or not the defendant intended to tresspass was not a simple issue due to the many complexities of the eviction.

Disorderly Conduct (PL §240.20[6]) A person is guilty of Disorderly Conduct pursuant to P.L. §240.20(6) “. . . when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof . . . [h]e congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse. . . .”

The factual allegations contained in the within accusatory instrument sufficiently allege the elements of the charge. As stated above, the “intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof” is evidenced by the alleged acts of locking arms with others and that the defendant tightened his arms to prevent the NYPD from removing himself and other persons thereby preventing the NYPD from enforcing it’s order to dispurse from the location.

These factual allegations are sufficient to support the charge of P.L. §240.20(6) and the the defendant’s motion to dismiss this count either pursuant to CPL §170.30(1) (a) or (f) is denied.

Obstructing Governmental Administration in the Second Degree PL §195.05

A person is guilty of Obstructing Governmental Administration in the Second Degree (PL §195.05) “when he intentionally obstructs, impairs or perverts the administration of law or 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. . . .” The charge of Obstructing Governmental Administration (PL §195.05) is facially sufficient. The defendant attempted to prevent the police officer from performing an official function, that being to remove the defendant from the premises. The accusatory instrument alleges that when the NYPD Captain advised the defendant by bullhorn that he must leave the premises, the defendant sat down in the park and interlocked arms with other persons. The defendant is also alleged to have tightened his arms with others to prevent the deponent from removing the defendant from the said location. Contrary to the defense assertion, it is not necessary to allege that the removal was authorized in order for the charge to be facially sufficient. These words are not found in the statute and the accusatory instrument is sufficient so long as the factual allegations contained therein delineate what the obstruction and official function consist of (cf., Matter of Carlos G., 215 AD2d 165). Therefore, whether or not the removal, which constitutes the “official function” alleged to have been obstructed, was authorized need not be made part of the pleadings. (People v. Cacsere, 185 Misc2d 92, 93 [App. Term 2nd Dept. 2000]).

The factual allegations are, therefore, sufficient to support the charge of obstructing governmental administration in the second degree (PL §195.05). (See Cacsere, supra; People v. Stewart, 32 Misc3d 133[A][App. Term 2nd, 11th & 13th Jud. Dists. 2011], appeal denied, 18 NY3d 861 [2011]); People v. Ballard, 28 Misc3d 129[A] [App. Term 9th & 10th Jud. Dists. 2010]).

The defendant’s motion to dismiss the charge of Obstructing Governmental Administration in the Second Degree (PL §195.05) for facial insufficiency is, therefore, denied. Likewise the application to dismiss for some jurisdictional or legal impediment to conviction pursuant to CPL §170.30(1)(f) is denied.

Conclusion

While, this court recognizes that the intentions of numerous members of the OWS Movement are laudable, that does not arguably excuse one’s obligations to work within the lawful process allowed in our democratic society. The “99%” is clearly a majority and can make its voices heard in a legal, organized manner if that is its wish. No matter the alleged influence of the “1%” on the political process, at the end of the day it is the majority that determines those that have the privilege of governing this city, state and nation.

Accordingly, it is hereby:

ORDERED, that the defendant’s motion to dismiss the charge of Trespass (PL §140.05) for facial insufficiency or for some jurisdictional or legal impediment to conviction is denied; and it is further

ORDERED, that the defendant’s motion to dismiss the charge of Disorderly Conduct (P.L. §240.20[6]) for facial insufficiency or for some jurisdictional or legal impediment to conviction is denied; and it is further

ORDERED, the defendant’s motion to dismiss the charge of Obstructing Governmental Administration in the Second Degree (P.L. §195.05) for facial insufficiency or for some jurisdictional or legal impediment to conviction is denied; and it is further

ORDERED, that all other aspects of the defendant’s motion not addressed are likewise denied, including an inferred motion to dismiss the accusatory instrument in the furtherance of justice..

This opinion shall constitute the decision and order of the Court.

Dated: April 6, 2012 ______New York, New York Matthew A. Sciarrino, Jr. Judge of the Criminal Court CRIMINAL COURT OF THE CITY OF NEW YORK COUNTY OF NEW YORK ------X THE PEOPLE OF THE STATE OF NEW YORK Docket No. 2011 NY 082981 -against-

RONNIE NUNEZ

Defendant. ------X

MEMORANDUM OF LAW OF AMICUS CURIAE NEW YORK CIVIL LIBERTIES UNION

Dated February 17, 2012 Taylor Pendergrass Rebecca Engel Daniel Mullkoff Katherine Bromberg New York Civil Liberties Union Foundation 125 Broad Street, 19th Floor New York, NY 10004 (212) 607-3300 TABLE OF CONTENTS

TABLE OF AUTHORITIES ...... i

INTRODUCTION ...... 1

INTEREST OF AMICUS CURIAE...... 2

ARGUMENT...... 3

I. OWNERS OF PRIVATELY OWNED PUBLIC SPACES DO NOT HAVE THE ABILITY TO UNILATERALLY EXCLUDE THE PUBLIC AND MUST COMPLY WITH CONTRACTUAL, STATUTORY, AND CONSTITUTIONAL PRINCIPLES...... 3

A. Contractual Obligations Mandate Public Access to Privately Owned Public Spaces...... 3

B. City Zoning Law Guarantees Public Access to Privately Owned Public Spaces and Limits the Manner and Form in Which Public Access Can be Restricted...... 4

C. Constitutional Protections Apply to Privately Owned Public Spaces...... 7

II. BROOKFIELD LACKED LEGAL AUTHORITY TO EXCLUDE THE DEFENDANT FROM ZUCCOTTI PARK, RENDERING THE ACCUSATORY INSTRUMENT DEFECTIVE...... 8

A. Brookfield Had No Authority to Expel Mr. Nunez from Zuccotti Park...... 9

B. The Accusatory Instrument Is Defective...... 11

CONCLUSION...... 14

APPENDIX: Index of Exhibits

i TABLE OF AUTHORITIES

CASES

ACLU of Nevada v. City of Las Vegas 333 F.3d 1092 (9th Cir. 2003) ...... 8

Citizens To End Animal Suffering And Exploitation, Inc. v. Faneuil Hall Marketplace, Inc., 745 F. Supp. 65 (D. Mass. 1990) ...... 7

First Unitarian Church of Salt Lake City v. Salt Lake City Corp. 308 F.3d 1114 (10th Cir. 2002) ...... 8

Hague v. CIO 307 U.S. 496 (1939) ...... 7

Lennon v. Miller 66 F.3d 416 (2d Cir. 1995) ...... 13

People v. Cusamano 22 A.D.3d 427 (1st Dep’t 2005) ...... 12

People v. Edmond 17 Misc.3d 1130(A) (N.Y. Sup. Ct. Queens Cty. 2007)...... 12

People v. Felix 58 N.Y.2d 156 (1983) ...... 11

People v. Ferreira 10 Misc.3d 441(N.Y. City Crim. Ct. 2005) ...... 13

People v. Galpern 259 N.Y. 279 (1932) ...... 12

People v. Leonard 62 N.Y.2d 404 (1984) ...... 11, 12

People v. Tuchinsky, 100 Misc. 2d 521 (N.Y. Dist. Ct. 1979)...... 12

People v. Vogel 116 Misc.2d 332 (2d Dep’t 1982) ...... 13

Thomason v. Jernigan 770 F. Supp. 1195 (E.D. Mich. 1991)...... 7

ii Venetian Casino Resort, L.L.C. v. Local Joint Exec. Bd. 257 F.3d 937 (9th Cir. 2001) ...... 7

Waller v. City of New York 933 N.Y.S.2d 541(N.Y. Sup. Ct. 2011)...... 8

STATUTES

Criminal Procedure Law § 170.30...... 14

N.Y. Penal Law §140.00...... 11, 12

N.Y. Penal Law § 195.05...... 13, 14

N.Y. Penal Law § 240.20...... 12, 13

N.Y. Stat. Law § 213 ...... 6

NYC Charter § 206 ...... 6

NYC Rules § 1-01...... 6

NYC Rules § 2-03...... 6

NYC Zoning Resolution § 37-625...... 5

NYC Zoning Resolution § 37-721...... 5

NYC Zoning Resolution § 37-723...... 5

NYC Zoning Resolution § 37-726...... 5

NYC Zoning Resolution § 37-727...... 5, 6, 10

NYC Zoning Resolution § 37-752...... 5

OTHER AUTHORITIES

City of New York Special Zoning Permit, CP-20222, No. 4, p.215 (March 20, 1968) ...... 3, 9

CPC Report, Cal. No. 21, N070497 ZRY (Sept. 19, 2007)...... 4

Department of City Planning Website, Privately Owned Public Space History (last visited Jan. 24, 2012) ...... 3

iii Dunlop, “A Public Realm on Private Property: New Study Identifies and Rates Hundreds of Spaces that Earned Zoning Bonuses,” N.Y. TIMES (Oct. 15, 2000) ...... 4

Jerold Kayden, The New York City Department of Public Planning, and the Municipal Art Society of New York, Privately Owned Public Spaces: The New York City Experience, p.21 (2000)...... 3, 5, 7

Minutes of the N.Y. City Council Subcommittee on Zoning and Franchises (Oct. 9, 2007) ...... 6

iv INTRODUCTION

This case concerns the important question of whether a private property owner can unilaterally exclude a member of the public from “privately owned public spaces” in New York

City. Mr. Ronnie Nunez, the Defendant, is alleged to have refused to leave one such public space after the private owner sought to expel him. The private owner, however, had no lawful authority to exclude Mr. Nunez or any other member of the public. The accusatory instrument against Mr. Nunez is predicated on the erroneous assertion that the private owner had this authority. The Defendant’s motion to dismiss the information should be granted.

Section I of this brief discusses the important historical and legislative context regarding privately owned public spaces, or “POPS,” like Zuccotti Park. When private owners agree to create POPS in exchange for valuable zoning concessions, they bargain away their right to treat these spaces like their own private property. As a result of that bargain, private owners grant the public a permanent license to access to these spaces, which are subject to contractual, statutory, and constitutional protections. City zoning law makes unambiguously clear that private owners must obtain the advance approval of the City Planning Commission (“CPC”) before enforcing any restrictions on public access to a POPS. The law also makes clear that before the CPC can authorize any restrictions, there must be strict compliance with important procedural protections that are designed to protect public access.

Section II discusses the fatal deficiency in the accusatory instrument. The People assert that the prosecution of Mr. Nunez on charges of trespass, disorderly conduct, and obstruction of governmental administration is supported by the fact that Brookfield Properties (“Brookfield”) withdrew its permission for the public to be in Zuccotti Park, permitting police to evacuate

Zuccotti Park and making Mr. Nunez’s continued presence there unlawful. The basis for the

1 information, however, is erroneous as a matter of law. Since the creation of Zuccotti Park in

1968, the public has had a permanent license to be present. In lieu of CPC approval, Brookfield had no authority to exclude Mr. Nunez or anyone else from Zuccotti Park. Therefore, the accusatory instrument against Mr. Nunez is insufficient and Defendants’ motion to dismiss the information should be granted.

INTEREST OF AMICUS CURIAE

The New York Civil Liberties Union (“NYCLU”), an affiliate of the American Civil

Liberties Union, is a non-profit, non-partisan organization with approximately 40,000 members.

The NYCLU is committed to the protection of the fundamental right to engage in expressive conduct in New York City’s public spaces, including Zuccotti Park. Mr. Nunez is one of many individuals currently being prosecuted for being present in Zuccotti Park under similar circumstances. Thus, the ruling on Mr. Nunez’s motion to dismiss may affect other similar prosecutions in the Criminal Court of the City of New York. In addition, New York City has hundreds of POPS that, like Zuccotti Park, are important public fora for the exercise of First

Amendment rights, particularly in New York City’s dense urban environment. Consequently, the ruling on Mr. Nunez’s motion to dismiss may also have an impact on the right to access these public spaces free from unilateral and unlawful actions taken by private owners. For these reasons, the resolution of this case is important to the NYCLU and its members.

ARGUMENT

I. OWNERS OF PRIVATELY OWNED PUBLIC SPACES DO NOT HAVE THE ABILITY TO UNILATERALLY EXCLUDE THE PUBLIC AND MUST COMPLY WITH CONTRACTUAL, STATUTORY, AND CONSTITUTIONAL PRINCIPLES.

Since 1961, New York City has encouraged the development of hundreds of POPS like

Zuccotti Park across the five boroughs. These spaces are created by granting zoning incentives 2 to the private developers of office and residential buildings in exchange for the creation of spaces that are legally required to be open and accessible to the public. Currently, over 500 of these public spaces exist throughout the City, totaling 3.5 million square feet of public space. See

Department of City Planning Website, Privately Owned Public Space History (last visited Jan.

24, 2012), attached as Exhibit A.

In exchange for these valuable zoning concessions, private owners of POPS forfeit their traditional rights as property owners and must abide by legal constraints governing these public spaces. As explained in a book co-authored by the New York City Department of Planning:

In return for the [zoning] incentive, the developer agrees to allocate a portion of its lot or building to be used as a privately owned public space, construct and maintain the space according to design standards articulated by the zoning and implementing legal actions, and allow access to and use of the space by members of the public . . . Although the privately owned public space continues, by definition, to be “privately owned,” the owner has legally ceded significant rights associated with its private property, including the right to exclude others, and may not longer treat this part of its property any way it wishes. As de facto third party beneficiaries, members of the public participate in the exchange by gaining their own rights to this private property . . .

See Jerold Kayden, The New York City Department of Public Planning, and the Municipal Art

Society of New York, Privately Owned Public Spaces: The New York City Experience (2000) at

21, excerpts attached as Exhibit B. As a result, POPS become subject to several legal constraints that preclude the owner from treating the public space like private property.

A. Contractual Obligations Mandate Public Access to Privately Owned Public Spaces.

The contracts creating POPS contain explicit obligations mandating that the private owner create and maintain the POPS as a publicly open and accessible space. Often this document is a “special zoning permit” containing provisions requiring that the POPS be established and maintained for the public. See, e.g., City of New York Special Zoning Permit,

CP-20222, No. 4, p.215 (March 20, 1968) (requiring Zuccotti Park to be a “permanent open 3 park” for the “public benefit”), attached as Exhibit C. As noted above, the public is a direct and intended third party beneficiary of this exchange. As a result of these contractual obligations and the existence of the third party beneficiary relationship, the private owner of the POPS is precluded from acting unilaterally and managing the POPS like private property.

B. City Zoning Law Guarantees Public Access to Privately Owned Public Spaces and Limits the Manner and Form in Which Public Access Can be Restricted.

Despite these clear contractual obligations, for decades private owners unlawfully treated

POPS like private property. In 1996, the City began a three-and-a-half year project to catalogue all POPS in New York City and to determine whether owners were fulfilling their responsibility to keep them open and accessible to the public. See Privately Owned Public Spaces at 62. The results of the survey, published in 2000, found that approximately half of the then-existing POPS were illegally closed or otherwise privatized. See Dunlop, “A Public Realm on Private Property:

New Study Identifies and Rates Hundreds of Spaces that Earned Zoning Bonuses,” N.Y. TIMES

(Oct. 15, 2000), attached as Exhibit D. In some cases, owners actively deterred the public from using the spaces and wrongfully asserted that the grounds were private. Id.

Subsequent to this survey, the New York City Council enacted a sweeping and comprehensive rezoning scheme governing POPS. When presenting the 2007 zoning resolution to the City Council, the CPC noted that the impediments to public access identified in the comprehensive survey motivated the revision of the “outdated and inconsistent standards in the existing zoning text.” See CPC Report, Cal. No. 21, N070497 ZRY (Sept. 19, 2007) at 10, excerpts attached as Exhibit E. Consequently, a primary concern of 2007 law was ensuring that public access to POPS was not unlawfully restricted by the private owners of these spaces.

City zoning law places several substantive and procedural constraints on private owners.

With regard to the day-to-day management of POPS defined as “public plazas,” like Zuccotti 4 Park, the zoning resolution makes clear that private owners “shall not prohibit behaviors that are consistent with the normal public use of a public plaza.” See NYC Zoning Resolution § 37-752

(2007).1 The law also mandates that public plazas conform to certain design criteria and hours of accessibility. With regard to physical access, the zoning resolution prohibits owners from erecting barriers when the public space is open and mandates that certain percentage of the frontage remain unobstructed. See NYC Zoning Resolution §§ 37-721; 37-723; 37-726. With regard to the hours of accessibility, City law requires that “public plazas shall be accessible to the public at all times, except where the CPC has authorized a nighttime closing.” See NYC

Zoning Resolution § 37-727.

City zoning law vests the CPC with the sole authority to authorize restrictions to public access, and mandates compliance with procedural safeguards before it can approve any restrictions. A private owner seeking to restrict the hours of public access must first submit documentation of the alleged “significant operational or safety issues” underlying the request.

See NYC Zoning Resolution § 37-727. The CPC is statutorily precluded from authorizing any closing of a POPS unless the private owner provides documented evidence of “significant” safety issues and the CPC determines, based on the submitted evidence, that the closure is

“necessary for public safety . . . as documented by the applicant.” See id. Similarly, the CPC is statutorily precluded from authorizing any changes to a public plaza’s physical design unless the changes will improve compliance with the public accessibility standards contained within City zoning law. See NYC Zoning Resolution § 37-625. These requirements limit the circumstances under which the CPC can authorize any modifications to public access and allow it to determine,

1 In addition, any other restrictions an owner seeks to impose on the public’s ability to use or access a public plaza must be “reasonable” pursuant to long established City policy. See Privately Owned Public Spaces at 38 (“The Department of City Planning has taken the position that an owner may prescribe ‘reasonable’ rules of conduct”).

5 based on a written record, whether the private owner’s request to otherwise restrict access is adequately justified.

These procedural requirements also ensure that the beneficiaries and users of these spaces—the public—have notice and the ability to comment before a private owner takes actions that will exclude them from a POPS. A request by a private owner to restrict access is scheduled for a public hearing, and anyone wishing to speak about the proposed modification is permitted to do so at the hearing or to submit written comments. See NYC Rules §§ 1-01(a), (m), (n); 2-

03(d)(2). The borough president and community board affected by the proposed changes are also given notice and the opportunity to comment, see NYC Charter § 206(c), further protecting the public interest against any unjustified closings or restrictions to a POPS based solely on the interests of the private owner.

The plain text of the zoning resolution makes clear that this administrative approval process is mandatory and that it is the only means by which the public’s right to access a POPS can be limited. See NYC Zoning Resolution § 37-727; cf. Comment to N.Y. Stat. Law § 213

“Exceptions” (McKinney) (“When one or more exceptions are expressly made in a statute, it is a fair inference that the Legislature intended that no other exceptions should be attached to the act by implication”). In addition to the plain language of the statue, the legislative history of the

2007 zoning resolution makes clear that this process is the exclusive means by which a private owner can obtain approval to modify access to a POPS. See Minutes of the N.Y. City Council

Subcommittee on Zoning and Franchises 14:18 to 15:22 (Oct. 9, 2007) (noting the sole “out provision” in the zoning resolution was compliance with “full process” requiring private owner to seek City approval), excerpt attached as Exhibit F.

6 In light of the long history of private owners unlawfully restricting public access to

POPS, City zoning law requires adherence to the statutory provisions maximizing public access, and strict compliance with the CPC approval process before any restrictions can be enacted or enforced by the private owner. This oversight ensures that, when it comes to POPS, private owners cannot manage these spaces as their own private property.

C. Constitutional Protections Apply to Privately Owned Public Spaces.

Finally, private owners are bound to respect the fundamental constitutional protections that apply to POPS. Numerous courts have recognized that when privately owned land is explicitly dedicated to public use, the space is a traditional public forum regardless of who holds title to the property. See, e.g., Venetian Casino Resort, L.L.C. v. Local Joint Exec. Bd., 257 F.3d

937, 945 (9th Cir. 2001) (holding that where private property owner agreed to construct sidewalk

“dedicated to public use” in exchange for ability to widen road when constructing new casino, the privately-owned section of sidewalk constituted a traditional public forum); Thomason v.

Jernigan, 770 F. Supp. 1195, 1197 (E.D. Mich. 1991) (holding that privately-owned driveway with easement for public access was a traditional public forum); Citizens To End Animal

Suffering And Exploitation, Inc. v. Faneuil Hall Marketplace, Inc., 745 F. Supp. 65 (D. Mass.

1990) (holding that pedestrian lanes inside a marketplace owned by the City of Boston but leased for 99 years by a private company constituted public forum because, inter alia, the City retained an easement protecting “the public’s access and passage”); see also Hague v. CIO, 307 U.S. 496,

515 (1939) (opinion of Roberts, J.) (“Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public.”); First Unitarian Church of Salt Lake

City v. Salt Lake City Corp., 308 F.3d 1114, 1123 (10th Cir. 2002) (“Because such traditional public fora are often easements, it is evident the property here is not exempt from the First

7 Amendment merely because it is an easement rather than land to which the government holds fee title”) (citation omitted) (holding that privately-owned street that contained a public easement was “infused with public purposes” and thus a traditional public forum); cf. Waller v. City of

New York, 933 N.Y.S.2d 541, 544 (N.Y. Sup. Ct. 2011) (assuming arguendo that First

Amendment protections apply to Zuccotti Park).

POPS are akin to “an easement held by the public on the owner’s property.” See

Privately Owned Public Spaces at 23. As spaces legally mandated to be open and accessible for the public’s benefit and use, POPS are subject to constitutional protections as traditional public fora under the First Amendment. Indeed, courts have acknowledged that when a space is explicitly designated for public use, like a POPS, it is clear that such areas are “inherently compatible” with First Amendment activity and subject to constitutional protections as traditional public fora. See ACLU of Nevada v. City of Las Vegas, 333 F.3d 1092, 1101 (9th Cir.

2003) (“[W]hen a property is used for open public access . . . we need not expressly consider the compatibility of expressive activity because these uses are inherently compatible with such activity”) (holding that privately-owned pedestrian mall was traditional public forum).

II. BROOKFIELD LACKED LEGAL AUTHORITY TO EXCLUDE THE DEFENDANT FROM ZUCCOTTI PARK, RENDERING THE ACCUSATORY INSTRUMENT DEFECTIVE.

Zuccotti Park is subject to the contractual, statutory, and constitutional protections outlined above. Accordingly, contrary to the basis for the criminal charges asserted by the People in the information, Brookfield Properties had no authority to unilaterally exclude the public from

Zuccotti Park. Consequently, the information is insufficient to support the charges against Mr.

Nunez and Defendant’s motion to dismiss should be granted.

8 A. Brookfield Had No Authority to Expel Mr. Nunez from Zuccotti Park.

Brookfield’s successors bargained away any right to exclude the public from Zuccotti

Park, as reflected in the “special permit” stating that Zuccotti Park would be a “permanent open park” for the “public benefit.” See Special Zoning Permit (March 20, 1968). Accordingly, at the time Zuccotti Park was created, permission to enter Zuccotti Park was permanently granted to all members of the public. Afterward, no member of the public was required to obtain any permission—implicit or explicit—to enter Zuccotti Park.

Nevertheless, on November 15, 2011, everyone was expelled from Zuccotti Park and metal barricades were erected encircling the entire park. Subsequent access was permitted only through two narrow gaps in the barricades patrolled by security personnel who subjected entrants to searches of their personal belongings and other restrictive conditions, and these practices persisted for nearly two months.2 See Letter from NYCLU to Commissioner Robert LiMandri,

NYC Department of Buildings (Jan. 9, 2012), attached as Exhibit G.

Brookfield’s actions violated the unambiguous terms of the special zoning permit, and were patently unreasonable in violation of Department of City Planning Policy. See Footnote 1, supra. They also violated City zoning law. In the nearly 60 days that passed between the time in which the People allege that the park was first entered by protestors on September 17, 2011, and the arrest of Mr. Nunez on November 15, 2011, Brookfield never received any approval from the

CPC to expel the public or to impose other restrictions on public access. For all these reasons,

Brookfield had no lawful authority to exclude Mr. Nunez from Zuccotti Park.

2 Two days after the NYCLU, the Center for Constitutional Rights, and the National Lawyers Guild sent a letter to the Department of Buildings regarding these ongoing violations of City zoning law, the barricades were removed and the searches ceased.

9 The People concede that Zuccotti Park must be “open to the public and maintained for public use 365 days a year,” but also assert that

. . . Brookfield Properties is the custodian of Zuccotti Park and at the time of the defendant’s arrest, permission and authority for the defendant to remain inside the park had been withdrawn . . . at the time and place of the defendant’s arrest, Brookfield Properties had transferred authority to the New York City Police Department to revoke that license by ordering the dispersal and evacuation of all individuals in the park.

See People’s Resp. ¶¶ 9, 11. This assertion, however, is fundamentally flawed. As shown above, at the time of the Mr. Nunez’s arrest, permission to enter Zuccotti Park was not Brookfield’s to grant, let alone unilaterally withdraw.

Compliance with City zoning law would have protected the public interest by ensuring public access to Zuccotti Park was not unlawfully restricted without adequate justification and public input. Brookfield would have had to document the concerns it alleged justified the complete expulsion of the public from the park and the substantial impediments to public access it imposed thereafter. See NYC §37-727. The request also would have been forwarded by the

CPC to Manhattan Community Board 13 and Borough President Scott Stringer.4 Thereafter, the request would have been the subject of a public hearing, allowing members of Community Board

1, Borough President Stringer, and any other interested member of the public to comment on the proposed restrictions. In sum, had Brookfield complied with the law, the CPC would have had

3 Community Board #1 had previously adopted a resolution stating that the First Amendment rights of those in Zuccotti Park and public safety concerns were “in no way mutually exclusive, and indeed both can be accomplished.” See Resolution Re: Occupy Wall Street Protest in Zuccotti Park, Manhattan Community Board # 1 (Oct. 25 2011), attached as Exhibit H. 4 Borough President Stringer issued a statement demanding a dialogue between Brookfield and protestors that would result in a long-term solution respecting the rights of protestors to remain. See Statement on Community Board Occupy Wall Street Resolution by Borough President Stringer, Senator Squadron and Congressman Nadler (Oct. 21, 2011), attached as Exhibit I.

10 the opportunity to consider the sufficiency of any documented evidence of safety concerns, and the public’s comments, before making an independent determination as to whether any closure of the public space was necessary and could be accomplished in accord with City zoning laws.

B. The Accusatory Instrument Is Defective.

The information alleges that Brookfield had the authority to remove Mr. Nunez from

Zuccotti Park. Since the creation of the park in 1968, however, no private owner has had the legal authority to unilaterally withdraw permission for the public to be present in Zuccotti Park.

Brookfield Properties never requested or obtained approval from the CPC. The charges against

Mr. Nunez require are predicated on the incorrect assertion that there was lawful authority to exclude Mr. Nunez from Zuccotti Park. Because this authority was lacking as a matter of law, the Defendant’s motion to dismiss the information should be granted.5

To convict Mr. Nunez for trespass in violation of N.Y. Penal Law §140.00(5), the People must be able to show that he defied a “lawful” order excluding him from Zuccotti Park. See

People v. Leonard, 62 N.Y.2d 404, 410 (1984) (finding that the prosecution has the burden of proving that “the particular order of exclusion was lawful”). For an order to be “lawful” it must have a “legitimate basis” and take into consideration the “nature and use of the subject property.”

5The People correctly concede that “whether [Brookfield Properties] had the lawful right to order protestors to leave [Zuccotti] [P]ark implicates issues of First Amendment speech rights and the right to lawful assembly.” See People’s Resp. ¶14. Zuccotti Park is indeed a traditional public forum subject to constitutional protections. See infra, Section I(C). The People are incorrect, however, that these constitutional issues preclude the Court from granting Defendant’s motion to dismiss because these issues are “inappropriate, if not impossible, for determination at the pleading stage.” Id. To the contrary, as shown in this brief, it is clear that Brookfield Properties had no authority to unilaterally exclude Mr. Nunez or any other member of the public from Zuccotti Park as a matter of contractual and statutory law. The Court should dismiss the information against Mr. Nunez on these grounds, and need not reach the serious constitutional implications of prosecuting these charges. Cf. People v. Felix, 58 N.Y.2d 156, 161 (1983) (“It is hornbook law that a court will not pass upon a constitutional question if the case can be disposed of in any other way”).

11 See id. at 411; see also People v. Cusamano, 22 A.D.3d 427, 428 (1st Dep’t 2005) (finding order must have “legitimate basis” in order to be lawful within meaning of trespass statute). An exclusion cannot be “lawful” under any circumstance if it conflicts with a statute that limits the right of a private property owner to exclude persons from its property. See People v. Tuchinsky,

100 Misc. 2d 521, 522 (N.Y. Dist. Ct. 1979) (holding that defendant could not be convicted of trespassing if landlord’s ability to exclude defendant was restricted by statute) (“The term

‘lawful’ is referable to statutes which limit the authority of property owners to make certain orders”).

The accusatory instrument asserts that the basis for the authority to exclude Mr. Nunez from Zuccotti Park was Brookfield’s act of withdrawing its permission for the public to be present. As shown above, however, Brookfield did not have had any “legitimate basis” for excluding the public and was, in fact, expressly prohibited from doing so by the terms of the special permit and City zoning law. Brookfield’s order of exclusion was not “lawful” under

N.Y. Penal Law § 140.00(5), and this charge should be dismissed.

For the same reason, the accusatory instrument is insufficient to support the charge of disorderly conduct for failing to disperse in violation of N.Y. Penal Law § 240.20(6). To convict

Mr. Nunez of disorderly conduct, the prosecution has the burden of demonstrating the existence of a lawful order to disperse from Zuccotti Park. See People v. Galpern, 259 N.Y. 279, 281

(1932) (holding there can be no disorderly conduct if defendant failed to comply with “order of a policeman . . . transcending his lawful authority”); People v. Edmond, 17 Misc.3d 1130(A), *6-7

(N.Y. Sup. Ct. Queens Cty. 2007) (dismissing disorderly conduct charge where police lacked

“legal foundation for the order to disperse”).

12 The accusatory instrument asserts that the “lawful authority” underlying the order to disperse was that Brookfield revoked its permission for the public to be present in Zuccotti Park and “transferred authority to the New York City Police Department to revoke that license by ordering the dispersal and evacuation of all individuals in the park.” See People’s Resp. ¶¶ 10-

11. Brookfield Properties, however, did not have any authority to exclude the public from

Zuccotti Park, and thus it had no “authority” that it could have “revoked” and “transferred” to police. The alleged order to disperse was made without “legal foundation” and it “transcended

[any] lawful authority” that Brookfield had to exclude Mr. Nunez from Zuccotti Park. Id. The

“legal foundation” contained in the accusatory instrument is insufficient as a matter of law to support the charge under N.Y. Penal Law § 240.20(6), and this charge should also be dismissed.

Similarly, the information is insufficient to support the charge against Mr. Nunez for obstructing government administration under N.Y. Penal Law § 195.05. To convict Mr. Nunez of obstructing governmental administration the People would have to prove, inter alia, that the

“official function” being performed by NYPD officers when they ordered Mr. Nunez to leave

Zuccotti Park was “authorized by law.” See, e.g., Lennon v. Miller, 66 F.3d 416, 424 (2d Cir.

1995) (“New York Courts have . . . held that the official function being performed must be one that was authorized by law); People v. Vogel, 116 Misc.2d 332, 332-33 (2d Dep’t 1982)

(reversing conviction where jury was not instructed that, to sustain a conviction for obstructing governmental administration, the official function performed by police officer must be legally authorized); People v. Ferreira, 10 Misc.3d 441, 442-43 (N.Y. City Crim. Ct. 2005) (dismissing charge of obstructing governmental administration where defendant was under no obligation to obey the order given by police officer). The accusatory instrument is premised on the flawed assertion that the “legal authority” underlying the “official function” of removing Mr. Nunez

13 from Zuccotti Park was Brookfield’s revocation of permission for the public to be in Zuccotti

Park. For all the reasons stated above, this official function was not “authorized by law,” and the accusatory instrument is insufficient as a matter of law to support the charge under N.Y. Penal

Law § 195.05.

CONCLUSION

For the reasons stated herein as well as those detailed in the Defendant’s Motion to

Dismiss, amicus curiae New York Civil Liberties Union urge the Court to grant Defendant’s motion and to dismiss the information against Mr. Nunez pursuant to Criminal Procedure Law §

170.30(1)(a) & (f).

DATED: New York Feb. 17, 2012 ______

Taylor Pendergrass Rebecca Engel Daniel Mullkoff Katherine Bromberg New York Civil Liberties Union Foundation 125 Broad Street, 19th Floor New York, NY 10004 (212) 607-3300

14 APPENDIX A Index of Exhibits

A. Department of City Planning Website, Privately Owned Public Space History (last visited Jan. 24, 2012)

B. Jerold Kayden, The New York City Department of Public Planning, and the Municipal Art Society of New York, Privately Owned Public Spaces: The New York City Experience, p.21 (2000)

C. City of New York Special Zoning Permit, CP-20222, No. 4, p.215 (March 20, 1968)

D. Dunlop, “A Public Realm on Private Property: New Study Identifies and Rates Hundreds of Spaces that Earned Zoning Bonuses,” N.Y. TIMES (Oct. 15, 2000)

E. CPC Report, Cal. No. 21, N070497 ZRY (Sept. 19, 2007)

F. Minutes of the N.Y. City Council Subcommittee on Zoning and Franchises (Oct. 9, 2007)

G. Letter from NYCLU to Commissioner Robert LiMandri, NYC Department of Buildings (Jan. 9, 2012)

H. Resolution Re: Occupy Wall Street Protest in Zuccotti Park, Manhattan Community Board # 1 (Oct. 25 2011)

I. Statement on Community Board Occupy Wall Street Resolution by Borough President Stringer, Senator Squadron and Congressman Nadler (Oct. 21, 2011) People v. Nunez, Docket No. 2011 NY 082891

Memorandum of Law of Amicus Curiae N ew York Civil Liberties Union

Exhibit A Privately Owned Public Space - New York City Department of City Planning Page 1 af 4

This page is located on the NYC.gov Web site at http://www. nyc. gov/htm I/dep/htm l/priv/priv. shtm I

Projects & :> Privately Owned Public Space PRIVATELY O ~c E

ober 17th, 2007:

On October 17, 2007, the City Council adopted a zoning text amendment related to design and operational standards for Privately Owned Public Plazas, as modified by the City Planning Commission. Zoning text changes are now in effect. View the adopted zoning text amendment. Download the Public Space symbol: In QQf format or Adobe Illustrator format.

The Department of City Planning, the Municipal Art Society and Harvard professor Jerold S. Kayden joined forces several years ago to develop an electronic database with detailed Information about everyone of the public spaces created as a result of the city's incentive zoning program. The database findings led to the publication of "Privately Owned Public Space: The New York City Experience" .

This book describes the evolution of incentive zoning in New York City and profiles each of the 503 public spaces at 320 buildings that were granted additional floor area or related waivers in exchange for providing these spaces. Copies of the book may be

http://www.nyc.gov/cgi-bin/misc/pfprinter.cgi?action=print&sitename= DCP &p= 13293 443... 2/15/2012 Privately Owned Public Space - New York City Department of City Planning Page 2 of 4

ordered from Urban Center Books, 457 Madison Avenue, New York, NY 10022 (212 935 3959) or online at www.urbancenterbooks.org.

The spaces a re concentrated in Manhattan's midtown and downtown business centers, although a substantial number are in east midtown and the upper east side. Three buildings in Brooklyn and one in Queens have privately owned public space. Choose a community district to view maps and tables of all spaces in the district:

Downtown -- Manhattan District 1 Greenwich Village -- Manhattan District 2 Clinton and the Upper West Side -- Manhattan Districts 4&7 Central Midtown -- Manhattan District 5 East Midtown -- Manhattan District 6 Upper East Side -- Manhattan Districts 8 & 11 Downtown Brooklyn -- Brooklyn District 2 Long Island City -- Queens District 2

The 1961 Zoning Resolution inaugurated the incentive zoning program in New York City. The prog ra m encouraged private developers to provide spaces for the public within or outside their buildings by allowing them greater density in certain high- density districts. Since its inception, the program has produced more than 3.5 million square feet of public

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space in exchange for additional building area or other considerations such as relief from certain height and setback restrictions.

At first, the program was limited to a few types of spaces like plazas and arcades, but over the years many other types with differing standards were added. Experience with the early spaces shaped standards for the later spaces, which were more precisely defined and subject to greater public scrutiny than the fIrst- generation spaces. Plazas built to the original 1961 standards account for one- third of the 503 spaces surveyed, the largest single category.

The results of the program have been mixed. An impressive amount of public space has been created in parts of the city with little access to public parks, but much of it is not of high quality. Some spaces have proved to be valuable public resources, but others are inaccessible or devoid of the kinds of amenities that attract public use. Approximately 16 percent of the spaces are actively used as regional destinations or neighborhood gathering spaces, 21 percent are usable as brief resting places, 18 percent are circulation-related, four percent are being renovated or constructed, and 41 percent are of ma rginal utility.

In response to the perceived failure of many

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of these spaces and to community opposition, the types of spaces permitted and their locations have been curtailed in recent years. And now, with this book and the comprehensive information available in the database, owners will be better aware of their obligations and the city will be better able to pursue enforcement where obligations are not being met. Only with increasing public awareness, further refinement of design standards, and diligent regulatory review and enforcement can New Yorkers be assured of high- quality privately owned public spaces.

http://www.nyc.gov/cgi-bin/misc/pfprinter.cgi?action=print&sitename=DCP&p=13293443 ... 2/15/2012 People v. Nunez, Docket No. 2011 NY 082891

Memorandum of Law of Amicus Curiae New York Civil Liberties Union

Exhibit B ,

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JEROLD S. KAYDEN ! THE NEW YORK CITY DEPARTMENT OF CITY PLANNING THE MUNICIPAL ART SOCIETY OF NEW YORK

...._z.,'._ LAW 23

.s and The financial mechanics of incentives are conceptually ceed, the rules governing the space must be clear, simple, .ublic simple. To attract developers, incentives must convey a and objective. The developer files its architectural plans coun- financial benefit sufficient at least to cover the costs describing the proposed public space and zoning compu- street incurred in providing the privately owned public space. tations with the Department of Buildings, whose examin- t may Floor area bonuses and non-floor area incentives benefit ers conduct a ministerial review to ensure that the rules sr, the developers either by increasing their income or reducing have been followed. These examiners are not authorized .quals their costs. For example, the floor area bonus increases a to exercise discretion and disapprove a proposed space aking building's cash flow or value through rental or sale of the because, in their opinion, the design could have been ! zon- extra space. Frequently, the ability to develop extra space more felicitous. Once the plans are approved, the devel- iut in allows the building to be taller, and the higher-story floors oper obtains its building permit and constructs the build- cities, may be rented or sold at higher rates. Height, setback, and ing with the bonus floor area and the public space. The tower coverage incentives may allow a building design document recording the terms of this "as-of-right" !n the that is more in keeping with the tastes of the developer or approval is the plan or plans filed at and approved by the ;sly in the market, or may decrease construction costs. Buildings Department." The City Planning Commission ed by In return for the incentive, the developer agrees to allo- and other city agencies have no role in the "as-of-right" .onus, cate a portion of its lot or building to be used as a privately approval process. "- f pro- owned public space, construct and maintain the space In contrast, the discretionary approval process, con- .celve according to design standards articulated by the zoning ducted by the City Planning Commission and sometimes e foot and implementing legal actions, and allow access to and reviewed by the City Councilor, previously, the Board of lerate use of the space by members of the public. In effect, the Estimate, is more substantive, judgmental, time- and staff- ! to be developer "pays" for its bonus floor area or non-floor-area consuming, and consultative. Through block arcades, )f pri- incentive by agreeing to these obligations. Although the covered pedestrian spaces." through block gallerias, ele- :iplier, privately owned public space continues, by definition, to vated plazas, sunken plazas, and open air concourses .et for be "privately owned." the owner has legally ceded signif- have been accorded discretionary review for reasons ments icant rights associated with its private property, including ranging from locational concerns about whether and ; total the right to exclude others, and may no longer treat this where they should situated, to law-drafting complexities ace to part of its property any way it wishes. As de facto third- of articulating in the abstract and in advance the criteria imum party beneficiaries, members of the public participate in for their design. For example, the City might want to velop- the exchange by gaining their own rights to this private review a through block arcade to ensure that, where pos- O, the property, even as they endure whatever extra congestion sible, it constitutes part of a multiblock network rather hile a and loss of light and air that may result from the grant of than exists as a maverick place, or that it tru ly reduces S, the extra floor area or other regulatory concessions. sidewalk congestion. Elevated or sunken plazas might be ;, from permitted only where they would not detract from street 5 floor and sidewalk activity. Covered pedestrian spaces within Ir area INCENTIVE ZONING'S buildings might need discretionary review because each er the one presents unique issues of potential privatization, lentlal ADMINISTRATIVE APPROVAL PROCESS related to their physical connection to the building lobby, ivered Depending on the type of privately owned public space, that may be difficult to resolve through generic rules block legally binding approval of the incentive-far-public space announced in advance. Compared to the "as-of-right" y COil- trade has been rendered through an "as-of-right," "discre- process, a nuanced case-by-case review tai lored to fit tionary," or "certification" administrative process.P The each fact pattern by an expert body, it is thought, might devel- Zoning Resolution expressly assigns the type of process to best address these and other concerns. bonus be utilized, generally reserving the discretionary process To obtain discretionary approval, the developer files an lations for public spaces thought to require the highest level of application for a special permit or authorization with the r how case-by-case review, the certification process for spaces City Planning Commission, including architectural plans )urage requiring a middle level of review, and the "as-of-right" that describe the proposed public space and zoning com- ss, and process for spaces requiring minimal review. putations. When special permits are sought, the require- reater" Employed in the past for plazas, arcades, residential ments of the City's Uniform Land Use Review Procedure ilmurn plazas until 1996,14 and some special purpose zoning dis- (ULURP) attach.l" The Department of City Planning cover trict public spaces." the "as-of-right" approval process processes the appl ication and provides professional staff ~O per- requires the developer to demonstrate to the City's Depart- assistance to the Commission for its substantive consider- irnetri- ment of Buildings that its proposed public space and zon- ation. Meetings between the development team of design- of the ing computations meet the express requirements ers, planners, and lawyers, and the City's staff of gree to announced in the Zoning Resolution, in which case the designers, planners, and lawyers are common. For special ~ "sub- owner is entitled as a matter of right to the floor area permits, civic organizations, professional and block asso- bonus. For an "as-of-right" administrative process to suc- ciations, and members of the public participate in palt CHAPTER 2 lAW DESIGN, OPERATION, AND ENFORCEMENT

erty - a city park, neighborhood Iibrary, street, or side- LEGll FRAMEWORK walk - because it is not owned by the City on behalf of Privately owned public space is law's oxymoronic inven- the people it represents. Nor has the City exercised its tion. To understand it, one must reduce the term to its two power of eminent domain to take private property and constituent parts. "Privately owned" refers to the legal sta- convert it to public space, after paying just compensation tus of the land and/or building on or in which the public to the private owner.' Public space also does not refer to space is located. The land and building are owned by pri- privately owned property de facto devoted to public vate entities commonly associated with commercial and access and use, like a department store, movie theater, residential real estate in New York City including limited museum, or restaurant. Instead, public space means a Iiabi Iity campan les, Iim ited partnersh ips, cooperatives, physical place located on private property to which the unit owners of condominia, and individuals. As owners, owner has granted legally binding rights of access and use they enjoy at first blush the full exercise of that bundle of to members of the public, most often in return for some- rights associated with "fee simple absolute" ownership of thing of value from the City to the owner. Since ownership private property, including the rights to use, transfer, and continues to reside with the private owner, public space exclude, as defined by the state's common and statutory may be thought of as an easement held by tne-public on property laws. To be sure, such rights are in fact not -the owner's property, whose extent is defined by the City's absolute. Private property is subject, for example, to land- Zoning Resolution and by implementing legal actions, use and environmental laws enacted under the state's The basic law governing the design and operation of "palice power" to protect the public's health, safety, privately owned public space in New York City, as well as morals, anel general welfare, and to common law rules of the law enforcing public space compliance with applica- good neighborliness that command that property not be ble standards, is codified in the City's 1961 Zoning Reso- used in ways that unreasonably interfere with a neighbor's lution, as originally enacted and as amended from time to use.' Furthermore, private owners who openly invite time over the past 39 years. As discussed in Chapter l, "generai" members of the public to enter and use their that Resolution regulates the use, size, and shape of all property might expose themselves to certain restrictions buildings constructed in the City's five boroughs and lays on their ability to exclude "specific" members of the pub- out an administrative framework within which private lic.2 What is clear, however, is that privately owned pub- developers are able to seek and gain approval for their lic space as defined herein would not exist were proposed buildings. Over the past 39 years, it also has conventional applications of private property law anel introduced and defined 12 legally distinct types of pri- government regu lation the sole determinants. Owners vately owned public space, as well as spaces geographi- would continue to control overall access and use of their cally tailored to specific needs in some of the City's private property, including the right to exclude the public, special purpose zoning districts, and spaces customized and the public as a whole could not secure rights of for individual buildings. While the law governing many of access and use without the owner's express permission. these spaces has been amended or, in some cases, fu IIy repealed since the spaces were initially provided, the orig- In defining "public space, II it is perhaps easiest to recognize first what it is not. Public space is not public prop- inal, as well as current, law remains relevant in deterrnin-

21 __ • --"----.0...... :... . _.---...:...... ::..... •• ,• ...:._~.;..~....;--'~.;.._c._~:.:"

38 PRIVATELY OWNED PUBLIC SPACE

Iitter control, care of vegetation, and oversight of per- As cities Appeals vari- mitted obstructions.J':' Occasionally the owner wi II have to impro ance or special signed a "maintenance and operating agreement" that nomic permit, or a City further describes the owner's obligation to keep the greater Planning Com- space clean, the vegetation healthy, and the materials in space. p mission special permit, even good repair.ê!" More generally, of course, the owner reclamai must operate the space in ways that assure satisfaction of beautifje though such , the basic access and design standards. For example, the l increasir spaces are not owner must keep the space open and accessible to the ! for enha described specif-, ~ ically in the Zon- public during required hours of access, including With SG unlocking and opening gates at the appropriate times. t are team ing Resolution The provision of required amenities in good repair is vative p itself. As such, \ implicit in the legal obligations, in that an amenity in these ap each of these public spaces bad repair is no amenity at all. For example, drinking has unique legal fountains and water features fail to satisfy their required I One of status if they exist but do not function. The owner must paltnersl parentage, and the standards also ensure that amenities that move, such as seating and has bee ¡ governing their tables, are provided in the correct numbers. Plaques under th ! design and oper- must be affixed to the walls as promised, and replaced if space. S ation are found stolen. The owner may have responsibilities for ameni- residenti in the Board of ties that inherently involve an ongoing operational com- floor arE Standards and ponent, such as a food stand, kiosk, museum, rotating art sian of exhibit, or weekly concert series. The owner may be Customized space at Appeals resolu- indoor ~ public obi iged to make the space avai lable to private, non- One East River Place (271) tion or the City - that é Planning Com- profit organizations several times a year, at no rental accessit mission report recording the action, as well as in the plans charge to the group. these sp. approved as part of that action. For example, the report The Zoning Resolution is silent, however, when it offering issued by the City Planning Commission that announces comes to the owner's "management" of use by members snviroru the granting of the special permit may refer explicitly to the of the public within the privately owned public space. To urban ( public space, or may state that the special permit applica- what extent mayan owner craft and apply its own rules barren, tion is approved "subject to the following conditions," of conduct for members of the public? A number of by-man; among them, that the "premises shall be developed in size spaces already display signs posted by the owner listing spirit un and arrangement substantially as proposed and as indi- a substantial number of forbidden activities.t" The Zon- cated on the plan filed with this application."309 The plan ing Resolution requires privately owned public spaces to . Until r submitted by the developer will show the space, thus mak- host "public use," but never expressly defines what lim- :knowlee ing the space required by the special permit approval. For its, if any, an owner may impose upon such public use. public! example, the McGraw-Hili building (97) on Sixth Avenue The Department of City Planning has taken the position experts, between West 48th and 49th Streets provides a "sunken that an owner may prescribe "reasonable" rules of con- dy this plaza" that was shown on its plans filed for and approved duct. In determining the definition of reasonable, the Jerold ~ Department has looked to the rules of conduct applica- as part of a height and setback special permit. Furthermore, 316 Departn the name for a space, for example, glass-enclosed urban ble in City-owned parks for general guidance. Thus, Munici~ plaza equlvalent'!" additional plaza.'!' or vest pocket for example, the Department has considered a dog leash joined park,312 is taken from the text or plans recording such requirement, a ban on the consumption of alcoholic Private! actions taken by the City Planning Commission or the beverages, or a prohibition on sleeping in an indoor York Ch Board of Standards and Appeals. space to be reasonable. On the other hand, suggestions tograph by owners that they be allowed to exclude "undesirable" analysis persons on some basis other than improper conduct, or examint LEGAL STANDARDS FOR THE OPERATION OF to set limits on the amount of time a member of the pub- the city lic may sit in or otherwise use a space, have been con- ach of PRIVATELY OWNED PUBUC SPACES sidered unreasonable.ê" Other fact patterns have and idually Compared to the detailed articulation of design stan- wi II arise to help sharpen the notion of reasonableness. om par dards for some, although not all, privately owned public For example, mayan owner prohibit a member of the ategor spaces, the Zoning Resolution is far less explicit and pre- public from taking a photograph or speaking into a cas- cise in enumerating standards for their ongoing opera- sette recorder at a space? What about rules against lis- tion. For certain spaces, the zoning stipulates an express tening to a radio, playing a musical instrument, or in-line requirement of maintenance including but not limited to skating? Mayan owner bar political candidates, organi- 62 PRIVATELY OWNED PUBLIC SPACE

to put the results in a form usable by members of the pub- in independent efforts undertaken by the Department of lic, City agencies, local community boards, private non- City Planning and Kayden." and some would be newly As c: profit civic organizations, design and planning prepared. The project used base map analysis, field sur- professionals, and scholars, as a means of encouraging to ill veys, and review of citywide real estate information to nom public space use, increasing legal compliance, and cast as wide a net as possible, even if it resulted in ensnar- grea enhancing consideration of public policy issues. The part- ing buildings ultimately stricken from the list. Maps divid- spa_~ ners agreed to combine intellectual, informational, staff, ing the city into numbered blocks and lots were examined and financial resources to research all privately owned to detect outdoor spaces located on lots with large com- public spaces, develop a conceptual framework to present mercial and residential buildings constructed since 1961.7 the research, and create and maintain a centralized Field surveys placed surveyors in and res- record. commercial I idential neighborhoods likely to have privately owned public space. The surveyors walked up and down every I street and recorded every outdoor and indoor space that HOW THE RESEARCH WAS CONDUCTED looked like privately owned public space. In the case of urban and residential plazas, the task would be easiest in Following a three-and-a-half-year research project best that the Zoning Resolution required the posting of public characterized as a variant of forensic accounting, the part- space plaques or signs at the space. In the case of "as-of- nership completed at the end of 1999 the task of prepar- right" plazas and arcades, however, surveyors would have ing the centralized record and putting it in the format of a to examine visual clues, such as the size and apparent computer-based database. Although it is easiest to date of the host building, and the size, dimensions, loca- describe the steps taken in research ing and creating the ~ tion, and quality of the apparent public space, to help record in a sequential fashion, it should be emphasized with initial identification. For example, buildings con- re: that the process was necessarily iterative. fic structed in the 1950s, or buildings four stories tall and The first step of the research project was to assemble a occupying most of the zoning lot, would not be sponsors sk group of experts for a wide-ranging scoping session about in of privately owned publ ic space, even if a space that oth- goals and products. Representatives of various constituen- erwise resembled privately owned public space actually - cies connected with the production, operation, and use of ae existed on the lot. Conversely, spaces at buildings con- privately owned public space, including individuals from structed in the late 1960s with a height of 35 stories would th civic organizations, the private real estate community, and o be likely public space candidates. The project also com- the public sector, joined by professional designers and pared lists of commercial and residential buildings com- e planners, attended the session and agreed with the project LI piled by private real estate brokerage firms, real estate goal of assembling a publicly accessible record. research organizations, and commercial real estate pub- b The next step was to select research methodologies and b Iishers, with the information cu lied from base map analy- the ultimate format within which research results would be sis and field surveys. Although the initial list had more placed. Research methodologies were divided into data than 360 buildings, it was eventually reduced to 320. collection and data analysis phases. Data collection The fourth step of the research project was the assem- t included the preparation of a list of all privately owned ¡ bly of all documents and supporting materials necessary public spaces and the assembly of all legal documents and to determine the legal basis and requirements for every I supporting material underlying them. Data analysis I privately owned public space in the city. These docu- involved the determination of the legal basis and requirements divided into three categories: large-format, blue- I ments for all 503 privately owned public spaces, based on I print plans containing zoning computations and site plans -~ the assembled legal documents and supporting material. submitted in support of an application for approval by a 1 I, The team conceived an analytical framework, converted to City agency; text-based documents recording special per- ·~i a database template, to guide the space-by-space inquiry, mits, authorizations, modifications, certifications, vari- -~ with sections devoted to legal basis, zoning computations, ances, and other actions taken by the approval-granting >~ required size, required hours of access, required and per- 1 agency; and text-based documents filed by the owner, :'J mitted amenities, compliance and enforcement history, and including restrictive declarations and performance bonds, -~ sources of information. The analytical framework and tem- .~ affecting its private property. Although the project had ~q plate are described more fully later in this chapter," Given some information collected over the years by the Depart- o, the various purposes sought to be achieved by the project, ment of City Planning and, to a lesser extent, by Kayden. ~-~ the team chose the vessel of a relational computer-based -~ it treated the research effort as if it were statting anew. As ;'à database to hold the results of this work.' ~~ part of th is "wide net" approach, the project conducted -~ The third step of the research project involved the numerous research expeditions to relevant public agen- -,~j preparation of a preliminary comprehensive list of build- cies and their archives to retrieve all available information 1 ings with privately owned public space. Some of this on privately owned public spaces. At the Department of ~~ information would come from lists compiled years earlier Buildings, where developers and owners file applications j il-,l People v. Nunez, Docket No. 2011 NY 082891

Memorandum of Law of Amicus Curiae New York Civil Liberties Union

Exhibit C " ~ -, ~-...

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-e J f} '1 I ,. ~~~ ~ ...... r' '.~ " ( /. f¡~¿'1 r: \ r4¡ I'ï : (.{("c l ' " , .Lt: ,...... ",\..,,~_.,...... ,.,~•.,.,,~I:r"-'W"""'~"~ ....'I·.. " ZI5 March,ro, 1?6S __ .. . ,.. "," ...... o •• , • ••• _ •• o', :':":,.:. _...... - . ---- .,..,",b -l\reä5.â¡¡elem/il1! - Ill"the il;ltmi! prcx:etl~ ófcliiiCo¡¡tlnuilii lind c!oSÎl1[¡' -iuinece.mr,y.... -,- streel - - Tila Clti' Planning COtl11111ssionrecomlllllnds that tho nw,p undercOflslôeratloll be approved after ndo¡f.ion of thé relß!ed map change (CP-20m). DONAtD H. ELLIOTT, CllairmllrNLAWRENCE M, ORTG-N V1ce-Chalr!llQl'l, HARMON H. GOLDS1'ONF ELI OIl! c. GUGGENHEIMÉ~ WALTEl< McQUADE, nEVERLY M. SPA TT, JAMES G, SWEENEY, Conn $$Iq¡~~.. I ZONING-- 130lWUGH (11'-MAtnJATTAN Nø,- 4 (CP.Z0222) IN THE MATTER OF an .pplh:aUon dated, February 15, 1968 PlU'tUl.nt to SOCtjQII8 74·7~l "nd 14·742 of the Zoning Resolution from U. S. 8t~ Co~.UQll U101'otfor It tlilU1'¡HiclaJone~rrultb1øçkl for the (ollowlng ~tlthotizations()n Il deVII/()jlll'lttlt lndudln, lot Hncs'(a) 'l'a permit thc total noor area to be distributed without regard (or 2:onin¡: (b) r:erl1llt the building: comprising the development to bo located without regard forto Il 1 the applicable height lind setback re~ulaclOIl$1 and (c) To permit II tower to occupy Itlore than 4 per cent of the lot area Qi the zonlllg' lot on which it Is Iocated, but Ilot more than 40 per cent Qt the tntIre site. StreetThe and developmentCortlartdtStreetIII Oll QtopertyBorough boundedof .Manhattan.by aroadway¡ Ged"r'Street, Church <, . Planll for this proposed development ¡¡re all ûle with the Cit* Plannin..q Com- rnhJion Md !nay be slleu In Room 15ÇX),2 t.nrayetto S'treet, Nework, N. • ' (On February 29, I~ Cal .. No, 3, the Coit1missfo/l /lxed March 1J, l%8 for il hearmg:¡ Oll March 13, l ,Ca~ No. 36, the h¢fldng was dOSèd,) On motion, the Collow/ull favorable .report Was UnanImously ado~ted I , Tt) Sl'crrlary, Bc>nrdof ES/ima!e Itom CII~• PIUllllfflf¡ Cmlllllit,doll.' Març l 2(J, 1968. On February 16, 1?§B, IL l'è~re!(!Tlh~ive of Vn ted State! Steel Cör¡¿:ratiou liItx\'!ln ~ppliC!;ltlol1, ~ltSll¡¡tlt to SectlolÍ$ 4·741 and 74·74io£ thé Zoninff Resolut on, for a ,pcclal permit for t ie following tmthol'Í:tatiOlÍ5 0011 develof IOC!tI( Uff möre tMn Olle block: al ment 101 lines;(a) To Pèrtnit Il\e!ot floor area to bel, Istrib(lted wit 10IIt regard: ior ~ollltli' (b) To permit the buildIng comprisIng the development to. b~ 1000r¡tedwltholll regllrd £orcetiain of the appllcabl~hei¡¡ht alld setbad( re!l'l1tlltiOtlsi and . '(~) 1'0 penttIt II tower tG occuPy more tban 40 per ecnt of the lot area of the! tonlns, 101 011 Which it is IDefIted, but not mo~ than 4{) percellt oí Iha entire! site. The' eve mment b on propetZ bôuncled by Broadway, CC!f'~r Strcet Churclt Street and Cortlalldt tr

1/ ~,I':\\ 1,1 '! : ;" ,"~l -~~l.-. ~J.lï'". '., )~~f,~h~~t:l%a',','; . ._ 216 .. ,., .C,' ..... :..:, ,. '.::::'- li, th~ CHy, w11l gain what amount¡¡ to à !lßrmnnont O~11 rk It'¡ Ule hel\rt of cne of Ú\C _. '~: i .II mod dcn~ely built-up areas In the wøt1ê. t 18 nel a cause of Ull& ublic benefit j' 1:\ \ th?t thll CommissIon has viewed 1111$nppllclItlon w¡l11 aver, l ;:I¡ }Ih~ iltP..pllcal1tshave Rrollos~tlg below grade, 'Xhcy have deYèlopcd 11.1\ outstanding' sit\! pla~ taking mnxlmum !\J VaJ1 t(\geof tbe slope down of ten teet from Broadway \0 Church Street with a ¡edes " ',\~i o~ w 1de and &hallow ~tePll. '. ' c~lrse (lIe paBSM{è. i~ \. On the levels oí buildIng below th~ ~Iaza they will \ltovldc'!l, way tillit will Hnlí tin extenalon' of the Fulton Street ~tatlon pll\tforrrt of the IR'!', 1\ "~ . L~xlf\g1oll 'Avenne LIM tn Cortlimdt Street' wlth: tho tiMT' at Cortlamlt Street. t\I Chmch Street the ~P8~bteWa.y will connect luto 1\ tunne]: under the' EMT' directly Into ;,1 '~.:\ ~ tho World' .'l'rade Center, l'hUI, a. dIrect, tlilk betwt:j!t\ Wo subwa~'s' IIl1tt the PA'rH stallot'l will be I\thlevet1. 'fI¡ls will re~ult III 'om~ rehe£ of the cong~5ted 5tree~ Sy$télú .... i: 'i \ :' IJl\rtlcutarly during ,the peak mornIng and evenIng' rUm homs, ' ,. , , Th1: owner~ of the vlIlldiÍ1g have agreed to continue cOIl$vltntlcll1 with the City Plultw 1 nlng Comm!uloo' h.. the <1e\niled dcvtl(l~êt1t ol 1t$ plnn9, and to make IlO s\lbstalltÎve \, changea wl\ljout thBPproval oí the Commlaslön. " Subsequent to tha hearing, the appllcatlt submitted !lIans "Z-l/' 'and"Z~2" and ~ ..' '1 "Plru;a J..e\'1!lt' dated Marcil 15. 196$, $\¡ow!n« • minot' modification oí the I)tans orlp;loal1y n\'\~'~ ~\lbtl1¡ttcd. TI1~ C0(11mlßsioil doe$ not consider theRe plllns to constHllte a substal1t!ve 'J: ,::!\ ch"oge. '. ' : ' As a. condition fot' th~ conaidcra:tiot'\ of this application by the Commission, the toi- lowlllr mInimum re<¡ulret11cnts nrc fmitid be Sl\tisfied, In accontancc'l with Section ïH~ , .. tQ \ ", 1 "~'I 7+74 of the ZOfIlng ~e$ol\lti(in t . ' ), ¡\ Id • (1\) T~ ~olilng tota ¢om[lrl~¡ng tho $iro ~or the development Inclttde land In , more than one bl~k{ and are deSIgm.t¢d Ily thclrownel: as, Il 51teall of whieh is to i !Je developed Il~ il un l;:,)' \ I ti ' , (b) The totat lot I\rea of tlla zonIng lots c

lI: t l%8¡ lild \lIIIns "Z.t." HZ·Z' I\l\d "Pt[¡,u Levéi" lInted Ml\fQh 1$, l%B,ol Utllteil J, Statet Stt!cl 1Córw.I'l\~ion for 1\ $pedat ~rm¡t tor the fo1towin&, Illlthoriz!lt¡OII~otl Il •,II '¡1~ ' :'1] , development tncluding mora than all!! block': . " i' t\) To ~rtl\lt tnll tötaltlool' atea to b¢ distributed without reg~rd tör ~oning', j il" ( '. lot 1inel:i .',. (,,'I. ¡¡ri:'11' ,• (b) 'to permit tite buildIng cømprMt1!1' the development to locllteP lca.blche!ght ;tlld s~thd'¡ re~utatloll81 al1d , (o) To ptrmlt It towot, to OCCM?t'more thM .ro Pet cent ot the lotlt!"ell of \ .: V~l thé zonhi, löt on whIch It I, tóCàt('Í~~t not mote dtän MI ~r ceut ol the entirt . ß\tl!¡ fot .. development on' {It<)JlÓrt.y boutIde ;i.\.:~' \.. If ,'J", ,'f ~; 1 •I I,

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217 March 20, l%8

-, ------"' 'illtlooss Wf$l!a!llt9, ' StctiooJ+74'Cll. , '"c,'::: ,_-' , ...... t!lÇZorl!ri$,lt~ç;lliti~,-8ïï1íJé~UÍ)t!i~rg~liïW!tiii' _.. _~ " èo.i;o':,~c ... - .. - -_._-

~ " 1. 'rhe .\1fetnls" shall ~ devct~ in ~lzc I'\m! 1lt't'2JllIetnent $Ub~tMt!;úI)' U prOjX!kd &ud j/,S Itldlc¡téd on the plans iiled with thlll lI!>plicl¡.tlotil 2. The dçvelopment tlWl comply wIth .U :lWllc¡¡ble provisioua ol Zoninll RC501uf¡~ except flir Ihe tl1

'C"C!,~~d-Wc¡!6dd~v~toI=!1tr~~::'IV,hatO e to us .i,~"!l,(¡W, TctnplcStreet.. Wtl¡"'he,""' ~ l-~ • o ill dmg or o cr stl'Ucture 1\000e the plaza grado will ever bo em-ted Oll the south~lJ' bloclc of tite! devclojm1tntlucludlnS what bl!oW 'remple BoardStreet oí without Estlmat~1.11C prior COltS

~ '0. SALVA'fORE c. GAGLIARDO, Acting Se¡:retar;v.

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Memorandum of Law of Amicus Curiae New York Civil Liberties Union

Exhibit D A Public Realm on Private Property; New study identifies and rates hundreds of spaces th... Page 1 of 3

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A Public Realm on Private Property; New study identifies and rates hundreds of spaces that earned zoning bonuses.

By DAVID W. DUNLAP Published: October 15, 2000 THERE is a realm of public space in New York City more than 80 acres in extent -- greater, that is, than Battery Park, Carl Schurz Park, Morningside Park and Tompkins Square Park combined -- of which the public knows almost nothing.

The city paid for this space through a 39-year-old incentive program that has permitted developers who furnished plazas, arcades, walkways and atriums to build 16 million square feet more floor area than would ordinarily have been allowed. That is roughly seven Empire State Buildings above and beyond normal zoning limits.

But no methodical records were kept of the diverse, dispersed public spaces that resulted. So while community groups struggled over this ill- kempt plaza or that padlocked arcade, no one had a comprehensive inventory of privately owned public space: where it was, what it was, who owned it, how they had benefited, what amenities were required, how many are actually offered and whether the space was being kept truly public.

That is about to change. A book analyzing everyone of the city's 503 privately owned public spaces at 320 buildings in Manhattan, Brooklyn and Queens is to be published Friday. It rates all the spaces. Fifteen were found to be of such high quality (what the book terms destination spaces) that they draw visitors from across the city, while 66 neighborhood spaces attract people from the community. But 207 marginal spaces, to use the authors' words, are poorly enough designed or maintained that they actually deter the public from using them.

The study, by Jerold S. Kayden of Harvard University, the City Planning Department and the Municipal Art Society, involved three and a half years offield surveys and what Mr. Kayden called "forensic accounting," reconstructing a broken trail of approvals, permits and agreements. It has already made news with its conclusion that more than half the spaces have failed in some way.

The Giuliani administration has announced an enforcement effort including three civil lawsuits against the owners of public spaces that city officials believe have been illegally stripped of amenities, illegally closed to the public or illegally annexed by commercial interests.

A more enduring consequence ofthe study, however, is likely to be its enumeration of a1l3,584,034 square feet of privately owned public space. In essence, it opens New Yorkers' eyes to the amenities to which they are entitled and informs landlords oftheir obligations. The book, "Privately Owned Public Space: The New York City Experience" (John Wiley & Sons), will later be supplemented with a database on the planning agency's Web site.

What makes this census of so much potential use to open-space advocates is that it casts light on many public areas that, by design or maintenance, are not self-evident. It is almost impossible to demand unimpeded access or to enforce requirements for amenities like seating, plantings, drinking fountains and bicycle racks when neither citizens nor city officials know that a space is designated for public use in the first place.

Frequently, there are no signs to say the public is welcome. Sometimes, owners or tenants implicitly assert that spaces are private by installing doors, gates, fences and barricades, or by allowing restaurants and stores to take over areas set a,sidefor the public, a phenomenon that Mr. Kayden, an associate professor in the Harvard Graduate School of Design, describes as "cafe creep."

Few New Yorkers, for example, realize that the four-story limestone-clad atrium in the Henri Bendel store at 712 Fifth Avenue, between 55th and 56th Streets, is technically part of a "permanent passageway," 2,100 square feet of public space that extends to the midblock lobby of the adjoining office tower. This particular space did not yield a development bonus but was required under the terms of a special permit granted to the project.

The new study states that the Fifth Avenue atrium "at all times shall be restricted to unobstructed lobby use and may not be used for any retail sales activity." However, on Wednesday, six tables, eight chairs and eight stools were set up in the atrium for demonstrating Laura Mercier cosmetics. A representative of Laura Mercier in the store said that no selling was done in the atrium, only brief makeovers for customers interested in sampling products.

But the book calls it a "commercial takeover." And Kent L. Barwick, president of the Municipal Alt Society, said the problem recurs. "What Bendel keeps doing is wrong," he said. "They're bringing the department store into the temple. That activity diminishes the grandeur of that space."

Also at issue is the ability of visitors to view the Lalique windows that date to 1910, when the landmark building was a Coty perfumery, Anthony Hebron, a spokesman for the Limited Inc., which owns Bendel, said the company was committed to assuring "continued public viewing access," although he acknowledged that "there have been some times when a little ofthe space was briefly occupied." The Lalique windows are being refurbished, he said.

Bendel is scarcely alone in appropriating open space for its own use. In one instance, the city government itself has done so.

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"It stands as a perfect example of the lack of information that existed and of the value of the book," said David Karnovsky, counsel to the planning department.

Along the Washington Street facade of the 40 Rector Street office building, a sliver of plaza --really no more than a wide place in the sidewalk-- has been taken over by a one-story scooter shed for the Police Department Downtown Center. It was built in cooperation with the Alliance for Downtown New York, which manages the lower Manhattan business improvement district.

"Neither I nor, indeed, anyone here had any idea that this little area was a bonused plaza," said Carl Weisbrod, president ofthe Alliance, in an e- mail message. In its days as a restaurant, he said, the space was hidden from the street by a high fence.

"The building owner suggested that we use this area for the First Precinct scooters and we were only too happy to do so," Mr. Weisbrod said. "In fact, one might say that the area is more public now than at any time in the recent past."

Joseph B. Rose, director of the planning agency and chairman ofthe City Planning Commission, noted that the police substation proposal had gone through public review, even though no one involved realized at the time that it was being built on 795 square feet of bonus-generating space.

Another public space that eludes recognition is the midblock plaza behind the Westvaco Building, 299 Park Avenue, from 48th to 49th Street. It looks like the driveway that nearby signs declare it to be. Gates at either end declare: "Not a Walkway."

BUT according to the survey, this "Private Driveway" is in fact palt of a 15,313-square-foot plaza around the building that generated a development bonus of 153,130 square feet for Fishel' Brothers, which built and still owns the towel'. The midblock palt of the plaza is roughly 7,000 square feet. At a bonus rate of 10 square feet of floor area for every square foot of plaza, that would mean it accounted for 70,000 square feet of office space, Ol'almost three floors in the 42-story building.

The survey reports statements from the owner that the plaza is used by the Secret Service. (The Waldorf-Astoria Hotel is across the street.) However, one cal' parked there on a recent afternoon was registered to Fishel' Brothers. Telephone and e-mail messages seeking comment on the plaza from Fishel' Brothers were not returned.

One space that partly disappeared even before the new study could draw it to the attention of passers-by is the arcade on the Lexington Avenue side of245 Park Avenue.

The 14,098-square-foot arcade generated a bonus of 42,294 square feet, more than a full floor of the 44-stOlY towel'. Now, about 65 feet of the arcade along Lexington Avenue, at the 46th Street corner, have been filled in. The owner, Brookfield Financial Properties, may put a restaurant there.

According to city planners, the rationale began with a calculation by Brookfield that mechanical space had increased in the building. Because mechanical space is not counted by zoning rules as floor area, that would technically have reduced the overall square footage of the building, thereby reducing the zoning bonus needed and, in turn, the commensurate amount of public space the owner is obliged to provide.

Brookfield said in a statement that it had to enlarge mechanical space in the 33-year-old building to meet tenants' needs for electric power and air-conditioning. "While that step decreases the amount of usable office space in the building and the public space allotment," the statement said, "it was essential to ensuring 245 Park's future as a Class A property and significant contributor to the city's tax rolls."

It is not the first time that such an alteration has been made to public space without public review. Speaking generally of the practice, Mr. Rose said: "Public space cannot vanish overnight because of a recalculation of floor area. These were agreements between the public and private sector.

"It's not hard to imagine such modifications to existing space serving the public interest," Mr. Rose said, "but the important thing is that the public have the right to review and approve such modifications."

The City Planning Department has filed three civil lawsuits and issued eight violation notices with the Environmental Control Board, an administrative tribunal.

The lawsuits are against 40 Broad Street, an office building downtown with a plaza from which the required benches, planters and trees have been removed; Parc East Towel', an apartment building at 240 East 27th Street, which has locked a midblock passageway to its mini-park and waterfall; and Worldwide Plaza on Eighth Avenue, between 49th and 50th Streets, where city officials say that the required chairs and tables have been appropriated by restaurants on the edge ofthe plaza.

Open-space advocates believe the study can be put to use at a grassroots level. Thomas Balsley, a landscape architect who has designed numerous public spaces, envisions a "plaza posse" of citizens and community groups that would monitor spaces and report problems to the city.

Complaints about plazas that are not open or that fail to provide required amenities can be made to the Buildings Department at (212) 227-7000, Monday through Friday, 8 a.m. to 5 p.m. The caller should press 2 at the prompt, refer to "public space" and be as specific as possible about the address and problem.

On Oct. 28, the Municipal Art Society will send out volunteers to update the field surveys, in an operation dubbed the Holly Watch, after the late William H. (Holly) Whyte, a student of urban open space. This event is tied into the society's exhibition, "The World's Most Expensive Public Space," at the Urban Center, 457 Madison Avenue, between 50th and sist Streets.

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Some results may be surprising. M. Barry Schneider, the chairman of Community Board 8 on the Upper East Side, has long been vexed by the locked gate to the garden of the Concorde, 220 East 65th Street. "It's a lovely plaza with a pool and rushing water and you can't get there from here," he said.

A glimpse at the survey, however, reveals that it is not the garden but a garage driveway that constitutes the public space.

l::!QI!l§ I J.J!lt~§J.º1?!9_~ I MªDlººLÇQD.!QI Copyngllt 2012 The New York Times Comgany I Privacy Policy 1M I Contact u.~I Work for Us"-I....S"'ite""M""'a"'p-L1",In",de""x,;;;bl"",'K""e""y..""or"'d --'

http://www.nytimes.com/2000/1 0115/realestate/public-realm-private-property-new-study-i... 2/15/2012 People v. Nunez, Docket No. 2011 NY 082891

Memorandum of Law of Amicus Curiae New York Civil Liberties Union

Exhibit E .,.

CITY PLANNING COMMISSION

September 19, 2007 I Calendar No. 21 N 070497 ZRY

IN THE MATTER OF an application submitted by the Department of City Planning pursuant to Section 201 of the New York City Charter for an amendment of the Zoning Resolution of the City of New York to revise provisions related to privately owned public plazas, Community District 4, Borough of the Bronx; Community District 2, Borough of Brooklyn; Community Districts l, 2, 3, 4, 5, 6, 8, Iû, 11, and 12, Borough of Manhattan; and Community Districts 2 and 12, Borough of Queens.

The application for an amendment of the Zoning Resolution was filed by the Department of City

Planning on May 31, 2007, to revise and update design and operational standards related to privately owned public plazas.

BACKGROUND

The first zoning regulations pennitting floor area bonuses in exchange for the construction of privately owned public plazas were adopted in 1961 and, since that time, over 250 such spaces have been created in Manhattan, Brooklyn, and Queens. While each of these spaces provides much- needed public open space in the dense commercial and residential districts of New York City, many of these plazas are deficient in their configuration, elevation, amenities, or other design features.

These deficiencies are at least partially attributable to the lack of specific design guidelines or outdated criteria regarding the design of successful public spaces.

Public plazas, the subject of this application, are a subset of a class of open spaces commonly termed Privately Owned Public Spaces (POPS). This term collectively refers to several types of PROPOSED ZONING TEXT AMENDMENT

TI1.eDepartment of City Planning has maintained detailed records of all bonus plazas created under the various zoning provisions and has continued to visit plazas and document their successes and shortcomings. This ongoing analysis of bonus plazas has revealed that, while the introduction of residential and urban plaza standards and gradual refinement of these guidelines has improved the quality of plazas, there are still numerous instances of plazas that lack basic amenities or exhibit design features that inhibit public use and enjoyment. For example, it is not unusual to find plazas that provide limited seating options, deliberately inhibit seating with spikes, and have obstructions that block visibility within the plaza area. These types of deficiencies are at least partially

attributable to outdated and inconsistent standards in the existing zoning text.

In addition, the zoning emphasizes a distinction between residential and urban plazas that is no

longer meaningful or useful. Residential plazas, while originally envisioned for residential

buildings in residential zoning districts, are increasingly provided in commercial districts that have

developed a strong mixed-use character such as Ladies' Mile and eastern Chelsea. Therefore,

regulations that were intended to distinguish between the unique needs of residential and

commercial user populations are no longer justified or appropriate.

TI1.eDepartment therefore proposes revisions to the standards for 1961 plazas, urban plazas, and

residential plazas and the creation of a new plaza type: the "public plaza". The proposed text

10 N 070497 ZRY People v. Nunez, Docket No. 2011 NY 082891

Memorandum of Law of Amicus Curiae New York Civil Liberties Union

Exhibit F 1

2 CITY COUNCIL

3 CITY OF NEW YORK 4 ------x 5 THE TRANSCRIPT OF THE MINUTES 6 of the 7 SUBCOMMITTEE ON ZONING 8 And FRANCHISES

9 ------x

10 October 9, 2007 11 Start: 10:05 a.m. Recess: 12:04 p.m. 12 City Hall 13 Committee Room New York, New York 14

15 B E F O R E:

16 TONY AVELLA Chairperson, 17

18 COUNCIL MEMBERS: Simcha Felder Eric Gioia 19 Robert Jackson Melinda Katz 20

24 LEGAL-EASE COURT REPORTING SERVICES, INC. 17 Battery Place - Suite 1308 25 New York, New York 10004 (800) 756-3410 14 maintained, less well used and frequently these are

15 the spaces that come to us with applications for

16 night time closing because of safety issues. The

17 lobby, for example, doesn't front on these spaces.

18 COUNCIL MEMBER KATZ: What is the out

19 provision? Let's just say that a building is

20 designed and I'm worried about this more in

21 other boroughs besides Manhattan. What are the out

22 provisions? A developer wants to put an open air

23 area in there. It would be good for the building.

24 The residents of the building think it's a good --

25 you know the future residents -- It would up the

l ZONING AND FRANCHISES

2 value for them. What's the out provision?

3 MR. BOTSFORD: The ultimate out

4 provision is a special permit which is available to

5 modify any of the design standards of public plazas

6 due to unique site conditions, for example. So if

7 there is an extraordinary circumstance where the

8 building entrance would need to be located elsewhere

9 that could be achieved via special permits.

la COUNCIL MEMBER KATZ: Any

Il extraordinary circumstances are defined by whom?

12 MR. BOTSFORD: Well the extraordinary 13 circumstances -- That's not actually in the zoning

14 regulation, that specific language. That was my

15 language.

16 COUNCIL MEMBER KATZ: Really? You

17 know I kind of though that.

18 So it would be a special permit

19 basically to the Council and have to go through the

20 whole process?

21 MR. BOTSFORD: Yes. Yes, full

22 process.

23 I'd also like to note that this isn't

24 also required that this be the only building

25 entrance. For example, there could be other

1 ZONING AND FRANCHISES

2 entrances that front on other streets.

3 COUNCIL MEMBER KATZ: I'm just

4 thinking that sometimes you want a plaza, even if

5 it's not in the perfect location.

6 The second thing that we talked about

7 is the barriers of the open air cafe. I understand

8 the idea of not wanting to cut it off, but my

9 concern came more so with the idea of painting the

10 ground in order to see that there's no creep out

11 into the plaza. Is that a requirement, or is that People v. Nunez, Docket No. 2011 NY 082891

Memorandum of Law of Amicus Curiae New York Civil Liberties Union

Exhibit G 125 Broad Street New York, NY 10004 Taylor Pendergrass 212,607,3300 Senior Staff Attorney NYCLU 212,607,3318 Direct Line: 212,607,3344 NEW YORK CIVIL LIBERTIES UNION www,nyclu,org tpendergrass@nyclu,org

HAND DELIVEREDANDSENTVIA FIRSTCLASSMAIL

January 9, 2012

Commissioner Robert LiMandri Department of Buildings 280 Broadway, 7th floor New York, NY 10007

Re: Violations at 1 Liberty Plaza

Dear Commissioner LiMandri:

The New York Civil Liberties Union, the Center for Constitutional Rights, and the National Lawyers Guild's New York City chapter write regarding the ongoing violations of city law at 1 Liberty Plaza (165 Broadway), owned and managed by Brookfield Office Properties, Since November 15, 2011, metal barricades have encircled the perimeter of Liberty Plaza, In addition, members of the public are subject to ad hoc, arbitrary and inconsistent rules and conditions restricting their use of the park, These practices have substantially modified Liberty Plaza, making it a wholly inhospitable space for the public, Putting aside for the moment the serious constitutional concerns raised by these practices, it is abundantly clear that such restrictions are in direct conflict with zoning laws, Brookfield's legal obligations under a 1968 special zoning permit, and longstanding City policy, These restrictions significantly interfere with the public's use of Liberty Plaza on an ongoing and daily basis, and should be ended immediately,

A, Laws governing Liberty Plaza require unobstructed public access and prior approval of design modifications,

By the terms of a March 20, 1968 special zoning permit, the owner of 1 Liberty Plaza gained valuable zoning concessions in exchange for constructing and maintaining what is now Liberty Plaza as a "permanent open park" for the "public beneñt.'" Under City zoning laws, Liberty Plaza is defined as a "public plaza," and one over five hundred privately owned public spaces ("POPS") in New York City,2 Under these laws, at least 50% of the sidewalk frontage of a public plaza must be free of obstruction, and circulation paths must connect to each of the street

1 City of New York Special Zoning Permit, CP-20222, No, 4, p,21S (March 20, 1968),

2 NYCZoning Resolution § 12-10,

The New York Affiliate of the American Civil Liberties Union I Jonathan Horn, President I Donna Lieberman, Executive Director frontages.' In addition, any proposed modifications to public plaza's design must first go through an approval process before those changes can be made."

Furthermore, an owner's ability to restrict the public's use of a public plaza is constrained by zoning laws and by City policy. An owner of a public plaza may not, of course, forbid conduct in public plazas that is otherwise protected by the constitution. In addition, an owner "shall not prohibit behaviors that are consistent with the normal public use of a public plaza.:" Any other restrictions an owner seeks to impose on the public's ability to use or accessa public plaza must be "reasonable," pursuant to long established City pollcv." Finally, any prohibition on conduct in a public plaza must be clearly posted in wrlttng,"

B. Blocking Access to Nearly All of Liberty PlazaViolates City Zoning Law and Brookfield's Legal Obligations.

For nearly two months public ingress and egress to Liberty Plaza has been blocked by metal barricades encircling the public plaza. The public is only able to enter and exit Liberty Plaza at two gaps, and at these points members of the public have been subject to searches of their personal belongings by security personnel."

As noted above, to ensure the public's ability to freely enter and exit public plazas, zoning law requires that at least 50% of Liberty Park's frontage be unobstructed, and also mandates unrestricted access to and from circulation paths. The metal barricades encircling Liberty Plaza enclose far more than 50% of the frontage and block access to major nearby walkways, in violation of zoning laws.

In addition, a barricaded encirclement patrolled by security personnel seriously interferes with the public's use and enjoyment of Liberty Plaza, in violation of Brookfield's legal obligation to maintain the space as a permanent open park. Any member of the public would be reluctant or unwilling to enter an area closed in by metal barricades with only two exits. This modification presents even more serious safety concerns when large numbers of people are attempting to enter or exit the park through two narrow gaps in the barricades. The barricades have all but ended Liberty Plaza's role as a functioning public plaza.

3 NYCZoning Resolution §§ 37-721; 37-723; 37-726.

4 NYCZoning Resolution §§ 37-62 et. seq; 37-78; 74-91.

5 NYCZoning Resolution § 37-752.

6 The New York City Department of City Planning, Jerold S. Kayden, and the Municipal Art Society of New York, Privately Owned Public Space: The New York City Experience (John Wiley & Sons, 2000), p.38 (liThe Department of City Planning has taken the position that an owner may prescribe 'reasonable' rules of conduct").

7 NYCZoning Resolution § 37-73 et. seq.

8 Security personnel at Zuccotti Park at various times have included NYPD officers, off-duty NYPD officers employed by Brookfield, and private security staff employed by Brookfield, who often act in concert with, take direction from, and rely upon, NYPD officers.

Page 2 of 4 Finally, the barricades constitute a major design modification to Liberty Plaza-and as their presence at the park approaches two months, a seemingly permanent one-that circumvented the approval process required before the design of a public plaza can be altered. The barricades should be removed immediately.

C. Constantly-Changing Unwritten Rules Unreasonably Restrict the Public's Use of Liberty Plaza in Violation of City Law.

Brookfield has purported to adopt written "rules of conduct" governing Liberty Plaza. The manner in which these rules were adopted raise serious constitutional concerns, as do the rules themselves." Even assuming these regulations could be validly enforced, however, security personnel go far beyond these written rules by selectively enforcing ever-shifting and unwritten ad hoc prohibitions. These unjustifiable restrictions are a serious, ongoing and daily infringement on use of the public plaza.

At the heart of these restrictions is the assertion of security personnel that certain items are prohibited in the park. The written "rules of conduct" do not, of course, prohibit any particular item from entering Liberty Plaza. Instead, consistent with zoning laws, the written rules forbid only conduct. These rules do not, and could not, entitle security personnel to turn an individual away from a public plaza simply because he or she has a personal item that security personnel speculate might be potentially used to engage in prohibited conduct sometime in the future.

Nevertheless, security personnel have declared that certain personal possessions are prohibited in Liberty Plaza. The unwritten list of prohibited items varies daily and is wildly inconsistent. Individuals have been refused entry for possessing food, musical instruments, yoga mats, cardboard signs, shawls, blankets, "prohibited containers," chairs, bags of varying sizes, and numerous other personal items. To effectuate the enforcement of the unwritten list of "prohibited items," security personnel have stopped individuals attempting to enter Liberty Plaza and forced them to submit to a search of their personal belongings. Individuals who refused to permit their personal belongings to be searched have been prohibited from entering the public plaza.

Almost all the items that have been prohibited in Liberty Plaza-signs, bags, containers, food, musical instruments, etc.-have also been allowed to enter the park at other times. Who is searched and what is prohibited is arbitrary and inconsistent. It varies by the day, the type of activity in the park at the time, the attire of the person attempting to enter, and the caprice of security personnel.

The inconsistent and selective enforcement of unwritten and constantly changing rules, and preemptive searches of individuals attempting to enter the park, violates the terms of the special zoning permit which obligates Brookfield to maintain Liberty Plaza as a permanent open park for the public benefit. These practices also violate zoning laws by prohibiting behavior that

9 In addition, as written and posted by Brookfield, the rules appear to violate City zoning laws governing the manner and form for "prohibition signs". See N.Y. Zoning Resolution §§ 37-747; 37-751; 37-752.

Page 3 of 4 is normally permitted in public plazas. Finally, selectively enforcing unwritten rules is patently unreasonable, and therefore violates longstanding New York City policy constraining the type of regulations on conduct an owner may adopt in a public plaza.

***

Metal barricades, preemptive searches, and selectively enforcing ever-changing unwritten rules have become established features of Liberty Plaza. These practices infringe on clearly established constitutional rights, and they also violate zoning laws, Brookfield's legal obligations under the 1968 special zoning permit, and City policy. As the Mayor has noted with regard to lO Liberty Plaza, "we must never be afraid to insist on compliance with our laws." These practices violate city law and should be ended immediately, restoring Liberty Plaza to its place as a permanent open park that is open and accessible to all members of the public on an equal basis.

We request a prompt final determination from the Department of Buildingsll and/or any other appropriate New York City agency, in writing, with regard to this complaint.

Sincerely, <1-f- 'P-â--

Taylor Pendergrass Senior Staff Attorney New York Civil Liberties Union

Baher Amzy Legal Director Center for Constitutional Rights

Gideon Orion Oliver President National Lawyers Guild, New York City Chapter

10 Statement of Mayor Michael R. Bloomberg on Clearing and Re-Opening of Zuccotti Park (Nov. 15, 2011).

11 NYCCharter § 643 (Department of Buildings "shall administer and enforce" zoning laws); NYCZoning Resolution § 71-00 (same); NYCZoning Resolution § 37-78(d) (an owners' failure to comply with requirements applicable to public plazas "shall constitute a violation" of zoning laws and Department of Buildings may enforce the violation by revocation of building permit, revocation of certificate of occupancy, or any "other applicable remedies").

Page 4 of 4 People v. Nunez, Docket No. 2011 NY 082891

Memorandum of Law of Amicus Curiae New York Civil Liberties Union

Exhibit H COMMUNITY BOARD #1 - MANHATTAN RESOLUTION

DATE: OCTOBER 25,2011

COMMITTEES OF ORIGIN: QUALITY OF LIFE AND FINANCIAL DISTRICT

QUALITY VOTE COMMITTEE VOTE: 8 In Favor O Opposed O Abstained O Recused

FINANCIAL DISTRICT COMMITTEE VOTE: 5 In Favor O Opposed O Abstained O Recused

PUBLIC MEMBERS: 2 In Favor O Opposed O Abstained O Recused

BOARD VOTE: 33 In Favor 3 Opposed 1 Abstained O Recused

RE: Occupy Wall Street protest in Zuccotti Park

WHEREAS: Community Board 1 (CB 1) supports Occupy Wall Street's (OWS) First Amendment right to protest, and

WHEREAS: CB 1 supports OWS's First Amendment right to free assembly, and

WHEREAS: CB 1 has previously been on record twice as supporting extension of the "millionaire's tax" to offset budget cuts to education, an issue that has also been raised by many in OWS, and

WHEREAS: CB I opposes the use of excessive and unnecessary force by the City of New York and/or Brookfield Office Properties to address this situation, and

WHEREAS: CB 1 believes that preserving Constitutional rights and also proactively addressing the increasing frustration among many local residents and small businesses regarding health, public safety, noise, sanitation and other community concerns are in no way mutually exclusive, and indeed both can be accomplished, and

WHEREAS: CBl is concerned that the magnitude of the situation at Zuccotti Park is not being fully documented because calls to 311 have been turned away on the grounds that the NYPD is already aware of the situation; now THEREFORE BEIT RESOLVED THAT: CB 1 calls on OWS, the City of New York, all elected officials representing Lower Manhattan, Brookfield Properties and all major stakeholders to come together to address the following issues which are adversely affecting quality of life in this community:

l) Limit use of drums, trumpets, tambourines, bugles, air homs, shouting and chanting, and all other sources of noise to two hours per day, in midday. 2) Arrange access to bathrooms off-site, and eliminate use of retail shops and residential building doorways as bathroom facilities. 3) Enforce previously declared commitments by OWS to adopt all of the provisions of the Good Neighbor Policy (attached) that have been previously agreed to in eight prior meetings with OWS over the past four weeks. 4) Work with local small businesses to address economic impacts. 5) CB 1 requests a meeting with NYPD as soon as possible to discuss the necessity for extensive deployment of pedestrian barricades in the central Financial District, and the removal of all except those deemed absolutely necessary for security and public safety. 6) CB 1 urges the NYC Department of Information Technology and Telecommunications to establish a consistent policy of accepting, recording, tracking and referring to the appropriate city agencies all 311 calls regarding disturbances in and around Zuccotti Park. People v. Nunez, Docket No. 2011 NY 082891

Memorandum of Law of Amicus Curiae New York Civil Liberties Union

Exhibit I Office of Manhattan Borough II~ President Scott M. Stringer 1 Centre Street, 19th Floor New York, NY 10007

ph. 212-669-8300 fax. 212-669-4305 Search ... In

Name Zip Statement by BP Stringer, Congressman Nadler, and State Senator Squadron upon Passage Email of a Community Board 1 Resolution Regarding Occupy Wall Street

Last week, we called on Brookfield to delay its clean-up of the park to allow for dialogue and, ultimately, a long-term solution that works for the corn munity and protects the First Amendment rights of OWS.

Tonight's Corn m unity Board resolution is an attempt to establish a sens ible framework that respects the protesters' fundamental rights while addressing the very real quality of life concerns for res idents and bus inesses around Zuccotti Park. Protecting the needs of Lower Manhattan and the rights of OWS do not need to be mutually exclusive.

We must all work together to make that framework a reality.

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Office of Manhattan Borough President scott M, Stringer' 212.GG9.S:100 'I Centro Street, '19th Floor' New York, NY 10007 ,@ Cop)~'ight 2006 Search .., The Manhattan Borough President's Office is an Equal Opportunity Employer. Citywide Privately Owned Public Space

Current Public Plaza Standards

The 2007 zoning text amendment made significant changes to the design standards for privately owned public plazas. Previous standards for urban and residential plazas were replaced with a new set of design standards that apply to all privately owned public plazas.

For the full zoning text related to the public plaza design standards, which includes the 2009 follow-up text amendment, please read Article III Chapter 7 Section 70 of the New York City Zoning Resolution.

1. Privately Owned Public Spaces 2. Current Public Plaza Standards 3. History 4. 2007 Text Amendment 5. 2009 Follow-up Text Amendment 6. Inventory

For further information see website at : http://www.nyc.gov/html/dcp/html/pops/plaza_standards.shtml#hours Ethics Materials

Within Each Lawyer’s Conscious a Touchstone: Law, Morality, and Attorney Civil Disobedience, by Robert M. Palumbos, 153 University of Pennsylvania Law Review 1053

Lawyering for Social Change, Karen L. Loewy, 27 Fordham Urban Law Journal 1869

WITHIN EACH LAWYER’S CONSCIENCE A TOUCHSTONE: LAW, MORALITY, AND ATTORNEY CIVIL DISOBEDIENCE

† ROBERT M. PALUMBOS Lawyers, like all citizens, inevitably face conflicts between their responsibility to the law and their moral obligations. Attorneys, however, have a unique range of options for resolving such conflicts. They not only have power and privilege in the legal system that other citizens lack, but they also assume a heightened duty to that system and to the law. As the Model Code of Professional Responsibility states, “[t]o lawyers especially, respect for the law should be more than a platitude.”1 Civil disobedience has become an accepted method for citizens to resist the authority of the state on moral grounds.2 By committing civil disobedience3 and willingly accepting judicial punishment, one can protest the moral content of a law while still respecting the legal duty it imposes. This Comment addresses whether the current rules of professional ethics leave the option of civil disobedience available to attorneys, and asks under what circumstances attorneys may be justified in exercising that option.

† B.A. 1999, The Johns Hopkins University; M.A. 1999, The Johns Hopkins Univer- sity; J.D. Candidate 2005, University of Pennsylvania. I would like to thank Professor Geoffrey C. Hazard, Jr. for offering his thoughts as I shaped this Comment. I am also grateful to Steve Bero, Melanie McMenamin, and Indraneel Sur for their extraordinarily helpful thoughts on a draft of this Comment. 1 MODEL CODE OF PROF’L RESPONSIBILITY EC 1-5 (1980). 2 See In re Eastburn, 914 P.2d 1028, 1029 (N.M. 1996) (per curiam) (“Civil disobedience, militant protest, inflammatory rhetoric, and other forms of resistance to established authority have had an important role in the history of democracy.”); Lindsey Cowen, The Lawyer’s Role in Civil Disobedience, 47 N.C. L. REV. 587, 587 (1969) (“[I]t appears that most persons who have written on the subject believe that under certain circumstances conduct that is illegal, and therefore punishable by the state, may nevertheless be morally justified.”); Monroe H. Freedman, Legal Ethics from a Jewish Perspective, 27 TEX. TECH L. REV. 1131, 1138 (1996) (noting that the author, a law professor, supported civil disobedience against the Vietnam War and himself committed civil disobedience); William H. Pryor, Jr., Christian Duty and the Rule of Law, 34 CUMB. L. REV. 1, 8 (2003) (implying that the author, the sitting Attorney General of Alabama, believed civil disobedience was justified under certain circumstances to protest unjust laws). 3 I will use “civil disobedience,” “conscientious noncompliance,” and other related terms interchangeably to refer to “the violation of law by nonviolent means where opposition to the law is based on a deeply held conviction that the law itself is in conflict with some higher principle.” Robert B. McKay, Civil Disobedience: A New Credo?, 2 GA. L. REV. 16, 19 (1967).

(1057) 1058 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 153: 1057

Attorney civil disobedience is hardly novel. The man who fa- mously demonstrated the power of civil disobedience to the world, Mohandas Gandhi, was trained in the English common law system and practiced law for more than twenty years.4 Far from being an obstacle to moral reform, Gandhi’s legal training was instrumental in the development of nonviolent resistance to British imperial control of In- dia. Gandhi maintained a very lawyerly respect for the law and the legal system even as he defied it.5 This Comment explores the extent to which the American bar has accepted Gandhi’s example of reform for its own lawyers. After reviewing the moral and philosophical justifications for civil disobedience in Part I, I will examine the codes of professional ethics6 and related case law in Part II to determine the position of the organized bar on attorney civil disobedience. This discussion makes clear that, despite the bar’s insistence in its official rules that its members obey and respect the law, there is a measure of unofficial tolerance for conscientious noncompliance by lawyers. Unfortunately, it remains uncertain from the application of the ethics rules how far this tolerance goes. Part III addresses normative arguments for and against permitting lawyers to engage in civil disobedience in light of the legal profession’s relationship to law and society. I argue that the main criticisms of attorney civil disobedience overlook key elements of the bar’s relationship to the law, to the public, and to the legal system. While lawyers should be cognizant of a heightened responsibility to obey the law, the theoretical and practical arguments in favor of allowing them to commit civil disobedience, under some circumstances, are stronger than those in opposition.

4 John Leubsdorf, Gandhi’s Legal Ethics, 51 RUTGERS L. REV. 923, 923 (1999). 5 See id. at 938-39 (describing the respect with which Gandhi submitted himself to the law’s judgment as an important part of his philosophy). 6 Unless otherwise specified, I will use the terms “codes of ethics” or “ethics rules” to refer collectively to the Model Code of Professional Responsibility (Model Code) and the Model Rules of Professional Conduct (Model Rules), promulgated by the American Bar Association and now binding in most states. See ABA COMPENDIUM OF PROF’L RESPONSIBILITY RULES AND STANDARDS 637 (2004) [hereinafter ABA COMPENDIUM] (listing the forty-five jurisdictions that have adopted the Model Rules). Though the Model Rules superceded the Model Code in 1983, I will consider both the Model Code and the Model Rules in this Comment. The Model Code remains relevant because “many provisions of the Model Rules are based on provisions of the Code.” NATHAN M. CRYSTAL, AN INTRODUCTION TO PROFESSIONAL RESPONSIBILITY 7 (1998). In addition, prior court decisions based on the Model Code still hold true under the Model Rules. Id. Thus, discussing the approach of the Model Code towards attorney civil disobedience provides a broader and more accurate view of the bar’s attitude on this issue. 2005] WITHIN EACH LAWYER’S CONSCIENCE 1059

Finally, in Part IV, I will elaborate on the circumstances in which attorney disobedience is justified. I propose to amend the rules of legal ethics to acknowledge explicitly that attorneys should subject the law to some personal moral scrutiny. By recognizing that moral obligations may overcome legal duties, the canons of legal ethics will strengthen an important safeguard against injustice. However, since it is appropriate that attorneys exercise a greater degree of caution than other citizens before committing civil disobedience, the rules should establish clear consequences for justified noncompliance. Currently, attorneys face a high-stakes gamble as to how the bar’s disciplinary bodies will respond to their disobedience. Leaving their careers to the whims of the profession’s disciplinary discretion makes the cost of attorney civil disobedience too high. Yet, imposing some professional consequences on attorneys is appropriate because it will make them evaluate more rigorously the principle for which they are willing to break the law and consider the social costs of their disobedience.

I. THE PURPOSES OF AND JUSTIFICATIONS FOR CIVIL DISOBEDIENCE

The concept of justified civil disobedience has deep roots in our jurisprudence and has survived challenges to its philosophical foundations.7 Traditional natural law theory, which has influenced Western legal tradition for centuries,8 posits a necessary connection between law and morality.9 Best illustrated by St. Augustine’s proposition that “an unjust law is no law at all,”10 natural law theory claims that a law

7 See United States v. Dorrell, 758 F.2d 427, 435 (9th Cir. 1985) (Ferguson, J., concurring) (“Civil disobedience has a long heritage in this country, beginning as far back as the Boston Tea Party.”). 8 See JEFFRIE G. MURPHY & JULES L. COLEMAN, PHILOSOPHY OF LAW: AN INTRODUCTION TO JURISPRUDENCE 12-14 (rev. ed. 1990) (describing the development of natural law theory by Plato, Aristotle, Cicero, and St. Thomas Aquinas, as well as its reformulation by the thinkers of the Enlightenment and the French and American Revolutions). 9 See id. at 11 (“Natural law theories maintain that there is an essential (conceptual, logical, necessary) connection between law and morality. . . . [A]ccording to natural law theory, it is part of the very meaning of ‘law’ that it passes a moral test.”); see also LARRY ALEXANDER & EMILY SHERWIN, THE RULE OF RULES: MORALITY, RULES, AND THE DILEMMAS OF LAW 184 (2001) (describing the natural law proposition that “law must be essentially connected with morality”). 10 AUGUSTINE, ON FREE CHOICE OF THE WILL 8 (Thomas Williams trans., Hackett Publ’g Co. 1993) (ca. 395). This quote has been called a “slogan” of natural law, see MURPHY & COLEMAN, supra note 8, at 11, and was used by Martin Luther King, Jr., to justify his own civil disobedience, see MARTIN LUTHER KING, JR., Letter from Birmingham Jail, in WHY WE CAN’T WAIT 76, 82 (1964), available at http://www.stanford.edu/ 1060 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 153: 1057 lacking moral legitimacy is not legally valid.11 Legal positivism, which grew out of the Enlightenment in reaction to natural law theory,12 sev- ered the essential link between law and morality.13 Whereas natural law theory understands legal validity as a normative category, positivism treats it as a purely descriptive one. Positivists look to a law’s pedigree—not its moral content—to determine its legal legitimacy.14 Valid laws are those issued by the sovereign in accordance with the “rule of recognition” of the legal system.15 They impose an obligation on citizens to obey, and they become a standard within the society for criticizing and justifying behavior.16 It was against the background of the debate between natural law and positivism that Henry David Thoreau, the “father” of modern-day civil disobedience,17 developed his understanding of one’s right to break the law. Thoreau accepted the positivist perspective that morally repugnant laws were still legally binding, but claimed that his group/King/popular_requests/frequentdocs/birmingham.pdf (last visited Dec. 31, 2004). 11 ALEXANDER & SHERWIN, supra note 9, at 187 (characterizing the natural law perspective that laws “can be normative in the way they claim only if they are consistent with moral norms”). 12 MURPHY & COLEMAN, supra note 8, at 19. Enlightenment figures such as Tho- mas Hobbes and Immanuel Kant shifted jurisprudential inquiry away from natural law theory and laid the groundwork for John Austin’s system of positivism. See THOMAS HOBBES, LEVIATHAN 185 (Richard Tuck ed., Cambridge Univ. Press 1991) (1651) (“[E]very subject in a Common-wealth . . . hath covenanted to obey the Civill [sic] Law”); IMMANUEL KANT, THE METAPHYSICS OF MORALS 55 (Mary Gregor trans., Cam- bridge Univ. Press 1991) (1797) (arguing that one can inquire into what is legal without inquiring into what is moral). 13 See ALEXANDER & SHERWIN, supra note 9, at 188 (describing the positivist position as one that recognizes the sovereign’s rules as law even if those rules are “terribly immoral”); H.L.A. HART, THE CONCEPT OF LAW 185-86 (2d ed. 1994) (defining positivism as “the simple contention that it is in no sense a necessary truth that laws repro- duce or satisfy certain demands of morality”). 14 See MURPHY & COLEMAN, supra note 8, at 22 (noting Austin’s argument that under positivism “the legal is distinguished from the nonlegal in terms of pedigree,” not morality). 15 See HART, supra note 13, at 100 (“Wherever such a rule of recognition is accepted, both private persons and officials are provided with authoritative criteria for identifying primary rules of obligation.”); cf. 1 JOHN AUSTIN, LECTURES ON JURISPRUDENCE 6-11 (Robert Campbell ed., Jersey City, Frederick D. Linn & Co. 1875) (arguing that laws are commands by the sovereign backed by threat of force, not moral authority). 16 See HART, supra note 13, at 55-56 (noting that a law, unlike a custom or habit, becomes a measure for criticizing behavior and a justification for demanding certain actions). 17 Cowen, supra note 2, at 588 n.6; Kenneth Jost, Opinion, Oliver North and the Son of Sam, CHRISTIAN SCI. MONITOR, Nov. 4, 1991, at 18. 2005] WITHIN EACH LAWYER’S CONSCIENCE 1061 moral obligations could nevertheless outweigh his duty to obey the law.18 Arguing that even a just government authorized by “the sanction and consent of the governed” had “no pure right over [his] person and property,”19 Thoreau chose to withhold his taxes and accept imprisonment rather than fund the government’s support for slavery and its engagement in the Mexican War.20 Thus was born the modern concept of civil disobedience, under which “[p]ersons are thought to be justified in violating the law if, but only if, they are prepared to be punished for their disobedience.”21 Positivism remains, by and large, the dominant American approach toward legal ethics today.22 Nevertheless, the history of the twentieth century strongly impressed upon Western culture the tragic potential of obeying laws merely because they are legally valid. We fear what William Simon described as the “nightmarish slippery slope of Positivism” that “leads to compliance with jurisdictionally adequate but morally evil laws like the Nazi enactments requiring reporting Jews and dissidents or the antebellum Fugitive Slave Laws.”23 We have seen

18 See HENRY DAVID THOREAU, WALDEN AND CIVIL DISOBEDIENCE 231 (Owen Thomas ed., W.W. Norton & Co. 1966) (1849) (declaring that it is better to break the law than to be the “agent of injustice” through one’s obedience). 19 Id. at 243. 20 See id. at 228 (discussing the need to “do justice to the slave and to Mexico”); see also United States v. Dorrell, 758 F.2d 427, 435 (9th Cir. 1985) (Ferguson, J., concurring) (“Some, like Thoreau, chose to refrain from society’s fundamental obligation to pay taxes for the common benefit in order to express their repugnance to a government that fostered slavery.”). 21 HEIDI M. HURD, MORAL COMBAT 274-75 (1999); see also KING, supra note 10, at 83-84 (“I submit that an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law.”); Pryor, supra note 2, at 8 (contrasting civil disobedience, in which the individual accepts punishment, with lawbreaking in which an individual seeks to evade punishment). 22 Cf. WILLIAM H. SIMON, THE PRACTICE OF JUSTICE: A THEORY OF LAWYERS’ ETHICS 37 (1998) (“Legal ethics is the only area in which [practicing lawyers] continue to cling to [the positivist approach].”) Few would seriously argue the traditional natural law position that an unjust law lacks legal validity. See MURPHY & COLEMAN, supra note 8, at 7, 11-12 (criticizing natural law theory for insisting that “no rule can count as law unless what it requires is at least morally permissible” and thus failing to realize the obvious fact that “law and morality are in some sense different even if closely related”); David Luban, Conscientious Lawyers for Conscientious Lawbreakers, 52 U. PITT. L. REV. 793, 801 (1991) (noting that “natural law theories are quite out of favor with contemporary lawyers”). 23 William H. Simon, Should Lawyers Obey the Law?, 38 WM. & MARY L. REV. 217, 224 (1996); see also Maura Strassberg, Taking Ethics Seriously: Beyond Positivist Jurisprudence in Legal Ethics, 80 IOWA L. REV. 901, 916-17 (1995) (recounting the argument that “the 1062 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 153: 1057 the reality of legal regimes that were so unjust that noncompliance with them became, to some, a moral obligation superceding the legal duty to obey the law.24 Modern advocates of positivism have recognized the need for some moral inquiry into a citizen’s duty to the law, noting that “the certification of something as legally valid is not conclusive of the question of obedience.”25 Consequently, though mainstream American society rejects classical natural law theory, it also re- sists a categorical duty to obey valid laws26 and recognizes civil disobedience as a valid form of protest and a valid democratic check on unjust laws.27 Though the right of citizens to engage in civil disobedience is widely accepted, it remains highly contested whether attorneys have (or should have) the same right.28 This is clearly a significant question for our society generally and for lawyers in particular. Attorneys enjoy unique privilege and power within the judicial system; their rights, status, and actions inherently affect our legal environment in ways that those of other citizens do not. Our willingness as a society—and the bar’s willingness as a profession—to tolerate attorney noncompliance

actions of the German legal community under the Nazis resulted from the modern positivist attempt to maintain the distinction between legal and moral validity”). 24 See KING, supra note 10, at 84 (justifying the violation of unjust laws in Nazi Germany and communist countries); Stephen Ellmann, To Live Outside the Law You Must Be Honest: Bram Fischer and the Meaning of Integrity, 26 N.C. J. INT’L L. & COM. REG. 767, 768-70 (2001) (describing lawbreaking by judicial actors within the South African apartheid system). 25 See HART, supra note 13, at 210 (“[Men] should preserve the sense that the certification of something as legally valid is not conclusive of the question of obedience, and that . . . its demands must in the end be submitted to a moral scrutiny.”). 26 Id.; Simon, supra note 23, at 228 (“Mainstream American legal culture incorporates both Positivist and Substantive perspectives, giving emphasis to one or the other in some areas, while trying awkwardly to synthesize them in others.”); Strassberg, supra note 23, at 905 (stating Ronald Dworkin’s position that “recognizing the inherent legitimacy of much civil disobedience is fundamental to overcoming the separation between law and morality”). 27 See supra note 2. 28 Compare David Luban, Legal Ideals and Moral Obligations: A Comment on Simon, 38 WM. & MARY L. REV. 255, 259 (1996) (“[B]ecause lawyers are often better positioned than nonlawyers to realize the unfairness or unreasonableness of a law, lawyers often should be among the first to violate or nullify it, or to counsel others that it is acceptable to violate or nullify it.”), and Simon, supra note 23, at 218 (arguing that the dominant view on legal ethics is skewed far too heavily in the positivist direction, restricting a lawyer’s ability to facilitate a moral outcome), with Timothy P. Terrell, Toward Duty- Based Lawyering?: Rethinking the Dangers of Lawyer Civil Disobedience in the Current Era of Regulation, 54 ALA. L. REV. 831, 834-35 (2003) (claiming that lawyer civil disobedience should be discouraged because it necessarily undermines the legal system’s claim to legitimacy). 2005] WITHIN EACH LAWYER’S CONSCIENCE 1063 illuminate the American attorney’s relationship to the law in several ways. First, the acceptability of civil disobedience by lawyers necessarily reflects a judgment about the interests that attorneys represent. Our position on this issue reveals whether we view lawyers purely as agents mediating the respective interests of their clients and the state, or whether we also consider them accountable to society for broader moral interests. Second, since one justification for civil disobedience is that there is a personal right to violate the law out of moral obligation,29 forbidding attorney noncompliance strips lawyers of a prerogative that has come to be understood as a basic element of citizenship. It is prudent to recognize explicitly whether this sacrifice is one of the collateral effects of the decision to be an attorney. Third, since lawyers are among the primary actors implementing the state’s edicts, their capacity to disobey unjust or evil laws is particularly relevant to our concern about the slippery slope of positivism.30 Given the powerful role of attorneys in the legal system—both practical and symbolic—their acts of noncompliance will almost certainly have a greater impact (for good and bad) than those of other citizens. Finally, the issue of lawyer civil disobedience potentially re- stricts the type of laws that can be justifiably disobeyed. Since there are some legal obligations imposed only on attorneys by virtue of their profession,31 these rules may only be disobeyed by attorneys.32 A determination that lawyer disobedience is prohibited would mean that these laws are not considered susceptible to noncompliance, a proposition that contradicts our society’s general acceptance of the concept of civil disobedience.

29 Cf. United States v. Sisson, 297 F. Supp. 902, 910 (D. Mass. 1969) (“When the state through its laws seeks to override reasonable moral commitments it makes a dan- gerously uncharacteristic choice.”); THOREAU, supra note 18, at 243 (“[T]o be strictly just, [government] must have the sanction and consent of the governed. It can have no pure right over my person and property but what I concede to it.”). 30 See Strassberg, supra note 23, at 916 (noting that “judges and lawyers obeyed and enforced [the] ‘valid’ laws” of Nazi Germany). 31 See, e.g., PA. RULES OF PROF’L CONDUCT 1 (2001) (establishing legally binding rules of professional responsibility for attorneys admitted to the Pennsylvania bar). 32 See, e.g., 1 GEOFFREY C. HAZARD, JR. & W. WILLIAM HODES, THE LAW OF LAWYERING § 9.20 (3d ed. Supp. 2003) (noting that under the original Model Rule 1.6(b)(1) (amended in 2002, see infra note 57), a lawyer would have had to violate the requirement of client confidentiality in order to save a life, and suggesting that an attorney in this situation would be justified in engaging in civil disobedience). 1064 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 153: 1057

II. THE TREATMENT OF ATTORNEY CIVIL DISOBEDIENCE UNDER THE CODES OF PROFESSIONAL ETHICS

Lawyer civil disobedience differs from that of other citizens because attorneys are subject to binding professional rules of ethics to which they alone must answer.33 This fact allows for attorney civil disobedience in two possible forms: (1) violations of substantive law, and (2) violations of binding professional ethics requirements.34 With respect to the former, attorneys, like all other citizens, are subject to criminal liability. Unlike other citizens, however, attorneys also face potential punishment under their codes of ethics for such lawbreaking.35 The latter form of civil disobedience is available only to lawyers and punishable under professional disciplinary rules, not the criminal law.36 This discussion will not distinguish between the two forms of lawyer disobedience because the operative question is the same for both types: what are the consequences to an attorney under the codes of professional ethics for conscientiously violating legally binding rules?37

33 See Strassberg, supra note 23, at 904 (“In all fifty states, lawyers are governed and will continued [sic] to be governed by positive rules.”). 34 See Mary C. Daly, To Betray Once? To Betray Twice?: Reflections on Confidentiality, A Guilty Client, an Innocent Condemned Man, and an Ethics-Seeking Defense Counsel, 29 LOY. L.A. L. REV. 1611, 1628-29 (1996) (describing violation of ethics rules for moral reasons as civil disobedience). 35 See infra text accompanying notes 39-46 (describing the characterization of lawbreaking by attorneys as misconduct under professional norms). 36 See MODEL CODE OF PROF’L RESPONSIBILITY EC 7-1 (stating that the “bounds of the law” include enforceable professional regulations in addition to substantive law); see also supra note 32 (describing an attorney’s breach of client confidentiality as potential civil disobedience). 37 There is a significant body of literature that discusses the professional ethics problems an attorney faces while representing clients contemplating civil disobedience, including: Geoffrey C. Hazard, Jr., How Far May a Lawyer Go in Assisting a Client in Legally Wrongful Conduct?, 35 U. MIAMI L. REV. 669 (1981); Luban, supra note 22, at 793-98; Martha Minow, Breaking the Law: Lawyers and Clients in Struggles for Social Change, 52 U. PITT. L. REV. 723 (1991); Joel S. Newman, Legal Advice Toward Illegal Ends, 28 U. RICH. L. REV. 287 (1994); Stephen L. Pepper, Counseling at the Limits of the Law: An Exercise in the Jurisprudence and Ethics of Lawyering, 104 YALE L.J. 1545 (1995). Such representation could theoretically constitute attorney disobedience to the ethical codes, which prohibit lawyers from counseling or assisting a client “in conduct that the lawyer knows is criminal.” MODEL RULES OF PROF’L CONDUCT R. 1.2(d) (2003); see also MODEL CODE OF PROF’L RESPONSIBILITY DR 7-102(A) (“[A] lawyer shall not . . . [c]ounsel or assist his client in conduct that the lawyer knows to be illegal . . . .”). These representational issues, however, are largely beyond the scope of this Comment. Though they might be characterized as questions about attorney disobedience to the rule of law, these issues involve very thorny problems of client autonomy, role morality, and the attorney’s gatekeeper function in the legal system. See, e.g., DAVID LUBAN, LAWYERS AND JUSTICE: 2005] WITHIN EACH LAWYER’S CONSCIENCE 1065

The codes of ethics present a striking obstacle to answering this question. The ethics rules impose seemingly conflicting duties on lawyers with respect to civil disobedience.38 On the one hand, the codes state in no uncertain terms that lawyers have a “duty to uphold legal process”39 and to show respect for the law by obeying it.40 Both the Model Rules of Professional Conduct (Model Rules) and the Model Code of Professional Responsibility (Model Code) explicitly define professional misconduct to include illegal actions. The Model Code states that a “lawyer shall not . . . [e]ngage in illegal conduct involving moral turpitude” or “any other conduct that adversely reflects on his fitness to practice law.”41 The Code warns against “even minor violations of law by a lawyer,”42 and holds attorneys responsible for the law at all times, regardless of whether they are acting in their professional or personal capacities.43 The Model Rules establish that it is

AN ETHICAL STUDY 148-66 (1988) (discussing the dominant principle of nonaccount- ability of attorneys for the decisions of their clients). Such issues are related to, but distinct from, the question of whether attorneys may violate the law for moral reasons outside of their representational roles; these deserve separate attention. Moreover, while important unresolved questions remain about representing clients considering conscientious lawbreaking, there appears already to be greater agreement in the legal community about the propriety of such representation than there is about actual attorney disobedience. See MODEL RULES OF PROF’L CONDUCT R. 1.2(d) cmt. 6 (“[T]he fact that a client uses advice in a course of action that is criminal or fraudulent does not of itself make a lawyer a party to the course of action.”); Newman, supra, at 290- 92 (arguing that the professional codes of ethics clearly allow an attorney to give neutral legal advice to a client that will likely be used to commit a crime); Press Release, Na- tional Lawyers Guild, National Lawyers Guild Supports Acts of Civil Disobedience in Protesting Preemptive Strike Against Iraq (Oct. 3, 2002) (announcing intent to provide legal support and materials to individuals and groups considering civil disobedience), available at http://www.nlg.org/news/statements/iraq_cd.htm (last visited Dec. 31, 2004). 38 See Judith A. McMorrow, Civil Disobedience and the Lawyer’s Obligation to the Law, 48 WASH. & LEE L. REV. 139, 139-41 (1991) (discussing how a lawyer’s “special obligations both to uphold the law and to strive to make the law just” make it unclear whether attorneys may commit civil disobedience). 39 MODEL RULES OF PROF’L CONDUCT Preamble para. 5. 40 See MODEL CODE OF PROF’L RESPONSIBILITY EC 1-5 (“Obedience to law exempli- fies respect for the law. To lawyers especially, respect for the law should be more than a platitude.”); ABA Young Lawyers Div., Lawyer’s Pledge of Professionalism, in ABA COMPENDIUM, supra note 6, at 437 (“I will encourage respect for the law and our legal system through my words and actions.”). 41 MODEL CODE OF PROF’L RESPONSIBILITY DR 1-102(A); see also id. EC 1-5 (declaring that attorneys should “refrain from all illegal and morally reprehensible conduct”). 42 See id. EC 1-5 (“[E]ven minor violations of law by a lawyer may tend to lessen public confidence in the legal profession.”). 43 See id. (stating that a lawyer’s duty to demonstrate respect for the law and the legal profession is due to “his position in society” as an attorney); McMorrow, supra 1066 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 153: 1057

“professional misconduct for a lawyer to . . . commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer.”44 Thus, compared to the Model Code, the Model Rules narrow the scope and degree of illegal conduct for which attorneys are responsible.45 Nevertheless, a pattern of minor violations remains sufficient to discipline an attorney under the Model Rules, including the use of temporary or permanent disbarment.46 Taken by itself, such language would prohibit attorney civil disobedience fairly clearly. The ethics rules, however, also impose on lawyers a duty to improve the law by seeking to make it more just. The Model Code advises attorneys to “[a]ssist in [i]mproving the [l]egal [s]ystem”47 and to strive to make the law more “just, understandable, and responsive to the needs of society.”48 The Model Rules similarly emphasize that lawyers should improve the law and the legal system.49 Thus, the professional rules of ethics place on lawyers two sets of responsibilities that intersect and conflict on the question of conscientious lawbreaking. Civil disobedience is one potential mechanism by

note 38, at 152 (noting that, under the Model Code, the ABA rejected “any distinction between professional and personal conduct, stating that a lawyer must comply with applicable rules at all times”); see also In re Preston, 616 P.2d 1, 5 (Alaska 1980) (rejecting attorney’s contention that he should not be disciplined for illegal conduct because it “was unrelated to his professional skill and ability to practice law”). 44 MODEL RULES OF PROF’L CONDUCT R. 8.4. 45 See id. R. 8.4 cmt. 2 (“Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice.”); William H. Simon, Moral Pluck: Legal Ethics in Popular Culture, 101 COLUM. L. REV. 421, 424 n.13 (2001) (describing the Model Rules as taking “a more moderate line” on violations of the law by attorneys than the Model Code). 46 See MODEL RULES OF PROF’L CONDUCT R. 8.4 cmt. 2 (“A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation.”); Strassberg, supra note 23, at 902 n.14 (criticizing David Luban’s proposal for giving attorneys who commit justified civil disobedience “no comfort that their careers will or should survive”); Terrell, supra note 28, at 835-36 (noting that attorney civil disobedience risks the punishment of disbarment). 47 MODEL CODE OF PROF’L RESPONSIBILITY Canon 8. 48 Id. EC 8-2; see also id. EC 8-9 (“The advancement of our legal system is of vital importance in maintaining the rule of law and in facilitating orderly changes; therefore, lawyers should encourage, and should aid in making, needed changes and im- provements.”). 49 See MODEL RULES OF PROF’L CONDUCT Preamble para. 6 (“[A] lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession.”); id. Preamble para. 7 (“A lawyer should strive . . . to improve the law and the legal profession . . . .”); id. R. 6.1(b)(3) (emphasizing that lawyers should participate “in activities for improving the law, the legal system or the legal profession”). 2005] WITHIN EACH LAWYER’S CONSCIENCE 1067 which lawyers might seek to make the law—or the rules governing the legal profession—more just.50 Yet, the rules appear to forbid such well-intended lawbreaking. One possible solution to this conflict, identified in the Model Code, is simply to limit an attorney’s efforts to improve the law to “lawful means.”51 This resolution is deficient in three respects. First, the Model Rules lack a similar restriction.52 Second, the Model Code’s limitation on attorney disobedience is in tension with its claim that “[e]ach lawyer must find within his own conscience the touchstone against which to test the extent to which his actions” are ethical.53 Likewise, the Model Rules note that a lawyer’s professional duties must be informed by “personal conscience,” not merely the obligations imposed by the black letter words of the codes of ethics.54 The spirit of such advice surely opens the door, however slightly, to attorney civil disobedience. Finally, attorneys may face circumstances in which lawful efforts to improve the law or prevent injustice are either ineffective or impossible.55 Consider, for example, a case in which a client tells her lawyer that she committed the crime for which another person is about to be executed.56 Until 2002, if a client refused to waive confidentiality, the law-

50 See HAZARD & HODES, supra note 32, § 9.20 (suggesting that if a lawyer violated a professional ethics rule on moral grounds, “[t]he publicity arising from such a case might well lead to salutary changes in the law—a hallmark of conscientious civil disobedience”); Leslie Griffin, The Relevance of Religion to a Lawyer’s Work: Legal Ethics, 66 FORDHAM L. REV. 1253, 1261 (1998) (arguing that civil disobedience is one option for criticizing an unjust law and that “the legal profession needs criticism to improve its own standards”). 51 Cf. MODEL CODE OF PROF’L RESPONSIBILITY EC 8-2 (stating that a lawyer “should endeavor by lawful means to obtain appropriate changes in the law”). 52 See MODEL RULES OF PROF’L CONDUCT R. 6.1(b)(3) (stating that a lawyer should “provide any additional services through . . . participation in activities for improving the law, the legal system or the legal profession” (emphasis added)); id. R. 6.1 cmt. 8 (providing a nonexhaustive list of examples of how a lawyer may work to improve the law); cf. supra note 45 and accompanying text (noting that the Model Rules adopt a more moderate approach to illegal lawyer conduct). 53 MODEL CODE OF PROF’L RESPONSIBILITY Preamble. 54 See MODEL RULES OF PROF’L CONDUCT Preamble para. 7 (“Many of a lawyer’s professional responsibilities are prescribed in the Rules of Professional Conduct, as well as substantive and procedural law. However, a lawyer is also guided by personal conscience and the approbation of professional peers.”). 55 See Minow, supra note 37, at 727-39 (describing the limits on lawful reform, the potential negative consequences in pursuing it, and the advantages that civil disobedience offers in certain situations). 56 See Monroe H. Freedman, The Life-Saving Exception to Confidentiality: Restating Law Without the Was, the Will Be, or the Ought to Be, 29 LOY. L.A. L. REV. 1631, 1632, 1068 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 153: 1057 yer would have been prohibited by the Model Rules from taking steps to prevent the execution.57 In essence, the lawyer had no “lawful” options at her disposal to ensure a just result.58 In such instances, disobeying the law may be the most ethical course of action because it is the only way to prevent the legal system from committing a grave injustice. The “lawful reform” limitation fails to take such situations into account. The case law offers little help in resolving this conflict or in clarify- ing what the consequences of conscientious noncompliance are under the codes of ethics. There are few instances on record in which practicing attorneys have committed civil disobedience and been subject to disciplinary proceedings.59 Professor Monroe Freedman provides a personal account of what is perhaps the prototypical example of attorney civil disobedience. Freedman writes that he “openly violated the rules against advertising and solicitation, intentionally courting disciplinary action, because [he] believed that those rules deprived poor and unsophisticated people of essential information about their rights.”60 The District of Columbia Bar Association brought disciplinary charges against Professor Freedman, but eventually agreed with his position and issued “the first opinion anywhere approving advertising and solicitation of clients.”61 He notes that “[w]hen asked by

1636-37 (1996) (arguing that client confidentiality should be violated in the face of the loss of an innocent life). Perhaps the best known example of a life-or-death professional ethics problem occurred in Spaulding v. Zimmerman, 116 N.W.2d 704 (Minn. 1962). Attorneys for a defendant in a personal injury suit involving a car accident discovered that the plaintiff had a potentially fatal aneurysm which may or may not have been caused by the accident. Id. at 707. It was clear that the plaintiff was unaware of the condition. Id. at 708. The defense attorneys completed settlement negotiations and never informed the plaintiff of the aneurysm, out of respect for their client’s interests in the case. Id. 57 In 2002, Rule 1.6 of the Model Rules was amended to permit breaches of client confidentiality in order “to prevent reasonably certain death.” MODEL RULES OF PROF’L CONDUCT R. 1.6(b)(1). The change in this Rule illustrates that the law governing attorneys, like other positive law, can and should evolve to accommodate overriding moral principles. 58 I assume that, in this situation, an attorney’s “noisy withdrawal” would not have been helpful to the innocent defendant. See id. R. 1.16 cmt. 7 (noting that an attorney, in such situations, might be permitted to withdraw representation). 59 See Daly, supra note 34, at 1628 (noting that the author had “located no instances of civil disobedience directed to the judicial branch in its capacity as the regu- lator of the legal profession”); Griffin, supra note 50, at 1260 n.17 (admitting that the author did “not know how often civil disobedience ha[d] been invoked in disciplinary settings”). 60 Freedman, supra note 2, at 1137. 61 Id. Professor Freedman also writes that he engaged in civil disobedience several 2005] WITHIN EACH LAWYER’S CONSCIENCE 1069 reporters and others how I, as a lawyer, could commit civil disobedience, I answered, ‘I was a free person, with moral responsibility, before I was a lawyer.’”62 Some lawyers have raised a civil disobedience defense to lawbreaking that courts found lacking in moral justification.63 Though such defenses were unsuccessful, the willingness of courts and disciplinary boards to consider them suggests that there may indeed be a role for conscientious disobedience in professional ethics cases. One state bar committee stated that “a single act of civil disobedience did not call into question an attorney’s fitness to practice law,” but that “frequent and/or continual misdemeanor convictions of this nature may result in more serious professional consequences.”64 The treatment of applicants for admission to the bar provides a fair—though imperfect—comparison of how the rules of ethics are interpreted with regard to civil disobedience.65 The certification process is analogous to disciplinary proceedings in that state bars require applicants, like their members, to be of good moral character.66 Criminal conduct in both contexts reflects on an attorney’s moral fitness because it shows a lack of respect for the law.67 The re- times to protest the Vietnam War, but does not mention whether disciplinary action resulted from these acts. Id. at 1138. 62 Id. at 1138. 63 See In re Preston, 616 P.2d 1, 4 (Alaska 1980) (noting that the Disciplinary Board of the Alaska Bar Association concluded that an attorney’s distribution of drugs was not an act of civil disobedience intended to change the law); In re Disciplinary Action Against Stanbury, 561 N.W.2d 507, 511 (Minn. 1997) (rejecting attorney’s claim that his failure to pay court fees was an act of civil disobedience and holding that “it is not the system that is in need of reexamination and reform,” but rather the defendant). 64 McMorrow, supra note 38, at 154 (citing Virginia Legal Ethics Opinion No. 1185, VA. LAW. REGISTER, Oct. 1989, at 14). 65 The comparison between the certification process and disciplinary proceedings is limited by the fact that certification is based on more stringent requirements than disciplinary review. See Deborah L. Rhode, Moral Character as a Professional Credential, 94 YALE L.J. 491, 547 (1985) (describing the “double standard” between the admission and disciplinary processes that results because “both substantive and procedural requirements are more solicitous of practitioners than applicants”). Consequently, illegal conduct is more likely to be flagged during an admissions inquiry as a sign of moral deficiency than in the context of disciplinary action against a practicing attorney. 66 See Konigsberg v. State Bar of Cal., 353 U.S. 252, 273 (1957) (recognizing the importance of allowing state bars to select their own members, but adding that these members should be of good character); MODEL CODE OF PROF’L RESPONSIBILITY EC 1- 2 (stating that applicants to the bar who are deficient in moral standards are not qualified); Rhode, supra note 65, at 546 (“[T]he justification for regulating the personal behavior of licensed attorneys is in many respects analogous to that underlying the certification process.”). 67 See Rhode, supra note 65, at 537 (noting that applicants are often rejected from 1070 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 153: 1057 sponse of bar committees to applicants with civil disobedience in their background varies widely. Some states see politically or morally motivated lawbreaking as deeply problematic for bar admission, while others see it as almost admirable.68 The California Supreme Court, for example, held that an applicant’s multiple arrests in the context of the civil rights movement did not disqualify him from the practice of law, noting that such noncompliance might be considered a product of “the highest moral courage.”69 By contrast, Illinois denied admission to a conscientious objector to World War II on the grounds that his pacifist views prevented him from complying with a state constitutional requirement that applicants serve in the state’s militia during time of war.70 Thus, while the treatment of bar applicants suggests that there is some tolerance of civil disobedience among the bars, the states differ too widely in this respect to draw any clear lessons. Part of the difficulty in determining the consequences of civil disobedience under the rules of ethics is simply that the codes themselves, like nearly every other form of positive law, are subject to many reasonable interpretations.71 To prohibit illegal conduct that involves “moral turpitude”72 or “reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer”73 invites the disciplinary boards to inject subjective values, including their own sense of morality, into bar admission due to illegal activities, “regardless of the likelihood of their repetition in a lawyer-client relationship,” because they “would demean the profession’s reputation”). The primary difference between disciplinary procedures and bar admission inquiries is that in the former, the bar bears the burden of showing the attorney’s moral deficiency, while in the latter, applicants bear the burden of showing their own moral fitness. See Hallinan v. Comm. of Bar Examiners, 421 P.2d 76, 80 (Cal. 1966) (stating that applicants to the bar bear the burden of showing moral fitness, while the bar bears the burden of proving attorneys are unfit during disciplinary hearings); Rhode, supra note 65, at 547 (same). 68 See Rhode, supra note 65, at 542-43 (describing the variety of reactions to an applicant’s arrest in connection with political activity among the bars of Arkansas, Cali- fornia, Idaho, Missouri, New York, Nevada, and Virginia). 69 Hallinan, 421 P.2d at 87. 70 See In re Summers, 325 U.S. 561, 571-73 (1945) (affirming the Illinois Supreme Court’s rejection of the University of Pennsylvania Law School’s beloved Professor Clyde Summers from the bar). 71 See Strassberg, supra note 23, at 901 (arguing that the “modern articulation of legal ethics as positive law” might “seriously undermine the justification” for engaging in civil disobedience). 72 MODEL CODE OF PROF’L RESPONSIBILITY DR 1-102(A)(3); see also id. EC 1-5 (declaring that attorneys should “refrain from all illegal and morally reprehensible conduct”). 73 MODEL RULES OF PROF’L CONDUCT R. 8.4(b). 2005] WITHIN EACH LAWYER’S CONSCIENCE 1071 their review. It should hardly be surprising, then, that the record of applying the rules provides few definitive answers. The secondary literature also does little to narrow the range of interpretations of the Model Rules and Model Code. Some commentators argue that the ethics codes obviously prohibit any conscientious disobedience.74 Others seem to suggest that one can fairly understand an attorney’s professional obligation to permit civil disobedience.75 Most acknowledge that the various rules contain ambiguities that allow for considerable “interpretive leeway” on the issue.76 Without clear indications of the consequences of conscientious lawyer noncompliance in the codes of ethics, the case law, or the secondary literature, the most honest—and realistic—resolution to the issue is that the disciplinary prosecutors who enforce the rules currently retain enormous discretion as to how to treat civil disobedience.77 Though perhaps intellectually unsatisfactory, this conclusion should hardly be surprising. We accept the propriety of prosecutorial

74 See, e.g., Luban, supra note 22, at 796 (claiming that under the Model Rules, “a lawyer who engages in conscientious disobedience to law is no better than a street criminal, and indeed may be worse if her conscientious disobedience arises from an ideology that is hostile to the American legal system”); Simon, supra note 45, at 424 (noting that there is “no tolerance . . . for civil disobedience” in the rules of professional ethics). 75 See, e.g., Cowen, supra note 2, at 597 (noting that a lawyer could theoretically “stand on the same footing as the nonlawyer” in committing civil disobedience). 76 Terrell, supra note 28, at 831; see also McMorrow, supra note 38, at 151 (“Both [the Model Rules and Model Code] contain broad ambiguities.”). 77 See Strassberg, supra note 23, at 905 (“The actual application of ethical rules suggests a far less rigid construction than might be assumed. Bar associations and state disciplinary institutions . . . do not necessarily display the rigid adherence to the limited reach of a rule or specified exceptions which a formalist approach to the rules would dictate.”). But cf. Bruce A. Green, Lawyer Discipline: Conscientious Noncompliance, Conscious Avoidance, and Prosecutorial Discretion, 66 FORDHAM L. REV. 1307, 1311 (1998) (“[T]he extent of disciplinary prosecutors’ discretion may be especially limited because they lack the independence of criminal prosecutors.”). Some commentators have noted that the benefits of prosecutorial discretion may be far greater in cases involving attorneys in large firms. See, e.g., Steven France, Can the Bar Regulate the Large Firms?, LEGAL TIMES, Jan. 31, 1994, at 28 (noting that the wide discretion in disciplining prominent attorneys raises serious questions about whether the bar is willing or able to regulate attorneys at large firms, or whether its disciplinary power is directed only at “the occasional stray solo practitioner who pockets money from a client’s escrow account”); Susan P. Koniak, Who Gave Lawyers a Pass?, FORBES, Aug. 12, 2002, at 58, 58 (noting that the bar’s disciplinary authorities “would be ab- surdly outgunned” when attempting to discipline attorneys at large firms). This raises important questions about the bar’s disciplinary process that are beyond the scope of this Comment. 1072 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 153: 1057 discretion in the criminal justice system as a check on unfair laws.78 It is certainly possible that the dearth of case law in this area is influenced by prosecutors turning a blind eye to conscientious disobedience. And as Professors Geoffrey Hazard and William Hodes have noted, bar authorities undoubtedly approach attorney civil disobedience with sensitivity to the moral context of the lawbreaking.79 In a self-regulated profession in which moral judgment and political independence are prized,80 we should expect—and respect—such sensitivity. Of course, it would be discomforting to any attorney contemplating civil disobedience that her professional fate is left to the discretion of a prosecutor with a moral compass potentially different from her own. Attorneys committing civil disobedience currently risk disciplinary actions that include temporary or permanent disbarment.81 It is clear from this discussion that there is some tolerance, though perhaps only unspoken, of the role of civil disobedience by attorneys.82 This may be cold comfort, however, given the stakes at play for lawyers.

III. REFUTING THE ARGUMENTS AGAINST ATTORNEY CIVIL DISOBEDIENCE

Critics of attorney civil disobedience note that there is far more at stake when lawyers break the law than simply the consequences for an attorney’s career. They argue that noncompliance by the bar has potentially much broader costs to the legal profession, to society, and to the law itself. In their minds, attorney civil disobedience is inappropriate in a legal system that is “generally just, even though not per-

78 See, e.g., Simon, supra note 23, at 226 (“Prosecutorial nullification is widely considered legitimate in circumstances where the application of a statute produces an especially harsh or anomalous result or where an entire statute, usually an old one, seems out of tune with contemporary sentiment . . . .”). 79 HAZARD & HODES, supra note 32, § 9.20 (arguing that it is unlikely that bar authorities would discipline an attorney for violating the rules of ethics to save a life). 80 See supra text accompanying notes 53-54 (highlighting the ethics rules’ emphasis on an attorney’s personal conscience); see also Konigsberg v. State Bar of Cal., 353 U.S. 252, 273 (1957) (“It is also important both to society and the bar itself that lawyers be unintimidated—free to think, speak, and act as members of an Independent Bar.”). 81 See supra note 46 and accompanying text; cf. Luban, supra note 28, at 259 (arguing that the Model Code and Model Rules should be amended to permit lawyers to commit civil disobedience without jeopardizing their licenses). 82 See supra text accompanying notes 63-69 (discussing the various ways in which the bar has recognized there may be some tolerance of conscientious disobedience by attorneys). 2005] WITHIN EACH LAWYER’S CONSCIENCE 1073 fect.”83 Thus, regardless of whether attorneys can commit civil disobedience under the ethics rules, it remains contested whether they should. In this section, I will respond to the four major arguments against civil disobedience by analyzing the relationships among the legal profession, the law, and the public. When these relationships are properly understood, it becomes clear that none of these institutions would be threatened by an ethics regime that explicitly tolerated attorney civil disobedience.

A. Attorney Civil Disobedience and Respect for the “Rule of Law”

The first major objection to attorney disobedience is that it significantly weakens the law’s normative power.84 Because the law’s authority depends in large part on the willingness of individuals in our society to accept and obey it, erosion of respect for the “rule of law” is a serious threat to our legal system.85 Critics of attorney disobedience claim that attorney attitudes toward the law “rub off” on nonlawyers.86 Citizens take cues from attorneys when developing their own sense of obligation to respect the law. Attorneys who disobey the law—even conscientiously—convey to the lay public the potentially dangerous message that the law should be ignored when an individual deems it appropriate to do so. Related to this claim is the concern that attorney disobedience has a second, more direct effect on the authority of our legal system. While it is deeply problematic for the average citizen not to feel particularly obligated to follow the law, it would be disastrous if the bar had the same lax attitude.87 Attorneys are judicial actors whose role is

83 Terrell, supra note 28, at 834. 84 See id. at 835 (“[D]isobedience to the legal and ethical rules of the [legal] system necessarily undermines the system’s claim to legitimacy.” (emphasis omitted)). 85 See MURPHY & COLEMAN, supra note 8, at 29 (stating that a stable legal order requires that the majority of citizens must view the laws “as standards of criticism and justification”). 86 See David B. Wilkins, In Defense of Law and Morality: Why Lawyers Should Have a Prima Facie Duty to Obey the Law, 38 WM. & MARY L. REV. 269, 292 (1996) (“[T]he attitudes that lawyers convey about the law are likely to rub off on their clients, thereby multiplying the effects of lawyer noncompliance. Even nonclients are likely to pick up important messages about the appropriate moral standing of law from the conduct of lawyers.” (footnote omitted)). 87 See HART, supra note 13, at 116-17 (arguing that judicial actors must accept the internal perspective of the legal system in which they operate); MURPHY & COLEMAN, 1074 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 153: 1057 to implement and interpret the laws. A legal system in which lawyers felt no particular commitment to the rule of law would be ineffective at enforcing social norms and likely unstable. Increasing tolerance for attorney civil disobedience might lead individual attorneys to become overly emboldened to make their own judgments about which laws deserve respect and which ones do not.88 This could greatly undermine the consistency and effectiveness of the legal system. In short, critics charge that attorney lawbreaking “is likely to have larger negative consequences than similar actions” by nonlawyers.89 Civil disobedience may be acceptable for citizens, but legal ethics should not lightly tolerate lawyer noncompliance because it significantly undermines our society’s respect for the legal system and the rule of law. Such arguments appear to mirror the reasoning of the provisions in the Model Rules and Model Code, which emphasize that “respect for the law should be more than a platitude” for attorneys.90 Attorneys have a special relationship to the law that gives them a special responsibility to obey it. Such claims certainly have some merit. One can vividly imagine the injustice of a legal system in which lawyers routinely violate the law themselves. Moreover, the actions of attorneys undoubtedly affect the attitude of others towards the law. Nevertheless, there are several counterarguments to this position—both theoretical and practical— that significantly undermine its criticism of attorney civil disobedience.

1. Civil Disobedience Demonstrates Respect for the Law

The first response to the claim that lawyer noncompliance weakens respect for the law is based on the very nature of civil disobedience. As Dr. Martin Luther King, Jr. wrote in his Letter from Birming- ham Jail, “an individual who breaks [a] law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for the law.”91 By submitting supra note 8, at 29 (noting the importance of judicial actors respecting the normative power of the law). 88 Cf. Luban, supra note 22, at 809 (arguing that lawyers may commit civil disobedience because they are “obligated to respect the law only when the law deserves respect”). 89 Wilkins, supra note 86, at 292. 90 MODEL CODE OF PROF’L RESPONSIBILITY EC 1-5. 91 KING, supra note 10, at 83-84. 2005] WITHIN EACH LAWYER’S CONSCIENCE 1075 oneself voluntarily to the legal system’s judgment, one recognizes and affirms the law’s authority and the legal obligations it imposes, even while protesting its morality.92 This aspect of civil disobedience does not change simply because it is a lawyer who commits it. Civil disobedience puts a choice to the authority figures it challenges: punish the lawbreaker and affirm the value of the rule; disassociate from the system because it is unjust; or acknowledge mistake in the rule and change it.93 Far from weakening the law’s authority, civil disobedience affords the state an opportunity to strengthen its normative power. In response to conscientious lawbreaking, the legal system reevaluates the rule that was violated, struggles with the moral issues it implicates, and strengthens the legal obligation imposed by affirming the law and punishing the lawbreaker. It is true that a judicial pronouncement radically out of line with a society’s common morality may undermine the public’s sense that the law in question is just and deserving of respect, but this is in no way exacerbated by the fact that the lawbreaker is an attorney.

92 See Leubsdorf, supra note 4, at 938-39 (describing the respect with which Gan- dhi submitted himself to the law’s judgment as an important part of his philosophy). In contrast, David Luban has argued for what I believe is a more radical view of civil disobedience. He claims that citizens and lawyers are “obligated to respect the law only when the law deserves respect.” Luban, supra note 22, at 809. “When the law is evil, unfair, or hopelessly stupid . . . the obligation [to obey it] vanishes and disobedience is in order.” LUBAN, supra note 37, at 35. While such rhetoric is similar to that of traditional civil disobedience, it differs significantly by opening the door to the claim that immoral laws impose no legal obligation on citizens. Luban’s position all but col- lapses the distinction between moral and legal obligation. See Luban, supra note 22, at 809 (suggesting that the “ground of [legal] obligation lies in some morally relevant property of laws”). This approach is much closer to the traditional natural law perspective—i.e., that an unjust law is not a valid law—than it is to my operative conception of civil disobedience, under which one recognizes a valid legal obligation that is simply trumped by a competing moral duty. See id. at 801-02 (arguing that the law implies a “utopian ideal” and acknowledging the similarity between his position and natural law); id. at 806 (stating that lawyers should consider the “natural-law legality” of a contested law when considering whether to take a case). The understanding of civil disobedience I have in mind here, however, is decidedly not based on natural law. By willingly accepting punishment from the legal system, a conscientious objector recognizes a law’s legal validity and separates her moral obligations from her legal ones. Such a separation has a strong positivist flavor to it, in spite of the moral protest involved. See HART, supra note 13, at 210 (arguing that morally iniquitous laws may still be valid, but that the legal obligations they impose can be overcome by nonlegal, moral inquiry). 93 See Freedman, supra note 2, at 1137 (explaining how the author’s civil disobedience forced the bar to change an ethics rule); Leubsdorf, supra note 4, at 932 (recounting Gandhi’s statement that a judge must either inflict punishment on the lawbreaker or disassociate from the “evil” law at issue). 1076 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 153: 1057

An example of the opportunity conscientious lawbreaking offers to strengthen legal obligation is provided by the case of Alabama Su- preme Court Chief Justice Roy Moore, who defied a federal injunction that ordered him to remove a monument of the Ten Commandments he had placed at the courthouse.94 While there are unique aspects of Moore’s case that distinguish it from the typical conscientious disobedience,95 the matter is fairly comparable to attorney civil disobedience for the purposes of evaluating its effect on public respect for the law. In both cases, the defiance is public, based on a moral objection to the law, and committed by a judicial actor. Chief Justice Moore’s defiance provided the federal and state ju- diciaries with the opportunity to strengthen the rule of law. The federal judiciary affirmed the importance of the First Amendment’s protection of separation of church and state, and the Alabama state judiciary reinforced the principle that “[n]o man in this country is so high that he is above the law.”96 Regardless of one’s moral views about Moore’s actions, the incident left no doubt as to his legal obligations under the First Amendment. As one might expect in a pluralistic society, Moore had strong supporters whose respect for the law and sense of duty to it was shaken by the incident.97 But for other citizens,

94 See Pryor, supra note 2, at 1 (“On August 14, 2003, Chief Justice Roy Moore announced that he would not obey an injunction of the U.S. District Court for the Mid- dle District of Alabama to remove a monument with a depiction of the Ten Com- mandments from the rotunda of the State Judicial Building.” (footnote omitted)); see also Stan Bailey, Moore Kicked Off State’s High Court: ‘No Man . . . Is So High as to Be Above the Law,’ Court Rules, BIRMINGHAM NEWS, Nov. 14, 2003, at A1 (describing the consequences of Justice Moore’s defiance of the federal injunction). 95 For starters, there is a genuine question as to whether or not Chief Justice Moore’s defiance actually qualifies as justified civil disobedience. See Pryor, supra note 2, at 2 n.7 (noting that Moore himself was equivocal about whether his actions constituted justified civil disobedience); Anthony J. Sebok, Ten Commandments Defiance Doesn’t Meet Civil Disobedience Test, CNN.COM, Aug. 26, 2003 (arguing that Moore’s defiance was not justified civil disobedience), available at http://www.cnn.com/ 2003/LAW/08/26/findlaw.analysis.sebok.commandments. In addition, Moore’s position as a judge distinguishes his disobedience from that of a private citizen. See Pryor, supra note 2, at 8 (observing that Moore’s moral position was different from Dr. Martin Luther King, Jr.’s in part because Moore was a public official); Sebok, supra (arguing that Moore had a “special obligation to obey the law and to obey duly adjudicated interpretations of the law” because he was a judge). 96 In re Moore, No. 33, slip op. at 9 (Ala. Ct. of the Judiciary Nov. 13, 2003) (quoting United States v. Lee, 106 U.S. 196, 220 (1882)), available at http:// www.judicial.state.al.us/documents/final.pdf, aff’d, Moore v. Judicial Inquiry Comm’n, No. 1030398, 2004 WL 922668 (Ala. Apr. 30, 2004). 97 See Pryor, supra note 2, at 2 (referring to Moore’s supporters); Bailey, supra note 94 (describing the support Moore received even after his punishment by the Alabama Court of the Judiciary). 2005] WITHIN EACH LAWYER’S CONSCIENCE 1077 particularly those who take their cues about the law’s validity and wor- thiness from the judicial system itself, the lesson of Moore’s defiance was that he violated a fundamental principle of our society and that the judicial system responded by disciplining him accordingly. The law functioned fairly and efficiently, dealing with Moore as it would have another lawbreaker without his considerable official stature. Surely this was a victory for the rule of law, not a defeat.

2. The Double Standard for Judging Attorney Civil Disobedience and Routine Legal Practices

There is something particularly hollow about the claim that attorney civil disobedience weakens respect for the law in light of many common practices that we expect and encourage in the name of “zealous representation.”98 As a matter of course in their daily work, lawyers seek to utilize the law to the advantage of their clients, often at the expense of the public good, a law’s clear purpose, or the interest of justice.99 Attorneys exploit loopholes in the tax code,100 structure transactions to avoid pesky regulations,101 and argue for far-fetched constructions of the law to further client interests.102 After the col- lapse of Enron, the public learned that it was “routine” (though per-

98 See MODEL CODE OF PROF’L RESPONSIBILITY Canon 7 (“A Lawyer Should Repre- sent a Client Zealously Within the Bounds of the Law”). 99 See Robert W. Gordon, The Independence of Lawyers, 68 B.U. L. REV. 1, 10 (1988) (noting that lawyers “are expected and even encouraged to exploit every loophole in the rules, take advantage of every one of their opponents’ tactical mistakes or over- sights, and stretch every legal or factual interpretation to favor their clients”); Stephen F. Smith, Cultural Change and “Catholic Lawyers,” 1 AVE MARIA L. REV. 31, 48 (2003) (“‘[J]ustice’ to the contemporary lawyer is whatever his client wants to achieve and nothing more.” (emphasis omitted)); Mike France, Commentary, Close the Lawyer Loop- hole, BUS. WK., Feb. 2, 2004, at 70, 70 (characterizing attorney advice on risky tax shel- ters as a “get-out-of-jail-free card” for clients). 100 See George Cooper ed., The Avoidance Dynamic: A Tale of Tax Planning, Tax Eth- ics, and Tax Reform, 80 COLUM. L. REV. 1553, 1555-60 (1980) (recounting a debate about the ethics of aggressive representation and “tax avoidance”); David B. Wilkins, Legal Realism for Lawyers, 104 HARV. L. REV. 468, 520-21 (1990) (describing the practice of tax attorneys giving clients advice that furthers client interests, regardless of whether the advice is contrary to the public purpose of the tax code). 101 See Deborah L. Rhode & Paul D. Paton, Lawyers, Ethics, and Enron, 8 STAN. J. L. BUS. & FIN. 9, 17-24 (2002) (describing the role of attorneys in structuring the transactions that later forced Enron into bankruptcy); see also Koniak, supra note 77, at 58 (“[W]ithout lawyers few scandals would exist, and fewer still would last long enough to cause any real harm.”). 102 See MODEL CODE OF PROF’L RESPONSIBILITY EC 7-4 (permitting attorneys to argue in favor of any construction of the law, without regard “to the likelihood that the construction will ultimately prevail”). 1078 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 153: 1057 haps not legal) for lawyers to give advice that would have the effect of frustrating federal investigations.103 A century ago, future Justice Louis Brandeis noted that it increasingly seemed to be the project of attorneys to “evade or nullify the extremely crude laws by which legislators sought to regulate the power or curb the excesses of corporations.”104 The messages sent by the legal profession through such representation are clear: a client’s interest supercedes the public interest; the law is vulnerable to seemingly endless manipulation; even the clearest of legal duties is subject to debate.105 The effect of such messages, conveyed to the public by nearly every aspect of the modern legal profession, is unquestionably significant to our society’s attitude towards the law. Lawyers who stretch the fabric of the law to its breaking point while representing clients seek to reshape the applicability of a legal duty to fit their client’s interests, which may overlap with the public good—but only coincidentally.106 Such representation strips the law of its veneer of generality, the characteristic that is most critical to our society’s internal sense of obligation to the law.107 Such a pervasive attitude in the legal profession must weaken our society’s respect for the rule of law at least as much as it is purportedly weakened by attorney civil disobedience, by which lawyers demonstrate their devotion to the

103 See Rhode & Paton, supra note 101, at 24 (describing the profession’s reaction to the actions of Nancy Temple, the in-house Arthur Andersen attorney whose advice during the Enron affair eventually helped lead to the firm’s downfall). 104 Louis D. Brandeis, The Opportunity in the Law, Address to the Harvard Ethical Society (May 4, 1905), in BRANDEIS ON DEMOCRACY 52, 57 (Philippa Strum ed., 1995). 105 These attitudes are central to an attorney’s education during law school. As one commentator noted of his own law school experience: Legal writing was . . . the assembly of new, partisan structures from the various components discovered in the process of deconstructing relevant cases. It didn’t matter, apparently, that these new structures were routinely built of blocks intended for entirely different purposes, that ill-fitting components were mangled or left out, that the completed structure often served the lawyer’s purposes as much as his client’s. The point was to create a building that looked better than one’s opponents’ . . . even if it was just a house of cards. CHRIS GOODRICH, ANARCHY AND ELEGANCE: CONFESSIONS OF A JOURNALIST AT YALE LAW SCHOOL 95 (1991); see also Robert Granfield & Thomas Koenig, “It’s Hard to be a Human Being and a Lawyer”: Young Attorneys and the Confrontation with Ethical Ambiguity in Legal Practice, 105 W. VA. L. REV. 495, 501 (2003) (“Law school teaches students to become tough-minded, hyper-rational, and insensitive to issues beyond the interests of their client—a perspective that undermines ethical decision-making.”). 106 See Pepper, supra note 37, at 1554 (arguing that the legal profession’s approach to the law “may lead the client to respect the law less”). 107 See LUBAN, supra note 37, at 48-49 (“[T]he principle of partisanship in the legal profession threatens to undermine the generality of law and thus to abrogate the moral authority of law. It is only its generality, its fairness, that elevates law from a co- ercive system to a system exerting moral—and not just physical—force.”). 2005] WITHIN EACH LAWYER’S CONSCIENCE 1079 public interest and affirm the legal authority of the law by willingly accepting punishment. Critics of lawyer civil disobedience seem to apply two sets of rules to attorney actions that affect respect for the law. They fear the effect of morally motivated noncompliance by attorneys, but defend a model of the profession that sacrifices respect for the generality of law to a client’s interests. This apparent inconsistency is not merely a product of applying different standards to attorney actions taken while representing a client than to actions taken in one’s individual capacity.108 For example, in the context of criticizing attorney disobedience, Professor Timothy Terrell also condemns the development of a “duty-based” practice of law, which emphasizes society’s interests over those of one’s clients.109 Terrell cites several examples of the trend toward duty-based lawyering that he finds particularly troubling, including recent strategies to hold attorneys accountable for their role in questionable transactions within the healthcare industry, as well as the Sarbanes-Oxley Act’s requirement that attorneys breach confidentiality to prevent securities fraud.110 Whatever one thinks about the merit of these attempted reforms of the legal profession, it is clear that they were intended to rehabili- tate our society’s respect for and trust in the law after instances in which attorneys’ advocacy for their clients seemed to go too far.111 Thus, Terrell’s criticism of these changes, juxtaposed with his fear that attorney civil disobedience will weaken respect for the law,112 is perplexing. I should not be misunderstood as taking a position directly on the question of whether it is proper for attorneys to engage in so-called “aggressive lawyering” in their clients’ interests. There are strong arguments that keeping the interests of clients at the center of attorney advocacy helps the law to evolve and improve for the benefit of society. It is a model that protects a client’s autonomy and provides a check on the power of the state.113 My critique is limited to noting the

108 See Terrell, supra note 28, at 847 (defining attorney civil disobedience to include violations of ethics rules committed to protect a client’s interests). 109 See id. (stating that a duty-based practice of law would fundamentally change the legal profession). 110 See id. at 848-51 (listing examples of duty-based lawyering). 111 See id. at 850 (finding that the Sarbanes-Oxley provision was enacted to strengthen investor confidence and trust in the securities laws). 112 See supra note 84. 113 See, e.g., Stephen Ellmann, Lawyering for Justice in a Flawed Democracy, 90 COLUM. L. REV. 116, 176-81 (1990) (reviewing LUBAN, supra note 37) (arguing that Luban’s 1080 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 153: 1057 inconsistency of those who claim that attorney civil disobedience is flawed because it weakens respect for the law while simultaneously defending routine practices of lawyers that likely have a more adverse effect on the rule of law. Civil disobedience and aggressive lawyering implicate the same interests: improvement of the law and resistance to the state’s potential for injustice. These goals either outweigh the need for attorneys to protect the public’s respect for the law, or they do not. If they do, however, they should do so in both contexts.

3. The Inconsistent Position of the Organized Bar on Attorney Civil Disobedience

Past actions by the organized bar cast doubt on how seriously one should take its insistence in the Model Rules and Model Code that attorneys display an almost sacred respect for the law.114 When it comes to the law governing lawyers, the bar has demonstrated far less respect for the law than one might assume based on its pronouncements in the codes of ethics. According to Professor Susan Koniak, the bar has “flouted and bypassed court attempts to articulate the law governing lawyers . . . [and] used its own power to insist on a law that diverges from the ‘official’ law articulated by the courts.”115 In so doing, the bar has suggested that respect for the state’s law appropriately takes a back seat to other considerations in certain instances. At various times in recent history, the bar has asserted its claim to self-regulation when threatened with increased government oversight.116 On occasions when the government has regulated lawyers over the objections of the legal profession, the bar has directly resisted the new rules. When state courts began to require attorneys to violate traditional rules of client confidentiality to prevent fraud, the ABA—rather than accept and respect the determination of the judiciary—insisted that the profession was under no such obligation.117 The bar’s resis-

proposal to restrict the partisanship of lawyers when such partisanship violates common morality would severely interfere with client autonomy). 114 See supra text accompanying notes 39-46 (describing the strong emphasis in the Model Rules and Model Code that attorneys demonstrate respect for the law). 115 Susan P. Koniak, When Courts Refuse to Frame the Law and Others Frame It to Their Will, 66 S. CAL. L. REV. 1075, 1092 (1993). 116 See Koniak, supra note 77, at 58 (“Twice in its history [the SEC] had gotten serious about regulating the bar. Both times the bar beat the agency back.”); Koniak, supra note 115, at 1091 (describing the reaction of the bar to the government’s prosecution, in the early 1990s, of the law firm Kaye Scholer for its participation in the Lin- coln Savings and Loan scandal). 117 See Koniak, supra note 115, at 1094-96 (describing the bar’s extensive struggle 2005] WITHIN EACH LAWYER’S CONSCIENCE 1081 tance included an acknowledgement that “lawyers may (and perhaps even should) refuse to comply with lower court orders requiring disclosure of information that the lawyer believes to be confidential, even in circumstances in which the clear weight of legal authority mandates disclosure.”118 In 1989, when the IRS requested attorneys to report cash payments in excess of $10,000, “[t]he vast majority of lawyers receiving the IRS demand letter refused to comply.”119 No cry issued in response from the organized bar about the importance of respecting the rule of law; far from it. In fact, bar leaders encouraged attorneys to continue their resistance.120 In other words, notwithstanding the lofty rhetoric in the Model Code and Model Rules that “[t]o lawyers . . . respect for the law should be more than a platitude,”121 the bar has supported attorney civil disobedience. Certainly this cannot, and should not, be taken as a general endorsement of noncompliance by the ABA. It should, however, give us some perspective about the consequences of lawyer disobedience on our society. In real-world applications of the ethics rules, even the organized bar has recognized that there are some extralegal principles that outweigh an attorney’s legal duty and her professional responsibility to demonstrate respect for the law. While it is conceivable that the bar views the rule of client confidentiality as the only principle for which it is worth an attorney breaking the law, it is more reasonable to believe that there are competing moral precepts of greater worth for which civil disobedience is also justified.122

with state courts over the issue of disclosure of confidential information). 118 Wilkins, supra note 86, at 276-77; see also Koniak, supra note 115, at 1102 (“Eth- ics opinions advising lawyers what to do when faced with state law that appears to require disclosure or some other infidelity to the client suggest that a lawyer is free to ignore the weight of court authority.”). 119 Susan P. Koniak, The Law Between the Bar and the State, 70 N.C. L. REV. 1389, 1405 (1992). 120 See id. at 1406-07 (describing the reactions of leaders of the state and national bar associations to the attorney noncompliance); Wilkins, supra note 86, at 277 (“[B]ar leaders continue to urge lawyers to defy an IRS regulation requiring lawyers to report cash payments by clients above a certain amount.”). 121 MODEL CODE OF PROF’L RESPONSIBILITY EC 1-5. 122 See HAZARD & HODES, supra note 32, § 9.20 (arguing that a lawyer would be justified in violating client confidentiality in order to save a life). 1082 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 153: 1057

4. Isolated Acts of Attorney Civil Disobedience Do Not Threaten the Rule of Law

A final common-sense response to the claim that attorney civil disobedience will erode respect for the law is that any adverse impact on the rule of law from a lawyer’s isolated act of noncompliance will be minor.123 Any negative impact on the public would very likely remain localized for the simple reason that it would be rare for the disobedience to be publicized more widely.124 Moreover, attorney civil disobedience is almost certain to remain relatively isolated. While nearly every lawyer recognizes flaws in the legal system, few lawyers question the law’s legitimacy so deeply that they would resort to noncompliance on more than a rare occasion.125 Evidence indicates that many attorneys hold views similar to those of their privileged clients—hardly the citizens from whom one expects widespread civil disobedience.126 One survey reported that only about one in every six attorneys in large firms had ever refused an assignment or potential work solely because it violated her personal values.127 Such empirical evidence about the attitudes of attorneys strongly suggests that a codified ethical acknowledgement that some moral obligations may trump an attorney’s duty to respect the law will not open the floodgates to widespread attorney civil disobedience.

123 See Wilkins, supra note 100, at 511 (“An isolated act of lawyer nullification does not threaten the rule of law.”). 124 See Fred C. Zacharias, The Lawyer as Conscientious Objector, 54 RUTGERS L. REV. 191, 212 n.85 (2001) (“Although lawyer ‘misconduct’ often is publicized in the press, the lawyer’s notoriety typically is limited to the local jurisdiction. The systemic effects of the lawyer’s conduct will probably be similarly confined.”). There are, of course, exceptions to the general thesis that attorney civil disobedience receives only local attention. Cf. supra text accompanying notes 94-97 (discussing the case of Alabama Chief Justice Roy Moore). 125 See Kathryn Abrams, Lawyers and Social Change Lawbreaking: Confronting a Plural Bar, 52 U. PITT. L. REV. 753, 778 (1991) (noting that many lawyers do not “question the legitimacy of the legal system,” and that even those who do so do not widely resort to civil disobedience). 126 See Wilkins, supra note 100, at 513 (“Empirical evidence indicates that many lawyers—particularly those representing the powerful—hold views about legal merit that strikingly resemble the interests of their clients.”). But see Abrams, supra note 125, at 761-66 (arguing that attorneys who represent oppressed or powerless clients are less likely to view the legal system as wholly legitimate). 127 Robert L. Nelson, Ideology, Practice, and Professional Autonomy: Social Values and Client Relationships in the Large Law Firm, 37 STAN. L. REV. 503, 534-35 (1985). 2005] WITHIN EACH LAWYER’S CONSCIENCE 1083

B. Attorney Civil Disobedience and Respect for Lawyers

The second major argument commonly offered against attorney civil disobedience is that it reduces the public’s respect for the legal profession. Given that our society generally assumes all citizens have a duty to follow the law, attorney civil disobedience may reflect nega- tively on lawyers generally. The public may trust lawyers less, for fear that they have their own agenda and that their professional ethics are inadequate.128 Nonlawyers may perceive attorney noncompliance to be symptomatic of a double standard in the legal profession, whereby lawyers, while ostensibly counseling others to obey the law, feel at liberty to disobey it themselves. Reducing the public’s trust in the legal profession has worrisome implications for client service, as well as for the legal system as a whole. Lawyers enjoy power and privileges that are contingent on maintaining the public’s trust in the profession. A lawyer’s ability to conceal information under attorney-client confidentiality that other citizens would be required to disclose is just one example of such a privilege. For the profession to continue justifying such special treatment, society must believe that attorneys are people of integrity.129 In addition, as trust of lawyers erodes, the legal system becomes more unstable. Clients must depend on attorneys to honor their duty of zealous representation;130 judges must rely on lawyers to act as upright “officers of the court” who will play fair while serving their clients. The judicial process depends on the trust that all sides place in attorneys to uphold their duties. Thus, the charge that lawyer civil disobedience weakens respect for the legal profession is a serious concern. As an initial matter, it should be noted that our society hardly seems to hold lawyers in high esteem today. A brief survey of the

128 See Zacharias, supra note 124, at 211-13 (describing the potential impact of attorney defiance on the public’s perception of the legal profession). 129 See France, supra note 99, at 70 (relating the character requirements for attorneys to their extensive power in the legal system). In addition, Professor Timothy Terrell has argued that “[i]f and only if the rule of law has a normative foundation does the ‘role’ a lawyer plays as a professional have any moral standing.” Terrell, supra note 28, at 834. Thus, by undermining the public’s sense of duty to obey the law through their acts of civil disobedience, Terrell believes that attorneys weaken the very aspect of the law that gives them their unique power in the legal system. 130 See MODEL CODE OF PROF’L RESPONSIBILITY EC 7-1 (“The duty of a lawyer, both to his client and to the legal system, is to represent his client zealously within the bounds of the law . . . .” (footnotes omitted)). 1084 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 153: 1057 genre of “lawyer jokes” provides a fairly strong indication of this fact.131 Consider just a small sampling: Question: Why did the research scientist substitute lawyers for rats in his laboratory experiments? Answer: Lawyers breed more rapidly, scientists became less attached to 132 them, and there are some things that rats just won’t do. Q[uestion]: What is the difference between a catfish and a lawyer? A[nswer]: One is a disgusting, bottom-feeding scavenger, and the other 133 is just a fish. More methodically gathered evidence confirms that the public has a negative view of lawyers. In a recent public opinion poll, eighteen percent of respondents believed that attorneys had high ethical standards. Lawyers were positioned near the bottom of professions in this category, ranking above the likes of car salesmen and advertising practitioners but below Congressmen.134 In another survey, only about one in every four people said they trusted lawyers to tell the truth, positioning them nineteenth out of the twenty professions considered.135 While negative social views of the legal profession are hardly novel,136 the recent highly publicized corporate scandals have further tarnished the image of attorneys.137 Lawyers played key roles in the Enron, Tyco, and Global Crossing affairs.138 As legal ethics expert Ste- phen Gillers has noted, whereas lawyers would ideally serve as “brakes

131 For a survey of this comedic craft, start with Lawyer Jokes, at http://www.ahajokes.com/lawyer_jokes.html (last visited Dec. 31, 2004); Lawyer Jokes and Cartoons, at http://www.lawyer-jokes.us (last visited Dec. 31, 2004); and http:// www.lawyerjokes101.com (last visited Dec. 31, 2004). 132 Robert C. Post, On the Popular Image of the Lawyer: Reflections in a Dark Glass, 75 CAL. L. REV. 379, 379 (1987). 133 Smith, supra note 99, at 49. 134 Gallup Poll, Nov. 19-21, 2004, available at http://www.pollingreport.com/ values.htm (last visited Dec. 31, 2004). 135 The Harris Poll, Nov. 14-18, 2002, available at http://www.pollingreport.com/ workplay.htm (last visited Dec. 31, 2004). 136 See, e.g., LAWRENCE M. FRIEDMAN, A HISTORY OF AMERICAN LAW 94-96 (2d ed. 1985) (noting that distrust and resentment of lawyers dates back to colonial times, perpetuating ancient English prejudice); WILLIAM SHAKESPEARE, THE SECOND PART OF KING HENRY THE SIXTH act 4, sc. 2 (“The first thing we do, let’s kill all the lawyers.”). 137 See Smith, supra note 99, at 48 (“The image of lawyers reached new lows with the wave of corporate scandals that shook Wall Street in 2002.”). 138 See id. at 48-49 (describing the involvement of lawyers in the Enron and Tyco scandals); Koniak, supra note 77, at 58 (noting that Simpson Thacher & Bartlett’s investigation of a whistle-blower memo about Global Crossing was “even worse than that by Vinson & Elkins of the Sherron Watkins/Enron memo”). 2005] WITHIN EACH LAWYER’S CONSCIENCE 1085 on bad conduct,” the reality is that “client pressures have turned [lawyers] into more of a gas pedal.”139 One might argue that the prevalence of such bleak views about attorneys lends support to the claim that lawyer civil disobedience would be harmful to the profession. If the bar is on the brink of los- ing the public’s confidence altogether, the last thing we want is the public to see attorneys flouting the authority of the law. This conclusion is flawed. It overlooks the reasons for the bar’s scarred image and, consequently, misunderstands the effect of civil disobedience on the profession. Evidence suggests that the two ideas that most contribute to the negative view of attorneys are the impression that they are money- hungry and the belief that they “manipulate the legal system without any concern for right or wrong.”140 The common perception is that today’s lawyer “all too often strives only to be ‘aggressive’ . . . not in the pursuit of justice but only in the prurient, self-serving interests of his or her own clients.”141 It is hard to imagine how publicity of a lawyer taking a deeply held moral stand, while willingly accepting the legal system’s punishment, would add to these negative images of the profession. On the contrary, such actions display the characteristics that the public seems to believe are lacking among lawyers: self- sacrifice, concern for the public interest, and recognition of the rule of law. It is significant that among our culture’s most revered images of lawyers are those who protect justice over rigid and impersonal rules and preserve moral integrity over personal interests. Atticus Finch, perhaps the most dignified lawyer in our shared cultural memory, agrees at the conclusion of To Kill a Mockingbird to lie to the town about the circumstances of Bob Ewell’s death—that is, to obstruct jus-

139 Mike France, What About the Lawyers?, BUS. WK., Dec. 23, 2002, at 58, 59 (quoting Professor Gillers’s discussion of whether the SEC’s new regulations on lawyers go far enough), available at http://www.businessweek.com/print/magazine/content/02_51/ b3813093.htm (last visited Dec. 31, 2004). 140 Post, supra note 132, at 380 (noting that 32% of respondents to a 1986 National Law Journal poll thought that the most negative aspect of lawyers was their interest in money, and 22% believed it was their exploitation of the legal system); see also CATHERINE CRIER, THE CASE AGAINST LAWYERS: HOW LAWYERS, POLITICIANS, AND BUREAUCRATS HAVE TURNED THE LAW INTO AN INSTRUMENT OF TYRANNY—AND WHAT WE AS CITIZENS HAVE TO DO ABOUT IT 180-98 (2002) (describing how attorneys use money to influence the legal and political system, in order for them to make more money). 141 Smith, supra note 99, at 47-48. 1086 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 153: 1057 tice—in order to protect the innocent Boo Radley.142 John Grisham’s lawyer-heroes often violate professional ethics to achieve justice.143 On television’s The Practice, the attorneys repeatedly demonstrate what William Simon calls “moral pluck,” which often requires them to ignore their legal or ethical duties in the interest of what is right.144 Such characters have in common an element of rebelliousness, generally revealed by their willingness to bend or break the strict edicts of the law to arrive at the just result. If popularity is any indication, their defiance of the law seems to have earned such attorneys our admira- tion, not condemnation.145 Of course, life is not a movie, and I do not argue based on fic- tional works that attorney civil disobedience would actually improve the public’s respect for the legal profession. I merely claim that it is highly unlikely that our society would condemn lawyers who commit civil disobedience because they display precisely the virtues that the public seems to want the bar to internalize. We must recognize that, to some extent, the legal profession is in a no-win situation when it comes to public respect. In an adversarial legal system, in which individuals rely on lawyers to protect their rights, attorneys are both loved and reviled for the very same thing: strong advocacy of their client’s interests.146 We hate the fact that, in the words of Vito Corleone, “[l]awyers can steal more money with a briefcase than a thousand men with guns and masks,”147 but find it far less troubling when they are “stealing” on our behalf. Attorney civil disobedience would not affect this dynamic one way or another because it appeals to the best view of lawyers as protectors of justice and virtue, especially when it comes

142 HARPER LEE, TO KILL A MOCKINGBIRD 274-79 (1960); see also Simon, supra note 45, at 421-22 (characterizing Atticus Finch’s actions as obstruction of justice, but noting that it is clear to the audience that Atticus has “do[ne] the right thing”). 143 See Simon, supra note 45, at 425-29 (discussing the prototypical role of ethics violations in John Grisham’s novels). 144 See id. at 435-40 (describing the complicated role that morality plays in the television series). 145 See, e.g., CRIER, supra note 140 (dedicating her book to Henry Drummond, from Inherit the Wind, and Atticus Finch, from To Kill a Mockingbird); Simon, supra note 45, at 437-38 (describing a scenario on The Practice in which an attorney flouts professional responsibility norms and noting that “most of us” probably sympathize with and admire him for it). 146 See Post, supra note 132, at 380 (“[L]awyers are applauded for following their clients’ wishes and bending the rules to satisfy those wishes; and they are at the very same time condemned for . . . using the legal system to get what their clients want, rather than to uphold the right and denounce the wrong.”). 147 MARIO PUZO, THE GODFATHER 220 (1969). 2005] WITHIN EACH LAWYER’S CONSCIENCE 1087 outside of the client context. Some official tolerance for lawyer noncompliance might not improve the public’s respect for the profession, but it would not weaken it either.

C. Attorney Civil Disobedience and the Bar’s Voluntary Promissory Obligation

The third argument against attorney civil disobedience is that lawyers have voluntarily agreed to obey the law by choosing their profession and agreeing to its ethical norms.148 This contractarian perspective of a lawyer’s duty to the law holds that, even though other citizens have a right to commit civil disobedience, attorneys have a heightened duty to obey the law by virtue of their conscious decision to become lawyers.149 When attorneys promise to uphold and obey the law, they impose on themselves an additional moral duty that is distinct from every citizen’s obligation to uphold the rules of the state. In essence, this argument claims that attorneys freely forsake the option of future civil disobedience the moment they take their oaths for the bar. The emphasis on the legal profession’s promissory obligation to obey the law is inimical to the traditional concept of an independent bar capable of making free moral and political judgments.150 The Supreme Court noted more than forty-five years ago that a “bar composed of lawyers of good character is a worthy objective but it is unnecessary to sacrifice vital freedoms in order to obtain that goal.”151 The freedom to judge, criticize, and resist the state’s authority is not taken from lawyers by their choice of profession.152

148 See Wilkins, supra note 86, at 290 (“[U]nlike ordinary citizens, lawyers have expressly promised to obey the law. . . . By expressly undertaking this commitment, lawyers have entered into a voluntary agreement with society that, like any other promise, has independent moral weight.”); see also McMorrow, supra note 38, at 142 (noting that state bars “may compel a bar applicant to take an oath of office,” which likely includes a promise to uphold the law). 149 See Terrell, supra note 28, at 846 (“Lawyers voluntarily join an association that imposes duties on them.”). 150 See Konigsberg v. State Bar of Cal., 353 U.S. 252, 273 (1957) (“It is also important both to society and the bar itself that lawyers be unintimidated—free to think, speak, and act as members of an Independent Bar.”). 151 Id. 152 See id. (noting that lawyers must remain “unintimidated,” with the freedom to act on independent moral and political judgments); see also In re Sawyer, 360 U.S. 622, 631 (1959) (“We start with the proposition that lawyers are free to criticize the state of the law.”). 1088 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 153: 1057

There are compelling reasons to be wary of encroaching on the bar’s independence. Attorneys are among the primary judicial actors who interpret and implement the law. Their ability to make autono- mous moral assessments of the law and publicly protest an immoral rule is a critical check on injustice in our legal system. The acquiescence of the legal profession to the tragedies of Nazi Germany vividly illustrates this point.153 In the aftermath of World War II, scholars considered how the German legal community had “easily succumbed as a willing tool of the Nazis.”154 While no consensus emerged about the cause for the lack of resistance, it was clear that the profession as a whole had prioritized its legal duty to the state more highly than its moral obligations, to an appalling end.155 This remains a powerful example of the dangerous potential that emerges by stripping the bar of its ability and willingness to resist the state. The concept of an independent bar presupposes that attorneys do not forfeit all of their freedom to engage in conscientious disobedience simply by joining the bar.156 Lawyers cannot possibly predict every moral problem they will encounter later in practice at the time they take their oaths.157 The concept of an independent legal profession would be meaningless if it applied only at the moment an attorney takes an oath, but was negated by that oath. The purpose of an independent bar is to provide ongoing vigilance against

153 See Simon, supra note 23, at 224 (discussing the dangers to a society when lawyers pledge “compliance with jurisdictionally adequate but morally evil laws like the Nazi enactments requiring reporting Jews and dissidents”). 154 Strassberg, supra note 23, at 917. 155 See id. at 917-18 (describing the debates among scholars over the role of legal positivism in Nazi Germany). 156 See Zacharias, supra note 124, at 202 n.56 (arguing that attorneys do not forsake their right to conscientiously disobey the law when they join the bar). 157 Id. There is an argument to be made, based on contract law, that a lawyer may be released from her oath to obey the law in cases where the state of the law frustrates the lawyer’s principal purpose of working for justice. See Krell v. Henry, 2 K.B. 740, 748 (Eng. C.A. 1903) (releasing defendant from his obligations under a contract which had its basic purpose frustrated prior to performance); RESTATEMENT (SECOND) OF CONTRACTS § 265 (1979) (stating the principle of discharge by supervening frustration); supra notes 47-49 and accompanying text (outlining the obligation in the ethics rules to make the law more just). It is unclear, however, that this argument would have much traction in light of the competing principle of assignment of risk in long-term contracts for foreseeable events. See N. Ind. Pub. Serv. Co. v. Carbon County Coal Co., 799 F.2d 265, 278 (7th Cir. 1986) (stating that the frustration of purpose defense is improper where the parties have assigned the burden of risk in a contract); Lloyd v. Murphy, 153 P.2d 47, 50 (Cal. 1944) (holding that the risk of a frustrating event that is reasonably foreseeable is assumed and cannot be grounds for a frustration of purpose defense). 2005] WITHIN EACH LAWYER’S CONSCIENCE 1089 future injustice. Lawyers must make moral judgments about the law as it changes, not as it was when they agreed to uphold it in their oath. Professor Freedman notes that an attorney remains “a free person, with moral responsibility,” despite taking the oath for admission to the bar.158 Attorneys unavoidably assume a measure of moral responsibility for the substantive outcomes of the law because they “exercise quasi-legislative power in deciding whether a given legal command applies to a particular case.”159 Given this responsibility, it is reasonable to expect that the concept of attorney independence would also give attorneys some autonomy over the decision to resist an unjust law.160 Civil disobedience is an accepted form of protest by other citizens and a critical tool for attorneys to prevent injustice that is not removed by an oath.161 The voluntary decision to join the bar cannot alone strip lawyers of this freedom.

D. Attorney Civil Disobedience and the Bar’s Privileged Position

The final argument against attorney civil disobedience is based on the fact that lawyers enjoy far more power within the legal system than other citizens. Some critics of lawyer noncompliance claim that the additional opportunities attorneys have to initiate reform lawfully make their civil disobedience unjustified.162 Actions that might be defensible if taken by a nonlawyer are inappropriate for lawyers, who have far greater legal options at their disposal.163 Other commentators argue that the power attorneys have within the

158 Freedman, supra note 2, at 1138; cf. THOREAU, supra note 18, at 243 (arguing that even a just government authorized by “the sanction and consent of the governed” had “no pure right over [his] person”). 159 Wilkins, supra note 100, at 514. 160 See id. (arguing that lawyers must have the “right to reject the formal requirements of rules and roles in situations when following the official path would produce substantively bad results”). 161 See supra notes 2, 27 and accompanying text (supporting the proposition that civil disobedience is an accepted form of protest). 162 See Cowen, supra note 2, at 597 (arguing that attorney civil disobedience is rarely justified since lawyers have “a greater opportunity than does the layman to rectify allegedly unjust or immoral laws within the existing legal structure”). 163 This argument presupposes that the validity of civil disobedience depends, in part, on the unavailability of other forms of protest. Others contend that such an assumption is unnecessarily restrictive on civil disobedience. See, e.g., Luban, supra note 22, at 801 (stating that one’s duty to obey the law turns solely on whether the laws are worthy of respect). 1090 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 153: 1057 legal system comes with the legitimate expectation that attorneys will exercise it.164 Attorneys alone may pull the levers of legal reform, established as a form of democratic protection of citizens.165 Thus, when lawyers choose to break the law in protest instead of utilizing the legal options available, they betray their role in our democracy.166 There are two responses to this objection. First, a lawyer’s power comes hand-in-hand with insight into the legal system that other citizens lack. In addition to giving attorneys a privileged position, a lawyer’s professional role provides her with unique opportunities to see the law operate wrongly or unfairly. Attorneys have a better sense of which laws create the greatest injustices and which may actually be improved through noncompliance. Moreover, an attorney’s role differs from that of nonlawyers in that they are charged as guardians of the administration of justice.167 These differences between members of the legal profession and other citizens may actually make “a lawyer . . . particularly well equipped to break or disregard the law as an act of civil disobedience.”168 In addition, it is possible to exaggerate the power attorneys have within the legal system. We have already seen the ways in which this power is limited.169 Even for attorneys, lawful reform of unjust laws

164 See Wilkins, supra note 86, at 274 (“Lawyers are more than ordinary citizens; they have been given a monopoly by the state to occupy a position of trust both with respect to the interests of their clients and the public purposes of the legal framework.”). 165 See id. (describing the role of lawyers as monopolistic and noting that this role is tied to the social good). 166 Not everyone agrees that lawyers should be regarded as playing a unique role within our society. See Charles Fried, The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation, 85 YALE L.J. 1060, 1080 (1976) (“Some of the more ecstatic critics have put forward the lawyer as some kind of anointed priest of justice . . . . But this is wrong. In a democratic society, . . . . [e]very citizen has the same duty to work for . . . the establishment of just institutions, and the lawyer has no special moral responsibilities in that regard.” (footnote omitted)). 167 See supra notes 47-49 and accompanying text (noting the duty imposed on lawyers to improve the law). 168 Carrie Menkel-Meadow, Private Lives and Professional Responsibilities? The Rela- tionship of Personal Morality to Lawyering and Professional Ethics, 21 PACE L. REV. 365, 388 (2001); see also Luban, supra note 28, at 259 (“[B]ecause lawyers are often better positioned than nonlawyers to realize the unfairness or unreasonableness of a law, lawyers often should be among the first to violate or nullify it, or to counsel others that it is acceptable to violate or nullify it.”). 169 See text accompanying notes 55-58 (describing the limits on lawful reform by lawyers). 2005] WITHIN EACH LAWYER’S CONSCIENCE 1091 may be either impossible or strictly limited.170 A lawyer may be the only individual who can protest the law, and civil disobedience may be the only way to lodge such protests. Thus, the power of attorneys alone should not prevent us from explicitly tolerating their civil disobedience.

IV. PROPOSALS FOR OFFICIAL TREATMENT OF ATTORNEY CIVIL DISOBEDIENCE

The current rules of legal ethics overdeter attorney civil disobedience due to the simple fact that they do not address it directly. Attor- neys are left with little guidance from the organized bar about which principles, if any, constitute a moral justification for violating the law. Moreover, the ethics rules are of little help in determining the professional consequences of disobedience.171 With so much uncertainty about civil disobedience in the law governing lawyers, committing it remains a high stakes gamble. As demonstrated in Part III, the justifications for excluding a more forthright discussion of conscientious noncompliance in the Model Code and Model Rules are weak. Rec- ognizing the option of attorney civil disobedience will not threaten the public’s respect for the law, the legal system, or the legal profession. Even the critics of attorney civil disobedience agree that there are some instances in which it is unreasonable to impose on lawyers a categorical duty to obey the law. The case of Nazi Germany presents a moral baseline at which these commentators concur that noncompliance is justified.172 The more complicated issue is how to define a lawyer’s duty to obey the law in legal regimes, such as ours, that are “generally just.”173 In this section, I will propose amendments to the Model Rules to better identify and accommodate instances of justified civil disobedience in the context of the American legal system.

170 See Minow, supra note 37, at 727-39 (describing the limits on lawful reform, the potential negative consequences in pursuing it, and the advantages that civil disobedience offers in certain situations). 171 See supra Part II (discussing the uncertain treatment in the legal ethics rules and case law of attorney civil disobedience). 172 See Terrell, supra note 28, at 833-34 (acknowledging that lawyers in a thoroughly unjust system may justifiably disobey the law); Wilkins, supra note 86, at 285 (“[N]ot even the most ardent defenders of the Dominant View of legal ethics, or of Positivism more generally, believe that either lawyers or citizens are under an absolute moral obligation to obey the law no matter how evil or corrupt.”). 173 See Wilkins, supra note 86, at 285 (noting that the important question is how to define the bar’s prima facie obligation to obey the law). 1092 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 153: 1057

A. Defining Civil Disobedience

Civil disobedience should be incorporated into the Model Rules as a defense to mitigate the effects of the charge that an attorney has violated her legal duties.174 To recognize such a defense in the codes, we must define what constitutes civil disobedience. This task

174 The difficulty of identifying attorney civil disobedience in some cases is illustrated by the recent development of multidisciplinary practices (MDPs). The most prominent types of MDPs are those which offer business consulting, financial planning, and legal services to their clients all at once by “partnering . . . lawyers and nonlawyers in multi-task service firms.” Jeffrey M. Jones, Comment, Bend, but Don’t Break: MDP Proposal Bends in the Right Direction, but—Crack!!—Goes Too Far, 54 SMU L. REV. 395, 395 (2001). While they provide the advantages of “one-stop shopping” to clients, lawyers working in MDPs routinely breach ethics rules about fee sharing, conflicts of interest, and client confidentiality. See id. (“But despite the business efficiencies of MDPs, such a combination of services is wrought with ethical difficulty.”); see also Linda Galler, Problems in Defining and Controlling the Unauthorized Practice of Law, 44 ARIZ. L. REV. 773, 774 (2002) (citing an ABA resolution that rejected MDPs by spelling out the core values that MDPs would ostensibly violate). Some observers have argued that MDPs are “blatantly violating” the rules of legal ethics and that their lawyers are engaged in massive civil disobedience, essentially dar- ing bar disciplinary boards to try to stop them. See Lawrence J. Fox, Accountants, the Hawks of the Professional World: They Foul Our Nest and Theirs Too, Plus Other Ruminations on the Issue of MDPs, 84 MINN. L. REV. 1097, 1097, 1105 (2000) [hereinafter Accountants Are Hawks] (describing the hiring of thousands of lawyers by the Big 5 accounting firms as civil disobedience); Lawrence J. Fox, Those Who Worry About the Ethics of Negotia- tion Should Never Be Viewed as Just Another Set of Service Providers, 52 MERCER L. REV. 977, 988 (2001) (arguing that accountants have tried to justify “the civil disobedience of the thousands of lawyers they have hired”); see also Galler, supra, at 774 (proposing solutions to address the civil disobedience of the accounting firm MDPs and their lawyers). Other observers believe that, whatever the transgressions of MDPs, characterizing their growth as civil disobedience goes well overboard. See, e.g., Erica Blaschke Zolner, Comment, Jack of All Trades: Integrated Multidisciplinary Practice, or Formal Referral System? Emerging Global Trends in the Legal and Accounting Professions and the Need for Accommoda- tion of the MDP, 22 NW. J. INT’L L. & BUS. 235, 252-53 (2001) (criticizing the claim that lawyers at MDPs are engaging in civil disobedience as a “doomsday prediction” that inaccurately depicts a crisis in the legal profession). The MDPs themselves, as they interpret the rules of ethics, argue that they have not violated them, conscientiously or otherwise. See Fox, Accountants Are Hawks, supra, at 1100 (reciting the MDP argument that their lawyers are not subject to the rules of professional ethics because they are not practicing law). No one—especially not the bar—seems to know quite how to handle the MDPs. Their practices represent a significant and intentional departure from current professional norms, but enforcement of the ethics provisions supposedly violated by MDPs has remained lax, and MDPs vigorously fought the few enforcement proceedings brought against them. See Jones, supra, at 425-26 (remarking that there is “very little in the way of enforcement [of the disciplinary rules] to show” for all the concern about MDPs, and reporting that an enforcement action against an MDP failed because the MDP “simply overwhelmed the bar with a phalanx of defense lawyers” (quoting Krys- ten Crawford, The Enemy Has Landed, and They Count Beans, AM. LAW., Dec. 1998, at 16)). 2005] WITHIN EACH LAWYER’S CONSCIENCE 1093 is more difficult than it would first seem. There is a wide range of attorney behavior that falls within the “gray areas” of positive law, with the result being that there are times when it may be difficult to pin down which actions constitute actual noncompliance. This is especially true when the alleged wrongdoer refuses to acknowledge her offense. A definition of civil disobedience in the ethics rules should include four elements. First, the act constituting civil disobedience must be public. An attorney’s actions should only fall within the definition if she acknowledges that she has broken the law and offers civil disobedience as a defense. Though there may be instances in which nonpublic lawbreaking is more effective for ensuring a just result, such behavior does not demonstrate the respect for the law that re- deems an attorney’s defiance and gives the system an opportunity to respond.175 Moreover, if a nonpublic violation were to become public, it would undermine trust in the legal profession much more than if it had been public from the beginning.176 Second, the disobedience must be nonviolent. A civil disobedience defense cannot be a safe harbor for violence. Noncompliance with unjust laws loses its legitimacy when it is violent.177 Third, the attorney must offer an explanation of her defiance based on moral or religious conviction.178 David Luban has persua- sively argued that the obligation to obey the law can be understood, in part, as an obligation to our fellow citizens.179 When attorneys (and other citizens) seek to convince the legal system that violating this obligation was justified, they owe their fellow citizens an explanation of why they believed the law was “wrong, stupid, or unfair.”180 Though identifying when an attorney’s moral or religious beliefs actually compel her to violate the law is a delicate matter, the jurisprudence regarding conscientious objectors to military service provides a helpful comparison. Citizens have been relieved from their military duty on grounds of ethical standards that had a “functional role in

175 See Zacharias, supra note 124, at 214-16 (discussing the problems caused by secret conscientious objection by attorneys). 176 See id. at 215-16 (“[S]ecret conscientious objection may contribute to the public’s general image of ineffective or disloyal lawyering . . . .”). 177 Cf. King, supra note 10 (describing the legitimacy of nonviolent direct action). 178 See Griffin, supra note 50, at 1259-61 (arguing that the civil disobedience model is appropriate for lawyers who break the law for religious reasons). 179 See LUBAN, supra note 37, at 35-43 (explaining the proposition that respect for the law is “respect for our fellows”). 180 Id. at 47. 1094 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 153: 1057 guiding the objector’s behavior throughout his everyday activities,” when these beliefs were held extremely deeply, and when the objector demonstrated his strength of convictions by accepting punishment.181 These standards provide the bar with a touchstone by which to judge whether an attorney’s asserted moral commitments are genuine. Finally, civil disobedience should exclude activities motivated primarily by material self-interest.182 An attorney who cannot establish this element is unlikely to succeed in establishing the previous one either. Explicitly stating this requirement, however, emphasizes—to the legal profession and to the public—the features of self-sacrifice and concern for the public interest that are central to civil disobedience.

B. Limiting Disciplinary Discretion

Commentators disagree on how much discretion should be afforded to disciplinary bodies in punishing attorneys who engage in civil disobedience. Generally, those scholars who wish to restrict discretion in punishing defiant attorneys are those who are also skeptical of the propriety of attorney civil disobedience.183 I believe, however, that a call for constrained discretion in the bar’s disciplinary system is an important element of making the legal profession more tolerant of lawyer noncompliance. There are two ways in which disciplinary discretion should be limited. First, I propose to limit the range of professional consequences that attorneys currently face for civil disobedience. The ethics rules currently provide no hint of the consequences of conscientious noncompliance. Rather, attorneys are left to gamble on the response of the bar’s disciplinary authorities, with little help in determining whether their disobedience will be ignored, result in a slap on the wrist, or cost them their licenses.184 Without a clear picture of the risk to their careers, attorneys cannot make an informed evaluation of whether they should conscientiously violate a law. Establishing a more

181 See Zacharias, supra note 124, at 202-05 (discussing legal standards for granting conscientious objector status). 182 Cf. Luban, supra note 28, at 259 n.34 (suggesting that civil disobedience should exclude actions taken by a lawyer for “intended pecuniary gain”). 183 See, e.g., Terrell, supra note 28, at 831-34 (opposing increased discretion in in- terpreting the rules and criticizing attorney civil disobedience in a “generally just” legal system). 184 See supra text accompanying note 77 (describing the uncertainty about the bar’s response to civil disobedience). 2005] WITHIN EACH LAWYER’S CONSCIENCE 1095 limited range of punishment within the ethics rules for disciplining civil disobedience will allow lawyers to consider noncompliance more thoughtfully. Because of a lawyer’s heightened duty to obey the law, some professional disciplinary consequences are appropriate for attorneys who commit civil disobedience.185 But at the same time, the professional penalty to attorneys cannot be so great that their very ability to practice law may be at stake, as it currently is.186 Attorneys should be subject, at the very worst, to no more than a temporary suspension of their ability to practice. I also propose to limit the ability of disciplinary counsel to turn a blind eye to attorney civil disobedience.187 As Professor Bruce Green has observed, the attitude of disciplinary counsel towards conscientious lawbreaking is often that lawyers should go ahead and do it, but “[j]ust don’t tell us about it.”188 This form of prosecutorial discretion undermines the justifications for and effectiveness of attorney civil disobedience in several ways. First, the exercise of such discretion strips civil disobedience of its value as a tool for improving the law. By giving a defiant attorney a pass, the bar minimizes the law-morality conflict that the lawyer’s disobedience highlights. This robs both the bar and the legal system of an opportunity to publicly evaluate the attorney’s criticism and to adequately consider the most appropriate response. Second, attorneys who have committed civil disobedience show their respect for the law by accepting punishment. If lawyers face no disciplinary proceedings for their violations, this element of respect is not displayed to the public. This potentially undermines the public’s respect for the law and for the legal profession.189 Finally, prosecutorial discretion detracts from the generality of the ethics rules and weakens their moral authority.190 This is contrary to the purpose of civil disobedience, which is to strengthen legal authority, not to undermine it.

185 See supra notes 148-49 and accompanying text (discussing a lawyer’s increased responsibility to obey the law). 186 See Terrell, supra note 28, at 835-36 (noting that disbarment is a potential consequence of civil disobedience). 187 Compare id. at 840 (arguing against increasing discretion within legal ethics to accommodate civil disobedience), with Strassberg, supra note 23, at 951-52 (supporting increased prosecutorial discretion for justified noncompliance). 188 Green, supra note 77, at 1308 (quoting an unidentified disciplinary counsel). 189 See supra Part III.A-B (discussing how attorneys show respect for the law by accepting punishment willingly). 190 See supra note 107 and accompanying text (noting that the fairness and generality of the law is the feature that earns it our respect). 1096 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 153: 1057

CONCLUSION

Though lawyers must often resolve conflicts between their legal duties and their moral obligations, the Model Rules and Model Code provide little guidance to attorneys for resolving these struggles. The ethics rules are unhelpful in determining if or when moral principles outweigh a lawyer’s obligation to obey the law, leaving attorneys who wish to engage in civil disobedience to gamble their careers on the discretion of the bar’s disciplinary authorities. Moreover, the arguments offered for continuing to ignore conscientious noncompliance in the codes of ethics are unpersuasive. The legal profession should directly address the issue of civil disobedience in its rules of ethics. The bar will be strengthened by the explicit acknowledgement that moral considerations can supercede even an attorney’s legal duties. Our society expects lawyers, who remain its most important custodians of the law’s fairness and justice, to exercise moral judgment for the good of our legal system. As Gan- dhi’s example teaches us, an attorney need not sacrifice her respect for the law or undermine her role in the legal system by committing civil disobedience. It is past time for the bar to recognize the possibility that an attorney may best fulfill her duties to the law and to our society through conscientious noncompliance. Fordham Urban Law Journal

Volume 27, Issue 6 1999 Article 4

Lawyering for Social Change

Karen L. Loewy∗

∗

Copyright c 1999 by the authors. Fordham Urban Law Journal is produced by The Berkeley Electronic Press (bepress). http://ir.lawnet.fordham.edu/ulj Lawyering for Social Change

Karen L. Loewy

Abstract

This Note explores the significance, legitimacy and methodology of lawyering for social change. It begins by examining lawyers’ motives for entering into such work and the theoretical approaches toward political lawyering and the methodologies employed to effect change. It raises the question of whether it is justifiable for a lawyer to drive social change specifically considering his unique access to the legal system. The Note concludes that it is entirely legitimate for a lawyer to engage in work for social change in order to ensure that the rights of all people are protected whether through litigation, public education seminars, rallies, lobbying or writing for scholarly journals. LAWYERING FOR SOCIAL CHANGE

Karen L. Loewy*

The continued existence of a free and democratic society depends upon recognition of the concept that justice is based upon the rule of law grounded in respect for the dignity of the individual and his capacity through reason for enlightened self-government. Law so grounded makes justice possible, for only through such law does the dignity of the individual attain respect and protection. Without it, individual rights become subject to unre- strained power, respect for law is destroyed, and rational self- government is impossible. Lawyers, as guardians of the law, play a vital role in the preservation of society.1

INTRODUCTION Lawyering for social change, often termed political lawyering, can be defined in many ways.2 One definition of political lawyering construes the word "politics" in the classical sense of Plato and Aristotle, viewing it "as the art concerned with what it means to be a human being; what is the best life for a human being; and.., the ways in which we can order our living together so that good human lives will emerge."3 Another definition focuses on the lawyer's ability to fight the status quo and to provide redress and representation to the voiceless.4 Lawyering for social change is "a form of advocacy that consciously [strives] to alter structural and societal impediments to equity and decency ' 5 as the lawyer works to provide "legal representation to individuals, groups, or interests that historically have

* J.D. Candidate, Fordham University School of Law, 2000; B.A. in Near East- ern and Judaic Studies and Music and certificates in Women's Studies and Legal Stud- ies, Brandeis University, 1996. I would like to thank Professor Russ Pearce for his editorial comments on early drafts and the Stein Scholars Program for continued support. Special thanks to David S. Widzer for his endless love and encouragement. 1. ABA Model Code of Professional Responsibility, Preamble and Preliminary Statement (1981) in THOMAS D. MORGAN & RONALD D. ROTUNDA, 1998 SELECrED STANDARDS ON PROFESSIONAL RESPONSIBILITY (1998) [hereinafter "Model Code"]. 2. This Note uses the terms "political lawyering," "lawyering for social change" and "social change lawyering" interchangeably. 3. Peter M. Cicchino, To Be A PoliticalLawyer, 31 HARV. C.R.-C.L. L. REV. 311 (1996). 4. See Preface to Symposium, Political Lawyering Conversations on Progressive Social Change, 31 HARV. C.R.-C.L. L. REV. 285 (1996). 5. Id. at 285. 1869 1870 FORDHAM URBAN LAW JOURNAL [Vol. XXVII been unrepresented in our legal system, or who are fighting the established power or the established distribution of wealth."' 6 So- cial change lawyering refers to those "lawyers whose work is directed at altering some aspect of the social, economic and/or political status quo" and who believe that current societal conditions obstruct the full participation of and sufficient benefits to subordinated people.7 Professor Martha Minow also suggests that political lawyering "involves deliberate efforts to use law to change society or to alter allocations of power."8 She examines the meanings of "law," ".social" and "change," noting that "law" encompasses both the formal rules promulgated by the various branches of government and the customs of authority and opposition that have arisen both around and outside of the public institutions intended to change those rules.' "Social" connotes the essential links between politics and culture through which people shape their awareness of and ambi- tions for society, and the arenas for deliberation over what morality and economic justice should require.10 Finally, she posits that "'[c]hange' includes not only specific, discrete alterations, but also processes of renovation and continuing challenge of the 1 status quo.' This Note explores the significance, legitimacy and methodology of lawyering for social change. Part I examines the lawyer's motives for entering into this work, as well as notions of how the lawyer's role affects her work for social change. This Part also explores theoretical approaches toward political lawyering and the methodologies employed to effect change. Part II examines whether it is justifiable for a lawyer to drive social change, taking into consideration the ramifications of different images of the lawyer's role and the dangers of a lawyer's working to further social

6. Debra S. Katz & Lynne Bernabei, Practicing Public Interest Law in a Private Public Interest Law Firm: The Ideal Setting to Challenge the Power, 96 W. VA. L. REV. 293, 294-95 (1993-94). 7. Louise G. Trubek, Embedded Practices: Lawyers, Clients, and Social Change, 31 HARV. C.R.-C.L. L. REV. 415 n.2 (1996). 8. Martha Minow, Political Lawyering: An Introduction, 31 HARV. C.R.-C.L. L. REV. 287, 289 (1996). 9. See Martha Minow, Law and Social Change, 62 U. Mo. KAN. Crry L. REV. 171, 176 (1993) [hereinafter Minow, Law and Social Change]. 10. See id. at 182. Minow rejects the strict dictionary definition of "social" - "'of or relating to human society"' - as too vague, claiming that within the context of law and social change, "social" is often treated too narrowly. Id. at 176 n.30 (citing WEB- STER'S THIRD NEW INT'L DICTIONARY 2161 (1967)). 11. Id. at 182. 20001 LAWYERING FOR SOCIAL CHANGE 1871 change, particularly regarding the lawyer-client relationship and anti-majoritarian uses of the courts. This Part also examines arguments for the legitimacy of this enterprise stemming from the role of the law as an expression of societal values and from the unique access lawyers have to the legal system. Part III argues that it is entirely legitimate for a lawyer to engage in work for social change in order to ensure that the rights of all people are protected. This Part addresses the objections raised to political lawyering, concluding that these objections can either be overcome through various lawyering techniques or can be counterbalanced by the need to ensure protection of legal rights. In addition, this Part puts forth a model of lawyering that incorporates moral activism with a flexibil- ity of ideology and technique, allowing the lawyer to work for the greater good.

1. THE LAWYER'S ROLE AND TECHNIQUE IN WORKING FOR SOCIAL CHANGE General definitions of the endeavor of lawyering for social change do not really explain why working for social change is specifically an activity for lawyers. These definitions do not directly address the historical context of and the varied reasoning behind the field of lawyering for social change. They do not address the nuances of different models of the lawyer's role. They do not indicate how a lawyer can actually accomplish this goal. This Part examines different conceptions of the lawyer's role, focusing on the notions of lawyers as a governing class and of lawyers as moral activists, in order to illuminate the lawyer's motivations for working for social change. It then explores the theories underlying the use of these models and the use of particular types of efforts in achieving true change.

A. The Lawyer's Role - Or Why It Is a Lawyer's Job to Do This Work At All The moral doctrines that regulate the legal profession discuss and promote the lofty ideals of informed democracy and the autonomy of every human being.12 The professional responsibility codes exhort lawyers to protect the system that safeguards individual rights in order to preserve societal values.13 Lawyers have an obli-

12. See Preamble & Preliminary Statement to Model Code, supra note 1. 13. See id.; see also Preamble to ABA Model Rules of Professional Conduct, A Lawyer's Responsibilities (1997), in THOMAS D. MORGAN & RONALD D. ROTUNDA, 1998 SELECTED STANDARDS ON PROFESSIONAL RESPONSIBILITY (1998) [hereinafter 1872 FORDHAM URBAN LAW JOURNAL [Vol. XXVII gation to work for the betterment of the legal system and have a unique role as "guardians of the law."1 4 These ideals would seem to appeal to the moral center of every lawyer's soul, yet the codes promote a role of the lawyer that only addresses one conception of lawyering - that of lawyers as a governing class. This image views lawyers as a noble assembly that works for the people out of a 5 sense of duty stemming from their superior skills and judgment.' Other images of a lawyer's role, however, promote a different focus. The moral activist model envisions lawyering as a principled 6 endeavor inextricable from the lawyer's own personal morality.' Lawyers enter into their role out of a sense of what is moral and right and are held morally accountable for their actions.' 7 This section explores these notions and how they motivate lawyers to engage in political lawyering.

1. The Governing Class In 1905, Louis D. Brandeis addressed undergraduates at Harvard, lamenting the general neglect among lawyers of their ob-

"Model Rules"] (noting that a lawyer has a duty to uphold the legal process and that lawyers "play a vital role in the preservation of society."); Preamble to ABA Canons of Professional Ethics (1908), inTHOMAS D. MORGAN & RONALD D. ROTUNDA, 1998 SELECTED STANDARDS ON PROFESSIONAL RESPONSIBILITY (1998) [hereinafter "ABA Canons"]; Preamble to ABA Torts and Insurance Practice, Lawyer's Creed of Profes- sionalism (1988), inTHOMAS D. MORGAN & RONALD D. ROTUNDA, 1998 SELECTED STANDARDS ON PROFESSIONAL RESPONSIBILITY (1998) ("As a lawyer, I must strive to make our system of justice work fairly and efficiently."). 14. Preamble & Preliminary Statement to Model Code, supra note 1. 15. See, e.g., GEOFFREY HAZARD, JR. ET AL., THE LAW AND ETHICS OF LAWYER- ING 1086 (2d ed. 1994); Louis D. Brandeis, The Opportunity in the Law, 39 AM. L. REV. 555 (1905); ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 102-12 (Henry Reeve trans., 3d ed. 1838). See generally JEROLD S. AUERBACH, UNEQUAL JUSTICE: LAWYERS AND SOCIAL CHANGE IN MODERN AMERICA (1976) (examining the responses of elite lawyers to social change in the twentieth century). 16. See, e.g., DAVID LUBAN, LAWYERS AND JUSTICE: AN ETHICAL STUDY 160-74 (1988) [hereinafter LUBAN, LAWYERS AND JUSTICE] (discussing throughout part I the difficulties inherent in the adversary system and advocating a system of lawyer accountability); David Luban, The Social Responsibility of Lawyers: A Green Perspec- tive, 63 GEO. WASH. L. REV. 955 (1995); David Luban, The Noblesse Oblige Tradition in the Practice of Law, 41 VAND. L. REV. 717 (1988) [hereinafter Luban, Noblesse Oblige]; Paul R. Tremblay, PracticedMoral Activism, 8 ST. THOMAS L. REV. 9 (1995); Deborah L. Rhode, Ethical Perspectives on Legal Practice,37 STAN. L. REV. 589, 643- 45 (1985); MARK V. TUSHNET, MAKING CIVIL RIGHTS LAW: THURGOOD MARSHALL AND THE SUPREME COURT, 1936-1961 (1994) [hereinafter TUSHNET, CIVIL RIGHTS]; David R. Esquivel, Note, The Identity Crisis in Public Interest Law, 46 DUKE L.J. 327 (1996); Janine Sisak, Note, Confidentiality, Counseling, and Care: When Others Need to Know What Clients Need to Disclose, 65 FORDHAM L. REV. 2747, 2759-61 (1997). 17. See LUBAN, LAWYERS & JUSTICE, supra note 16, at 160. 20001 LAWYERING FOR SOCIAL CHANGE 1873 ligation "to use their powers for the protection of the people.' 18 Brandeis raised a call for more "people's lawyers,"19 encouraging lawyers to fulfill the obligation created by their specialized training and highly defined sense of judgment.2 0 He believed that the lawyer's aptitude for abstract thought and empirical astuteness, her ability to reach conclusions in real time, her keenly honed judgment of people, her tolerance and her practical attitude constituted a unique composite of traits that perfectly suited the lawyer for public life.21 He recognized that lawyers enjoy a social status re- sembling that of a noble class, noting Alexis de Tocqueville's earlier reference to lawyers as an American aristocracy.22 This model of lawyering traces the lawyer's obligation to serve the people to this elevated position. 23 The governing class notion posits that because legal education and training emphasize objective reasoning and decision-making, lawyers are better equipped to struggle with the matters of democracy.24 Further, the lawyer's own interests are

18. AUERBACH, supra note 15, at 34-35 (citing Brandeis, supra note 15). 19. Brandeis' notion of "people's lawyers" stemmed from his belief that lawyers had a duty to use their ability and authority to protect the greater good. "The great opportunity of the American bar is and will be to stand again as it did in the past, ready to protect also the interests of the people." Brandeis, supra note 15, at 559-60. He proposed that in order to rectify the legal profession's slant toward representing the wealthy, lawyers should advise the large private interests in their private practice, but should also pursue public sector responses to the inequities that result from that slant. See id. at 562-63. 20. See id. 21. See Luban, Noblesse Oblige, supra note 16, at 720-21. 22. See id. at 718-19 (citing DE TOCQUEVILLE, supra note 15, at 102-12). De Toc- queville, having visited the United States, viewed lawyers as an aristocracy, wielding an inordinate amount of power over the dealings of society. See DE TOCQUEVILLE, supra note 15, at 102-12. De Tocqueville proposed that lawyers, like aristocrats, have a duty higher than mere commercialism and through their public lives, assume responsibility for the common good, that the common good will be attained by decreas- ing the tyranny of the majority and quelling social freedoms in the name of order, that this will be accomplished by restraining the people, and that lawyers are particularly adapted for this type of work by their training and mental propensities. See Luban, Noblesse Oblige, supra note 16, at 719 (citing DE TOCQUEVILLE, supra note 15, at 271- 76). 23. See Brandeis, supra note 15, at 560. 24. See Russell G. Pearce, Rediscovering the Republican Origins of the Legal Eth- ics Codes, 6 GEO. J. LEGAL ETHICs 241, 253 (1992). [Lawyers] have a responsibility "to serve as a policy intelligencia ... and to use the authority and influence deriving from their public prominence and professional skill to create and disseminate, both within and without the context of advising clients, a culture of respect for and compliance with the purposes of the laws." Id. at 253 (quoting Robert W. Gordon, The Independence of Lawyers, 68 B.U. L. REV. 1, 14 (1988)). 1874 FORDHAM, URBAN LAW JOURNAL [Vol. XXVII completely divorced from this endeavor, as the lawyer's duty is to promote the common good.25 This image of lawyering pervaded legal culture for years, and to some extent, still does.26

2. The Moral Activist Another image of the lawyer's role is that of moral activism. The moral activist views lawyering as a principled endeavor, seeing attorneys as morally accountable for the legal principles they advocate.27 Professor David Luban describes moral activism as "a vision of law practice in which the lawyer who disagrees with the morality or justice of a client's ends does not simply terminate the relationship, but tries to influence the client for the better. ' 28 Law- 29 yers would decline or withdraw from cases they deem unjust.

25. See id. (tracing the historical roots of the ethical codes to the work of George Sharswood). [A] lawyer's principle obligation was the republican pursuit of the community's common good even where it conflicts with either her client's or her own interests. Sharswood defined the common good as the protection of order, liberty, and property in order to provide individuals with the opportunity to perfect themselves. Id. at 241. 26. See HAZARD, supra note 15, at 1086; AUERBACH, supra note 15, at 307-08; Pearce, supra note 24; see also Model Code, supra note 1, EC 8-1 ("By reason of education and experience, lawyers are especially qualified to recognize deficiencies in the legal system and to initiate corrective measures therein."); Preamble to Model Rules, supra note 13 (linking the lawyer's duty to improve the legal system itself and the access of the powerless to that system to the lawyer's place in society and in the legal profession). As a public citizen, a lawyer should seek improvement of the law, the administration of justice and the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education. A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance, and should therefore devote professional time and civic influence in their behalf. Preamble to Model Rules, supra note 13. 27. See LUBAN, LAWYERS & JUSTICE, supra note 16, at 160-61. 28. Id. at 160. 29. See id.; see also Model Rules, supra note 13, Rule 1.16(b) (stating that unless ordered to do so by a tribunal, "a lawyer may withdraw from representing a client if ... a client insists upon pursuing an objective that the lawyer considers repugnant or imprudent"); Model Code, supra note 1, EC 2-26 ("A lawyer is under no obligation to act as advisor or advocate for every person who may wish to become his client[.]"); EC 2-30 ("[A] lawyer should decline employment if the intensity of his personal feel- ing, as distinguished from a community attitude, may impair his effective representation of a prospective client."); ABA Canons, supra note 13, Canon 31 ("Responsibility for Litigation"). 2000] LAWYERING FOR SOCIAL CHANGE 1875 Lawyers derive motivation from their personal determinations of what is right and good. Their actions come from their own notions of justice and morality rather than from any duties they owe. An example of moral activism lies in the work of Charles Hamil- ton Houston' and Thurgood Marshall 3' in the civil rights movement.32 Houston described the type of lawyering he performed as ' 33 "social engineering. This model advocates that "[a]s social engi- neers, lawyers [have] to decide what sort of society they [wish] to construct, and ... use the legal rules at hand as tools. '3 4 Social engineering involves a moral decision about the types of battles worth fighting, followed by the utilization of all the tools at a lawyer's disposal, including the rules of the courts and an awareness of the social setting in which the law operates. 35 Houston and Mar- shall's civil rights crusade stemmed from their own very personal desires to fight discrimination against African Americans.36 They aimed to solve what they saw as crucial social problems.37 This

No lawyer is obligated to act either as adviser or advocate for every person who may wish to become his client. He has the right to decline employment. Every lawyer upon his own responsibility must decide what employment he will accept as counsel, what causes he will bring into Court for plaintiffs, what cases he will contest in Court for defendants. ABA Canons, supra note 13, Canon 31. 30. See Steven H. Hobbs, From the Shoulders of Houston: A Vision for Social and Economic Justice, 32 How. L.J. 505 (1989). Charles Hamilton Houston was a prominent civil rights attorney, special counsel for the NAACP, and professor and dean of Howard University School of Law. He worked with Thurgood Marshall on a wide range of landmark civil rights cases. See id. at 506. 31. Thurgood Marshall was a prominent civil rights attorney, working as staff attorney for the NAACP Legal Defense and Education Fund, before serving as a judge and eventually becoming the first African American Justice on the United States Su- preme Court. See TUSHNET, CIVIL RIGHTS, supra note 16; Mark V. Tushnet, The Jurisprudenceof Thurgood Marshall,1996 U. ILL. L. REV. 1129, 1131 (1996) [hereinafter Tushnet, Thurgood Marshall]. 32. See Tushnet, supra note 16, at 4-5; Hobbs, supra note 30. 33. See TUSHNET, CIVIL RIGHTS, supra note 16, at 6. 34. Id. 35. See id. Tools used by political lawyers include, among others, impact litigation, legislative advocacy, public education, media initiatives, monitoring governmental policies and building coalitions. See, e.g., About NOW LDEF (visited Feb. 25, 2000) ; About the NAACP Legal Defense Fund (visited Feb. 25, 2000) . 36. See Hobbs, supra note 30, at 509-12; TUSHNET, CIVIL RIGHTS, supra note 16, at 4-5. 37. See Tushnet, Thurgood Marshall,supra note 31, at 1141. Tushnet critiques the notion of social engineering as stemming from the governing class idea of lawyers having specialized knowledge unavailable to the public. This Note suggests, however, that Tushnet mischaracterizes Marshall's utilization of the social engineering model, suggesting that Marshall's personal motivations prevent the assignation of this model to the governing class. 1876 FORDHAM URBAN LAW JOURNAL [Vol. XXVII conception of moral activism, while originating in the civil rights movement, continued through the women's, gay and lesbian, and poverty rights movements, among others, encouraging lawyers to use the legal tools at their disposal to work toward these morality- driven goals. 8

B. The Models and Methodologies of Lawyering for Social Change The techniques employed in lawyering for social change vary greatly. One achieves success with a multitude of strategies and efforts. This section explores the theoretical and methodological strategies lawyers may use in working for social change. 1. Theoretical Models of Lawyering for Social Change Three ways of approaching the achievement of social change are the notions of "cultural shift," "negotiation of strategy" and "dimensional lawyering." These views are not mutually exclusive, but they are informed by different underlying ideologies. a. Cultural Shift The creation of a cultural shift is one view of the way to make true social change. 39 Professor Thomas Stoddard suggests that social change and legal change are not always coexistent, that one does not always prompt the other.4' Furthermore, attempts at law reform may only succeed on a formal level and may not have any real impact on the larger cultural context into which they fit.41 The law's traditional mechanisms can be adapted, however, to improve society in extra-legal ways. This use of the law is what Stoddard 42 calls the law's culture-shifting capacity. A cultural shift may take place when far-reaching or significant change occurs, public awareness of that change is widespread, the public generally perceives that change as legitimate or valid, and there is continuous, overall enforcement of the change. 43 One theory perhaps underlying the notion of cultural shift and its belief that all of these components must occur contemporaneously is that

38. See MARTHA F. DAVIS, BRUTAL NEED: LAWYERS AND THE WELFARE RIGHTS MOVEMENT, 1960-1973 2 (1993). 39. See Thomas B. Stoddard, Bleeding Heart: Reflections on Using the Law to Make Social Change, 72 N.Y.U. L. REV. 967 (1997). 40. See id. at 972. 41. See id. 42. See id. at 973. 43. See id. at 978. 2000] LAWYERING FOR SOCIAL CHANGE 1877 lawyers may not be able to divert the direction of a rule of law very far off course from the beliefs of elected officials." Without the support of the general public and the enforcement of the change, change cannot really occur. To make major changes in critical social relationships, one must change the way people think about the issue.45 A new law that affects a large number of people in fundamental ways creates the potential for culture shifting. 6 For the shift to have cultural resonance, however, the general public must also perceive the shift. It must be "generally discerned and then absorbed by the society as a whole."47 This common awareness must also be accompanied by some sense of public acceptance grounded in a sense of legitimacy or validity, as awareness is never enough to assure compliance.48 Finally, unless the rules are enforced, the public will disregard them. Unless a new law promotes public awareness and adherence to the rules, as well as provides appropriate sanction for their disregard, culture-shifting cannot occur.49 Professor Nan Hunter suggests an additional requirement for a true cultural shift.50 She posits that in addition to the four requirements listed above, some type of public engagement in the effort to change the law must occur.51 When a change stems from a mobil- ized public demand, whether through litigation or legislation on state or federal levels, the resulting change has an immediate culture-shifting impact.5 2 She thus places great emphasis on mobilization and empowerment of those seeking legal assistance, and strengthening the represented constituency or community organization.53 This empowerment is valuable because the constituent community will work toward larger, more fundamental change, viewing the law as a tool to accomplish this change as opposed to

44. See James Douglas, The Distinction Between Lawyers as Advocates and As Activists; And the Role of the Law School Dean in Facilitatingthe Justice Mission, 40 CLEV. ST. L. REV. 405, 407 (1992). 45. See id. 46. See Stoddard, supra note 39, at 978. 47. Id. at 980. 48. See id. at 982-83 (stating that "'[c]ulture-shifting' can never take place in an atmosphere of resistance. It requires, at a minimum, an aura of moral and cultural legitimacy to sustain widespread adherence to any new code of conduct."). 49. See id. at 986-87. 50. See Nan D. Hunter, Lawyeringfor Social Justice, 72 N.Y.U. L. REV. 1009, 1019 (1997). 51. See id. 52. See id. at 1020. 53. See id. 1878 FORDHAM URBAN LAW JOURNAL [Vol. XXVII viewing the reform of the law as the end goal in and of itself.54 Consequently, these communities will not be constrained by the limits of the law and will better serve as repeat players in the scheme of social change.55 Professor Chai Feldblum suggests that in order for the public to believe in the legitimacy of a change, whether enacted by the legislature or decided by a court, there must be an engagement with the morality underlying the issue.56 She maintains that the moral discourse surrounding the debate of social issues must not be dis- counted.57 While legal commentators have long documented the impact of judicial reasoning on the moral rhetoric surrounding a controversial issue, the legislators' discourse has lacked similar recognition.5 8 Because the surrounding rhetoric is so powerful, it must involve a real engagement with the underlying moral issues, as this grappling will have an impact on the type of culture-shift that occurs.59 Because the issues around which social change occur are those that are grounded, at their core, in morality, the more the moral aspects of the issues are emphasized, the greater the impact 60 of the cultural shift. b. Negotiation of Strategy Other models of social change efforts focus on employing strategies that fit particular situations. Minow suggests that for true change to occur, there must be a negotiation of result-oriented and process-oriented activity.6' She notes that many problems do not fit the pattern of problem and solution, and therefore, different approaches must be taken to accomplish different goals. 62 The multi- layered strategies of legal advocacy organizations recognize the necessity for these different approaches.63

54. See id. 55. See id. at 1020-21. 56. See Chai R. Feldblum, The Moral Rhetoric of Legislation, 72 N.Y.U. L. REv. 992, 994 (1997). 57. See id. at 994. 58. See id. at 994-95. 59. See id. at 994. 60. See id. 61. See Minow, Law and Social Change, supra note 9, at 179-82. Minow generally discusses result-oriented activities as those aimed at discrete, specific changes and process-oriented activities as those aimed at a continuous process of change. See id. 62. See id. at 181 (citing Ota de Leonardis, Deinstitutionalization,Another Way: The Italian Mental Health Reform, 1 HEALTH PROMOTION 151, 153 (1986)). 63. See, e.g., About NOW LDEF, supra note 35. NOW LDEF pursues equality for women and girls in the workplace, the schools, the family and the courts, through litigation, education, and public 2000] LAWYERING FOR SOCIAL CHANGE 1879

Professor Cornel West suggests that the impact of progressive lawyers comes from a combination of defensive work against cultural conservatism, 64 radical legal practice through academic critiques of liberal paradigms 65 and participation in extra- parliamentary social movements.66 Further, West proposes that lawyers have the role of curing society's "historical amnesia," ensuring the preservation of past struggles, and building on "the traces and residues of past conflicts. '67 By using previous conflicts to provide a framework for their endeavors, lawyers for social change can build on previously earned political ground. Social engineering, as advocated by Houston and Marshall, is a clear example of negotiation of strategy. As Professor Mark Tushnet notes, "They had to use the legal materials available to them to shape a working solution to the pressing problems of social life that lawyers confronted. ' 68 This methodology in addressing the realities of the African American situation paved the way for other social movements, providing a "model for using litigation to change legal and social structures that marginalized a segment of society. ' 69 The NAACP Legal Defense and Education Fund's campaign to desegregate public schools served as the prototype for

information programs. NOW LDEF's docket of 70 cases covers a wide range of gender equity issues. NOW LDEF also provides technical assistance to Congress and state legislatures, employs sophisticated media strategies, dis- tributes up-to-the-minute fact sheets, and organizes national grassroots coalitions to promote and sustain broad-based advocacy for women's equality. Id. Litigation, the foundation of LDF's strength, remains the central element of LDF's efforts.... At the same time, LDF is continuing its tradition of inno- vation by expanding its efforts outside the courtroom. Monitoring laws and government policies, advocating for change, keeping the general public informed, and strengthening coalitions with other concerned organizations are among the many ways LDF is active today. About the NAACP Legal Defense Fund supra note 35. See also About Lambda (visited Feb. 24, 2000) ("Lambda Le- gal Defense and Education Fund is a national organization committed to achieving full recognition of the civil rights of lesbians, gay men, and people with HIV/AIDS through impact litigation, education, and public policy work."). 64. See Cornel West, The Role of Law in Progressive Politics, 43 VAND. L. REV. 1797 (1990). For an example of this kind of work, see, e.g., Guardian of Liberty: American Civil Liberties Union (visited Feb. 24, 2000) (detailing the ACLU's efforts to preserve civil liberties). 65. See West, supra note 64 (providing an example of such an academic critique). 66. See id. at 1799-1801 (1990). Examples of such social movements include the civil rights movement and the poverty rights movements. See TUSHNET, CIVIL RIGHTS, supra note 16; DAVIS, supra note 38. 67. See West, supra note 64, at 1802. 68. Tushnet, Thurgood Marshall,supra note 31, at 1141. 69. DAVIs, supra note 38, at 2. 1880 FORDHAM URBAN LAW JOURNAL [Vol. XXVII the social movements that followed.70 Thus negotiation of strategy is a methodology used widely by social movements today.7'

c. Dimensional Lawyering Professor Lucie White divides the work of social change lawyers into three "dimensions. ' 72 The first dimension is an advocacy aimed at making the law more amenable to the social welfare needs of disempowered groups.73 For example, litigation and lobbying can expand or improve welfare programs, their administration and their monitoring.74 The second dimension is advocacy that seeks to reconstruct values in the dominant culture, thus encouraging greater sensitivity to the injustices faced by the underrepresented, as well as mobilizing greater resources on their behalf.75 An educational or dramatic appearance in court or before a legislature designed to evoke empathy in the audience may achieve these ends. 76 The third dimension is advocacy focusing on the client community's own political consciousness, which thus empowers them to change their own world. 77 This last dimension involves "collaborative communicative practice. ' 78 By viewing this work in terms of dimensions rather than models, it is possible for any single act to create several different waves of impact. This approach therefore encourages an integrated approach in which every action can have multiple impacts and achieve multiple goals.

2. Approaches Toward and Methods of Lawyering for Social Change Whichever theoretical underpinning a political lawyer employs, she also has a broad range of methodological options in pursuing this ideology. This section explores these methods, focusing on the

70. See id. at 1-2. 71. See supra note 63. 72. See Lucie E. White, Collaborative Lawyering in the Field? On Mapping the Paths from Rhetoric to Practice, 1 CLINICAL L. REV. 157 (1994) [hereinafter White, CollaborativeLawyering]. 73. See id. This dimension would also encompass work on underrepresented issues. 74. See id. 75. See id. 76. See id. These notions parallel those of a cultural shift requiring acceptance by mainstream society. See discussion supra text accompanying notes 48-49. 77. See White, CollaborativeLawyering, supra note 72, at 157. 78. Id. at 158. See also infra text accompanying notes 165-174. 20001 LAWYERING FOR SOCIAL CHANGE 1881 organization's overall disciplinary approach and the actual tools at the lawyer's disposal.

a. Overall OrganizationalApproach: Exactly What Type of Work Is This? Regardless of the theoretical model employed in a social movement, most lawyering for social change fits into one of two broad methodological models: 1) doctrinal development or 2) direct client advocacy. 79 Doctrinal development, also known as impact litigation, focuses on the evolution of a particular novel legal principle and is exemplified by the First Amendment test-case approach of the American Civil Liberties Union ("ACLU"). 80 Organizations such as the ACLU "select cases that will have the greatest impact, cases that will have the potential to break new ground and to establish new precedents that will strengthen the freedoms we all ' 81 enjoy. Direct client advocacy, on the other hand, involves serving the legal needs of a given client, as illustrated by in-house organizational lawyers or legal services offices.82 Legal services offices once encompassed aspects of both models,83 but restrictions on the use of legal services funding have prevented such organizations from engaging in large-scale impact work.84 Other hybrids of these models include organizations with in-house legal units functioning as both corporate counsel and law reform units, such as Planned Parenthood Federation of America, 85 and organizations that provide legal services and perform law reform work while leaving or-

79. See Hunter, supra note 50, at 1021. 80. See id. Other examples include Lambda LDF's work to secure the right to marry for gays and lesbians, see About Lambda, supra note 63, and NOW LDEF's work to protect reproductive freedom and secure gender equity, see About NOW LDEF, supra note 35. 81. Guardian of Liberty: American Civil Liberties Union, supra note 64. 82. See Hunter, supra note 50, at 1021. 83. See id. 84. See Symposium, The Future of Legal Services: Legal and Ethical Implications of the LSC Restrictions,25 FORDHAM URB. L.J. 279, 280 (1998) (noting that Congress restricted the kinds of services local legal services organizations receiving federal money could provide, including proscriptions on welfare reform lobbying and participation in class actions (citing Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134, § 504(7), (16), 110 Stat. 1321 (1996))). 85. See A History of ProtectingReproductive Health Services in the Courts, (visited Feb. 24, 2000) (detailing Planned Parenthood's work before the United States Supreme Court). 1882 FORDHAM URBAN LAW JOURNAL [Vol. XXVII ganizational issues to outside counsel, such as Gay Men's Health Crisis.86

b. Methodology: What Are the Tools to Use? Which tool the lawyer decides to employ at a given time is often a matter of careful interpretation and prediction on the part of the lawyer. The devices available to lawyers working for social change are diverse and varied. With mechanisms such as impact litigation, legislative advocacy, grassroots organizational efforts, public education, media strategies, civil disobedience and narrative at their disposal, the modes of operating vary from cause to cause and lawyer to lawyer.87 Several legal theorists have proposed using one method for social change over another. Stoddard suggests that legislative lawmaking is the most effective means for creating social change.88 He advocates that it is "the avenue of change most likely to advance 'culture-shifting' as well as 'rule-shifting' - the method of lawmaking most likely to lead to absorption into the society of new ideas and relationships. '89 He does not completely discount the value of judicial lawmaking - judges announcing new legal formulations - however.9" Lawsuits may effectively highlight issues with deep cultural import, thereby forcing government to examine them.91 Such judicial lawmaking often fails to interest the public, however, because it focuses on the rules that structure society rather than on the issues that underlie those rules.92 The public will be concerned with the basic cultural issues that shape society, but not with the legal rules that result from those issues and thus lawsuits, which inherently focus on legal rules, will not gain widespread social support.93

86. See Hunter, supra note 50, at 1021; GMHC at a Glance (visited Feb. 24, 2000) (detailing GMHC's advocacy work in the courts); GMHC Directory (visited Feb. 24, 2000) (detailing GMHC's legal services). 87. See About NOW LDEF, supra note 35; About the NAACP Legal Defense Fund, supra note 35; About Lambda, supra note 63; Guardianof Liberty: American Civil Liberties Union, supra note 64. 88. See Stoddard, supra note 39, at 985. 89. Id. 90. See id. at 985-86. 91. See id. 92. See id. 93. See id. 2000] LAWYERING FOR SOCIAL CHANGE 1883

Professor Gerald Rosenberg agrees that judicial lawmaking by itself is less likely to bring about social change.94 In examining the civil rights, abortion and women's rights, environmental and criminal law reform movements, he concludes that the courts can help produce social change, but that often these judicial decisions are just a part of a long-term multifaceted social movement.95 He notes that "[a] court's contribution, then, is akin to officially recognizing the evolving state of affairs, more like the cutting of the rib- bon on a new project than its construction. ' 96 Patterns of change and sympathetic movements within the larger culture thus serve as the catalysts for successful social change legal battles.97 Hunter proposes, however, that effective culture shifting cannot be assigned to a particular legal arena. "Breakthrough moments in law occur rarely but not randomly, regardless of arena. They usually follow long periods of incremental, often nearly imperceptible, social change occurring at a glacial pace. When they do occur, they crystallize what has gone before at the same instant that they pro- pel social structures forward." 98 She agrees that majoritarian legislative victories can be more politically sound than judicial renderings of the Constitution, despite a statute's being subject to judicial review,99 but she also suggests that the most powerful activity within social change lawyering is the use of litigation to obtain enforcement and comprehensive interpretation of statutes.1 ° ° Hunter further maintains that a multitude of complex structural factors determine whether legislation or litigation serve as the dominant force at a given time, including the roles of the state and economic market, the nature of the rights being sought, and the large-scale political climate.101 Minow notes that many studies of law and social change focus solely on the courts, and more specifically, on the Supreme Court.10 2 She suggests that this emphasis is an extremely short- sighted view and that an appropriate framework for evaluating social change efforts would focus on all federal and state courts, as

94. See GERALD N. ROSENBERG, THE HOLLOw HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? (1991). 95. See id. at 338. 96. Id. 97. See id. at 337. 98. Hunter, supra note 50, at 1012. 99. See id. at 1012. 100. See id. 101. See id. at 1013. 102. Minow, Law and Social Change, supra note 9, at 173. 1884 FORDHAM URBAN LAW JOURNAL [Vol. XXVII well as state and federal legislation. 10 3 Further, she submits that "law" should also include "the norms about which individuals come to have consciousness, whether that consciousness derives from judicial decisions, statutes or more general sources of rights to object to mistreatment[,]"'1 4 as well as the alternative regimes established by "the concerted voluntary efforts by and on behalf of disenfranchised people to create services and programs denied to 5 them by the formal legal system.' 10 Lawyers clearly have a wide range of choices before them in determining how to approach a social change endeavor and what tools to implement in achieving their goals. Organizations across the political spectrum may use the same approach while ideological opposites may employ the same methodology. No matter what choices political lawyers make regarding how to accomplish this work, the end goal is always the same - the successful effecting of social change.

]I. THE LEGITIMACY OF LAWYERING FOR SOCIAL CHANGE Questions remain as to whether the use of these legal tools to effect social change is a legitimate form of legal practice. Scholars support both sides of the debate. This Part examines the various arguments for and against lawyering for social change.

A. Opponents of Lawyering for Social Change Opponents of political lawyering raise two main contentions. One argument concerns the impact of political lawyering on the lawyer-client relationship. 1°6 Other issues arise from the anti- majoritarian nature of using the courts to reach goals that could not be attained through ordinary democratic means. 10 7

1. The Effect of Political Lawyering on Lawyer-Client Relationship The primary concerns raised regarding the lawyer-client relationship focus on how political lawyers can manipulate their clients and

103. See id. at 173-74. 104. Id. at 174 (citing Frank Michelman, Law's Republic, 97 YALE L.J. 1493 (1988)). 105. Id. at 175. 106. See LUBAN, LAWYERS & JUSTICE, supra note 16, at 303. 107. See id. at 303. The critique that this work is anti-majoritarian means that groups who cannot achieve their goals through the usual political channels and seek remedies in court thwart the will of the people. See id. 20001 LAWYERING FOR SOCIAL CHANGE 1885 how the lawyer may elevate the interests of the cause over those of the individual client.10 8 Professor Richard Wasserstrom suggests that the lawyer's role in the traditional lawyer-client relationship - that of immersion in and embodiment of the client's position in the legal arena - prevents the pursuit of social change. 10 9 The very essence of the lawyer's institutional role is to submerge himself in his client's position and to represent that interest in the legal arena as forcefully as possible.... [B]eing an advocate in our legal system - where one does not or need not choose one's causes - encourages a non-critical, non-evaluative, un- committed state of mind. 110 The traditional model of the lawyer-client relationship of which Wasserstrom speaks is also known as client-centered lawyering."' This model is based on the belief that clients bear the full consequences of their own decisions and are therefore in the best position to understand both the legal and non-legal significance of their choices." 2 Consequently, a lawyer counsels her clients most effectively by helping them explore all possible results of their actions 3 so that they may make decisions that best serve their own needs." The American Bar Association ("ABA") has encouraged this type of client-focused model by preventing lawyers from creating their own cases through bans on types of advertising and barratry." 4 Although non-profit organizations engaging in litigation as a form of political expression are exempt from these rules on First

108. See id. at 317. 109. See Richard Wasserstrom, Lawyers and Revolution, in RADICAL LAWYERS: THEIR ROLE IN THE MOVEMENT AND IN THE COURTS 74, 80 (Jonathan Black ed., 1971). 110. Id. 111. See, e.g., DAVID A. BINDER, ET AL., LAWYERS AS COUNSELORS: A CLIENT CENTERED APPROACH 16-24 (1991); Stephen Ellmann, Client-Centeredness Multi- plied: Individual Autonomy and Collective Mobilization in Public Interest Lawyers' Representation of Groups, 78 VA. L. REV. 1103 (1992); Stephen Ellmann, Lawyers and Clients, 34 UCLA L. REV. 717 (1987); Nancy D. Polikoff, Am I My Client?: The Role Confusion of A Lawyer Activist, 31 HARV. C.R.-C.L. L. REV. 443 (1996); Wil- liam H. Simon, Lawyer Advice and Client Autonomy: Mrs. Jones's Case, 50 MD. L. REV. 213 (1991); Ann Southworth, Taking the Lawyer Out of ProgressiveLawyering, 46 STAN. L. REV. 213 (1993); Lucie E. White, To Learn and Teach: Lessons from Driefontein on Lawyering and Power, 1988 Wis. L. REV. 699 (1988) [hereinafter White, To Learn and Teach]. 112. See BINDER, supra note 111, at 17; Polikoff, supra note 111, at 458. 113. See BINDER, supra note 111, at 19-22; Polikoff, supra note 111, at 458. 114. See ABA Canons, supra note 13, Canons 27-28; Model Code, supra note 1, EC 2-3 to 2-5, 2-8 to 2-10, 2-15, DR 2-101 to 2-104; Model Rules, supra note 13, Rules 7.1 to 7.5. 1886 FORDHAM URBAN LAW JOURNAL [Vol. XXVII

Amendment grounds,'15 many who oppose political lawyering view 16 such recruitment of clients as improper.' When a lawyer has a vested interest in the concerns of the group she represents, as is so often the case in political lawyering, the client-centered model becomes challenging to maintain. When I feel that I, as a member of the group that my clients represent, also bear the consequences of their choices, it is difficult maintaining my role as a counselor. My feelings of connection to my clients imply that we have a common cause, and unless I am careful, may deny my clients the client-centered as- 1 7 sistance that they should receive. The handling of test cases or impact litigation is an area in which these difficulties become apparent. Some opponents of political lawyering express concern that the pursuit of such cases serves the political theories of the lawyers rather than the interests of the clients." 8 Within the context of a nonprofit organization, the needs of the individual client may conflict with the vision of the organization."19 Whereas the nonprofit organization may see the purpose of the legal program as improving the situation of the client group, this view may require tradeoffs with the service to the individual client.'20 In addition, the lawyer may have to juggle the organization's procedures with responsibilities to the court.' 2 ' These issues raise potential conflicts of interest between lawyers and their clients under the ABA's ethical codes.' 2 2 They are also

115. See In re Primus, 436 U.S. 412 (1978). See also discussion infra notes 155-157 and accompanying text. 116. See LUBAN, LAWYERS & JUSTICE, supra note 16, at 317. 117. Polikoff, supra note 111, at 458. 118. See LUBAN, LAWYERS & JUSTICE, supra note 16, at 317 (citing CHARLES WOLFRAM, MODERN LEGAL ETHICS 940 (1986)). 119. See Trubek, supra note 7, at 425. 120. See id. 121. See id. 122. See Model Code, supra note 1, EC 5-2 ("A lawyer should not accept proffered employment if his personal interests or desires will, or there is a reasonable probability that they will, affect adversely the advice given or services to be rendered the prospective client."), DR 5-101(A) ("Except with the consent of his client after full disclosure, a lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own ... personal interest."); Model Rules, supra note 13, Rule 1.7. A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities.., to a third person, or by the lawyer's own interests, unless: (1) the lawyer reasonably believes the representation will not be adversely affected; and (2) the client consents after consultation. Model Rules, supra note 13, Rule 1.7(b). 20001 LAWYERING FOR SOCIAL CHANGE 1887 antithetical to the lawyer's obligations of zealous advocacy and 123 loyalty. In discussing these issues, Professor Dean Hill Rivkin stated: [W]e question anyone's right to make.., an attempt to speak for those who have not spoken for themselves..... [Lawyers for social change] find it enormously hard not to silence and disable clients through [their] empathy and compassion, much less [their] distance and, yes, despair. There are theories of empowerment, strategies for dealing with differences, empathy training - - they help but the tensions1 2in4 the lawyer-client relationship in reform litigation... persist. He posits that the clients involved in this type of endeavor are often voiceless and that even if the lawyer implements strategies to level the power differential between the lawyer and the client, the lawyer will still inevitably dominate the client, thus stepping 25 outside the bounds of the client-centered counseling model. Other scholars suggest that beyond the inability to sustain a client-centered relationship with their clients, political lawyers might even harm the interests of their clients. Professor Nancy Polikoff believes that a lawyer's legal and activist lives must be kept totally separate, particularly when that activism involves civil disobedience.' 26 Behaving as an activist when one is supposed to be acting as an officer of the court de-legitimizes the attorney in the eyes of the court and consequently harms the client. 27 That legitimacy is needed because it grants the lawyer a level of access to the judicial system that the clients themselves do not have. 28 The separation between lawyering and activism, therefore, is essential. 29 Dean James Douglas suggests that a lawyer must logically consider every aspect of an issue, rather than just the side that she is advocating according to both the law and the ethical requirements

123. See Model Code, supra note 1, at DR 7-101(A) ("A lawyer shall not intentionally ... [f]ail to seek the lawful objectives of his client through reasonably available means"); Model Rules, supra note 13, Rule 1.3 cmt. 1 ("A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer"); Rule 1.7 cmt. 4 ("Loyalty to a client is also impaired when a lawyer cannot consider, recommend or carry out an appropriate course of action for the client because of the lawyer's other responsibilities or interests. The conflict in effect forecloses alternatives that would otherwise be available to the client."). 124. Dean Hill Rivkin, Reflections on Lawyering for Reform: Is the Highway Alive Tonight?, 64 TENN. L. REV. 1065, 1067-68 (1997). 125. See id. at 1067. 126. See generally Polikoff, supra note 111. 127. See id. at 448. 128. See id. 129. See id. at 448-49. 1888 FORDHAM URBAN LAW JOURNAL [Vol. XXVII of a lawyer to zealously represent her client. 130 As a result, a lawyer is precluded from engaging in social activism.1 3 ' He submits that because a true social activist operates from emotion-based motives, it is less likely that the lawyer will have the objectivity required to fully explore her opponent's perspective and that without 132 this ability, she cannot adequately represent her client.

2. Anti-Majoritarian Use of the Courts Another objection to lawyering for social change stems from the perception that it is a way of permitting the courts to supercede the democratic process. These concerns are based on the idea that "[i]t is wrong for groups that are unable to get what they want through ordinary democratic means (pressure-group politics, the legislative process, electing an executive who does things their way) to frus- trate the democratic will by obtaining in court what they cannot obtain in the political rough-and-tumble.' ' 33 Those supporting this view see clear divisions of labor among the branches of government. The lawyer's job is to litigate rather than to seek legislative- like change through the court system.13 4 Courts should assume a finite position in a democratic system. 35 When lawyers ask judges to legislate social policy, they are replacing the will of the people with their own. 36 In furtherance of the lawyers' defined role in the democratic process, Douglas asserts that "a lawyer's role in society is not to change the rules of the game, but to assist in maintaining the rules and to help resolve conflicts under the established rules."'1 37 Doug- las is concerned that political lawyers' focus on altering the social order rather than on the legal system can be detrimental to the client.' 38 He suggests that lawyers should work within the given

130. See Douglas, supra note 44, at 405. 131. See id. at 407. 132. See id. at 405. 133. LUBAN, LAWYERS & JUSTICE, supra note 16, at 303. 134. See Tushnet, Thurgood Marshall, supra note 31, at 1144 (citing JOHN M. JOR- DAN, MACHINE-AGE IDEOLOGY: SOCIAL ENGINEERING AND AMERICAN LIBER- ALISM, 1911-1939 (1994)). 135. See LUBAN, LAWYERS & JUSTICE, supra note 16, at 358. 136. See id. 137. Douglas, supra note 44, at 406. 138. See id. at 405-06. Social activists are not concerned with the rule of law; they are, instead, concerned with changing society and the way members of society interrelate with each other. The social activist is therefore, more likely to breach the rule if to do so might result in the accomplishment of the desired goal, a change in society. 2000] LAWYERING FOR SOCIAL CHANGE 1889 legal contexts, rather than try to change those contexts. The creation of this change is a task for activists, not lawyers. The lawyer's task is to describe and maintain the rules that result from the changes in thought prompted by the action of activists.139

B. Proponents of Lawyering for Social Change Scholars who support lawyering for social change advance two main reasons why this position is legitimate. The first relates to the nature of the law as an articulation of social morality, and the second regards the structure of the legal system and the right of all people to gain access to justice.

1. Law As An Articulation of Social Morality According to some scholars, using the law to effect social change is well within the lawyer's authority because the law reflects society's morals and standards. 40 Stoddard notes that "[t]he law is not now, and never has been, simply a set of formal rules; it is also the most obvious expression of a society's values and concerns, and it can and ought to be used to improve values and concerns."'' As a result of this vision of law as a tool for the betterment of society, groups seeking social change have always turned to the law for its promises of due process and equal treatment. 42 Some scholars view political lawyering, therefore, as a logical extension of the lawyer's personal commitment to social change. For example, Professor Gary Bellow says, "Political lawyering... simply describes a medium through which some of us with law training chose to respond to the need for change in an unjust world."' 43 He notes further: Social vision is part of the operating ethos of self-conscious law practice. The fact that most law practice is not done self-consciously is simply a function of the degree to which most law practice serves the status quo.... The kind of political lawyering [I have practiced] is distinguishable from general law work by the degree to which it was fueled by a more dissatisfied and change-oriented self-consciousness than the law practice of most

Id. 139. See id. at 407. 140. See Stoddard, supra note 39. 141. Id. at 971. 142. See Jane E. Larson, Introduction: Third Wave - Can Feminists Use the Law to Effect Social Change in the 1990s?, 87 Nw. U. L. REV. 1252, 1252 (1993). 143. Gary Bellow, Steady Work: A Practitioner'sReflections on PoliticalLawyering, 31 HARV. C.R.-C.L. L. REV. 297, 309 (1996). 1890 FORDHAM URBAN LAW JOURNAL [Vol. XXVII

of our contemporaries .... It seems enough here to say that "vision-making" work is fundamental to the activist strategies 144 political lawyering inevitably embodies. Lawyers engaged in this work thus use the law to advance their own visions of an ideal society in furtherance of the notion that the law serves as a reflection of societal values.

2. Structure of the Legal System Another reason presented for the validity of this work lies in the unique role that lawyers play in the legal system. 145 Luban notes: It is an obvious fact.., that all of our legal institutions.., are designed to be operated by lawyers and not by laypersons. Laws are written in such a way that they can be interpreted only by lawyers; judicial decisions are crafted so as to be fully intelli- gible only to the legally trained. Court regulations, court sched- ules, even courthouse architecture are designed around the 146 needs of the legal profession. Lawyers thus retain a monopoly on legal services. 147 This legal structure obligates lawyers to work for those in need, not merely because of the demand for public services, but because of the implicit right to "Equal Justice Under Law.' 1 48 The notion that all

144. Id. at 301-02. 145. See LUBAN, LAWYERS AND JUSTICE, supra note 16. 146. Id. at 244. Some would argue that the response to this problem should be the de-regulation of the legal profession. See, e.g., LUBAN, LAWYERS & JUSTICE, supra note 16, at 269-77; see also Russell G. Pearce, The Professionalism Paradigm Shift: Why Discarding ProfessionalIdeology Will Improve the Conduct and Reputation of the Bar, 70 N.Y.U. L. REV. 1229 (1995) (noting the transformation of law practice from a profession to a business, and suggesting reforms such as permitting nonlawyers to practice and substituting market and government regulation for self-regulation). This Note does not address the merits of this claim, but the de-regulation of the legal system is unlikely to happen any time soon. Until it does, this Note proposes that political lawyering is the best option to ensure that every person has access to the court system. 147. See LUBAN, LAWYERS & JUSTICE, supra note 16, at 286. Lawyers... retail a commodity manufactured by the state: law. They have, moreover, been granted a monopoly on it, in ...several ways... :through unauthorized practice regulations, through the fashioning of laws and regulations, through the erection of a professionalized system designed in large part around the needs of the law retailers. The adversary system itself is predicated on the monopoly of lawyers. Id. 148. See id. at 248-57. Luban defines this right as implicit, meaning rights granted "by the rules of the game," rather than moral, meaning those rights without which a person is "a mere thing and not ... a moral agent." Id. at 248-49. "Equal Justice Under Law" is carved above the entrance to the United States Supreme Court building. See Nadine Strossen, Pro Bono Legal Work: For the Good of Not Only the Pub- 20001 LAWYERING FOR SOCIAL CHANGE 1891 people should be afforded equal justice is one of the fundamental legitimizing principles of the American legal system. 14 9 This principle implies equal political rights, such as consent to governance, as well as equality of legal rights, meaning that every person has a right to legal redress of injuries through the court system.'50 To gain this access, however, requires the help of lawyers. In order to sustain the legitimacy of the legal system, lawyers must guarantee that legal services are available to all that need them. 51 Given these justifications for providing legal services to those otherwise lacking access to them, Luban argues further that representing these clients in a politicized manner in an attempt to reform laws, to further socio-political goals or to alter the social order is also justified.1 52 He argues that "on the basis of an adequate theory of democracy, impact work, including class-action suits, lobbying, and organizing by public interest lawyers, is a boon to democratic politics. Impact work deserves not just toleration but support by a community dedicated to a democratic way of life."1'5 3

m. THE WORK OF LAWYERING FOR SOCIAL CHANGE Having explored the scholarship regarding political lawyering, this Part argues that lawyering for social change is entirely legitimate. Further, this Part proposes ideological and methodological models for engaging in such work.

A. Lawyering for Social Change is Legitimate Despite various objections to the endeavor of lawyering for social change, this Note advocates that it is in fact a legitimate enterprise. The notions of the law as a reflection of social morality and the role of the lawyer in the legal profession support the lawyer's engaging in this type of work. 154 In addition, the concerns posited by opponents of political lawyering can be assuaged by taking measures to level power differentials between lawyers and clients and by examining the exceptions to the usual functioning of the democratic system. lic, But Also the Lawyer and the Legal Profession, 91 MICH. L. REv. 2122, 2139 (1993). 149. See LUBAN, LAWYERS & JUSTICE, supra note 16, at 252-56. 150. See id. at 251-55. 151. See id. 152. Id. at 238. See generally id. at 293-391. 153. Id. at 304. 154. See supra Part II.B. 1892 FORDHAM URBAN LAW JOURNAL [Vol. XXVII

1. Responses to Concerns About Client Manipulation Many arguments raised by opponents of social change lawyering based on the effect of this type of lawyering on the lawyer-client relationship can be overcome by an examination of applicable legal standards. As a threshold matter, recruiting clients for social justice activities constitutes wholly legitimate action.'55 The U.S. Su- preme Court has recognized that solicitation in furtherance of social justice causes deserves First Amendment protection because it is a form of political expression. 156 The usual concerns regarding solicitation and advertising focus on attorney pecuniary interest that are not present when these activities are carried out by organizations whose primary goal is to raise and explore social justice issues. 57 Concerns over exploitation of these solicited clients can be addressed by full disclosure of the essential implications, risks and uncertainties involved, as well as the political goals of both the lawyer and the client. 58 The resulting work must be the product of mutual understanding, information sharing and effort on the parts of both lawyer and client.' 59 As Luban points out, there are several reasons why a plaintiff may have to be recruited, including ig-

155. See In re Primus, 436 U.S. 412 (1978) (holding that solicitation of prospective clients by legal organizations whose primary purpose is to meet political aims constitutes expressive and associational conduct that is entitled to First Amendment protection, thus exempting a lawyer engaging in these activities from disciplinary action). 156. Id. at 428 (noting that for the ACLU, "'litigation is not a technique of resolving private differences'; it is 'a form of political expression' and 'political association."' (quoting NAACP v. Button, 371 U.S. 415, 429, 431 (1963))); see also NAACP v. Button, 371 U.S. 415 (1963) (holding that the activities of the NAACP constitute modes of expression and association which are protected by the First and Fourteenth Amendments, thus exempting them from the Virginia prohibitions on solicitation). In Button, the Court held that the solicitation of potential clients in order to further the civil rights goals of the NAACP was within the right "to engage in association for the advancement of beliefs and ideas." Button, 371 U.S. at 430 (quoting NAACP v. Ala- bama, 357 U.S. 449, 460 (1958)). 157. See Primus, 436 U.S. at 429-431, 434-37. The Court held that the other traditional concerns regarding solicitation and barratry, including undue commercializa- tion of the legal profession, are absent when a non-profit organization offers free legal services. See id. at 437. The Court noted, further, that as the ethical codes impose an obligation to serve the public interest, the ethical rules have traditionally exempted solicitation via offers of free representation to those with limited ability to obtain legal service on their own from the general bans on solicitation. See id. at 437 n.31. See also Button, 371 U.S. at 440-41 (noting that "regulations which reflect hostility to stirring up litigation have been aimed chiefly at those who urge recourse to the courts for private gain, serving no public interest" and that "[o]bjection to the intervention of a lay intermediary ... also derives from the element of pecuniary gain"). 158. See LUBAN, LAWYERS & JUSTICE, supra note 16, at 318. 159. See id. 20001 LAWYERING FOR SOCIAL CHANGE 1893 norance on the part of potential plaintiffs that they are victims of illegal actions, the high cost of hiring lawyers for law reform activi- 16° ties and the difficulty of litigating against large institutions. Whether the lawyer recruits the client or the client seeks out the lawyer is inconsequential so long as the client is fully informed and 161 willing to undertake the litigation. The response to concerns about client manipulation lies in taking measures to level the potential power differential between the lawyer and the client, thereby helping to avoid the feared manipulation, and engaging in collaborative moral discourse. As mentioned previously, the use of a client-centered model of lawyering does not always work effectively in social justice settings. 162 It may not be necessary to eliminate all aspects of this model, however. It is crucial to provide the client with as much information as possible to aid in decision-making, but, as Bellow notes: [T]he practice of law always involves exercising power. Exercis- ing power always involves systemic consequences, even if the systemic impact is a product of what appear to be unrelated cases pursued individually over time. Lawyers influence and shape the practices and institutions in which they work, if only to reinforce and legitimate them. Clients, similarly, bring to their legal advisers and representatives claims and concerns that arise from and are examples of underlying institutional arrange- 163 ments and culturally created controls. This raises the question of how to avoid exploiting this power differential. Bellow addresses the potential for a lawyer's abuse of power, particularly where the clients being served are in some way vulnerable, and recognizes that choice is never equally allocated in any client-lawyer venture. 64 These power concerns can be addressed by employing some method of collaborative lawyering,' 65 entering

160. See id. 161. See id. 162. See supra text accompanying notes 109-125. 163. Bellow, supra note 143, at 301. 164. See id. at 302. 165. See, e.g., Anthony V. Alfieri, PracticingCommunity, 107 HARV. L. REV. 1747 (1994) [hereinafter Alfieri, Community]; Anthony V. Alfieri, Reconstructive Poverty Law Practice: Learning Lessons of Client Narrative, 100 YALE L.J. 2107 (1991); Anthony V. Alfieri, The Antinomies of Poverty Law and a Theory of Dialogic Em- powerment, 16 N.Y.U. REV. L. & Soc. CHANGE 659 (1987-88) [hereinafter Alfieri, Antinomies]; Anthony V. Alfieri, Speaking Out of Turn: The Story of Josephine V., 4 GEO. J. LEGAL Emics 619 (1991); GERALD LOPEZ, REBELLIOUS LAWYERING: ONE CHICANO'S VISION OF PROGRESSIVE LAW PRACrICE (1992); White, To Learn & 1894 FORDHAM URBAN LAW JOURNAL [Vol. XXVII into alliances with clients based on mutual commitments and influence, with the respect and mutuality that such relationships entail counterbalancing some of the skewed power issues. 166 Collabora- tive lawyering aims to obscure the differences between lawyers and lay people and between legal and non-legal tasks, as well as to po- liticize the clients' efforts and involve the lawyer heavily in the client's work. 67 Lawyers and clients can create these collaborations through diverse methods. Some commentators suggest highly political efforts, focusing on "individual and collective client acts of self- determination in order to broaden social and economic forms of democracy. "168 These efforts would center on organizing, mobilizing and education. 169 Others focus on examining and critiquing the system in developing strategies and approaches in order to stimu- late change on a consciousness level. 170 This notion is referred to as "lawyering in the third dimension" and emphasizes raising the client's consciousness in order to obtain a clearer picture of the problems needing solving and appropriate solutions.' 7 ' Finally, others suggest teaching self-help and lay lawyering to empower clients to help themselves in traditionally legal contexts. 72 As one

Teach, supra note 111; White, Collaborative Lawyering, supra note 72; Lucie E. White, Mobilization on the Margins of the Lawsuit: Making Space for Clients to Speak, 16 N.Y.U. REV. L. & Soc. CHANGE 535 (1987-88); Lucie E. White, Subordination, Rhetorical Survival Skills, and Sunday Shoes: Notes on the Hearing of Mrs. G., 38 BuFF. L. REV. 1 (1990). 166. See Bellow, supra note 143, at 302-03. 167. See Richard D. Marsico, Working for Social Change and Preserving Client Au- tonomy: Is There a Role for "Facilitative" Lawyering?, 1 CLINICAL L. REV. 639, 654 (1995). 168. Alfieri, Community, supra note 165, at 1762. 169. See Alfieri, Antinomies, supra note 165, at 665, 694-95. 170. See White, CollaborativeLawyering, supra note 72, at 157-58; White, To Learn & Teach, supra note 111, at 761-62. 171. See White, To Learn & Teach, supra note 111, at 761. This is a process in which small groups reflect together upon the immediate conditions of their lives. The groups first search their shared reality for feelings about that reality that have previously gone unnamed. They then attempt to re-evaluate these common understandings as problems to be solved. They collectively design actions to respond to these problems and, insofar as possible, to carry them out. They then continue to reflect upon the changed reality, thereby deep- ening their analysis of domination and their concrete understanding of their own power. Id. This methodology is intended to help subordinated communities emancipate their consciousness from internalized oppression, helping bring individual techniques of enduring and confronting their common domination to the surface. See id. 172. See LoPEZ, supra note 165, at 70. 2000] LAWYERING FOR SOCIAL CHANGE 1895 author posits, "[e]mpowered clients can begin to speak in their own voice - and to solve their own problems - without relying exclusively on the advocacy of lawyers."173 Alliances formed in an effort to bring about social change create more personal bonds and thus view the lawyer and client as partners rather than as hero and vic- tim. 174 Employing some form of collaborative lawyering in a political lawyering context serves to both avoid concerns of lawyer domination and to build a stronger grassroots community.

2. Responses to Emotional Concerns The claim that emotion clouds the political lawyer's ability to be a zealous advocate 175 sells lawyer-activists short. Partisanship on the part of a lawyer does not inherently eradicate the lawyer's ability to examine both sides of a legal issue. The moral activist model of lawyering not only permits personal connection to the lawyer's work, but requires it.176 In addition, it is not possible for any person to completely separate emotion and rationality. 177 Emotional detachment is not a prerequisite for moral lawyering. 178 Requiring this measure of separation removes the moral impetus for pursuing the work. Further, having an emotional commitment to the cause for which the lawyer is working can benefit the client. Being thus motivated, an even more zealous advocate on his or the lawyer is likely to be 179 her client's behalf. Part of a lawyer's function is to be partisan. This partisanship does not automatically de-legitimize the lawyer, as Polikoff claims.1 80 Working for a cause to which the lawyer is morally dedicated is wholly legitimate.

173. Angelo N. Ancheta, Community Lawyering, 81 CAL. L. REV. 1363, 1374 (1993) (reviewing Lopez, supra note 165). 174. See Bellow, supra note 143, at 303. 175. See supra text accompanying notes 130-132. 176. See supra text accompanying notes 27-38. 177. See MARY FIELD BELENKY ET AL., WOMEN'S WAYS OF KNOWING: THE DE- VELOPMENT OF SELF, VOICE, AND MIND 134 (1986) (examining the idea of construc- tive knowledge as the combination of rationality and emotion, as well as the integration of objective and subjective knowledge); see also CAROL GILLIGAN, IN A DIFFERENT VOICE: PSYCHOLOGICAL THEORY AND WOMEN'S DEVELOPMENT 69 (1989) (recognizing that moral judgments can be tied to einotion and reasoning). 178. See Sisak, supra note 16, at 2764-65 (citing Carol Gilligan, Moral Orientation and Moral Development, in WOMEN & MORAL THEORY 19, 30-31 (Eva Feder Kittay & Diana T. Myers eds., 1987)). 179. See AUERBACH, supra note 15, at 270 (referring to the position of Edgar and Jean Cahn). 180. See supra text accompanying notes 126-129. 1896 FORDHAM URBAN LAW JOURNAL [Vol. XXVII

3. Responses to Democratic Objections In response to the democratic objections to political lawyering, the generally recognized exception to upholding the will of the majority is when that will infringes upon individual rights, particularly those of a minority group.18 The policies made by the courts are therefore not overt law making, but protection of minority viewpoints. 8 z In NAACP v. Button, 83 Justice Brennan's majority opinion noted that "collective activity undertaken to obtain meaningful access to the courts [is] a fundamental right under the First Amendment to the U.S. Constitution."'' 84 The Court held: In the context of NAACP objectives, litigation is not a technique of resolving private differences; it is a means for achieving the lawful objectives of equality of treatment by all government, federal, state and local, for the members of the Negro community in this country. It is thus a form of political expression. Groups which find themselves unable to achieve their objectives through the ballot frequently turn to the courts.... And under the conditions of modem government, litigation may well be the sole practicable avenue open to a minority to petition for redress of grievances.' 85 Further, this notion defeats the assertion that a lawyer's job is merely to apply the rules and resolve conflicts under them. 86 Jus- tice Brennan acknowledged that in order to change the rules of a system, one may have to get inside that system, and this ability to gain entry is exactly the kind of access lawyers have to the legal system.'87 Additionally, the preamble to the ABA Model Rules of Professional Conduct states that:

181. See LUBAN, LAWYERS & JUSTICE, supra note 16, at 358. The American system of government is built on two basic, counterbalancing principles: 1) that the majority of the people, through democratically elected representatives, governs the country and 2) that the power of even a democratic majority must be limited to insure individual rights. In every era of American history, the government has tried to expand its authority at the expense of individual rights. The American Civil Liberties Union exists to make sure that doesn't happen, and to fight back when it does. Guardian of Liberty: American Civil Liberties Union, supra note 64. 182. See LUBAN, LAWYERS & JUSTICE, supra note 16, at 358; see also Julius L. Chambers, Thurgood Marshall's Legacy, 44 STAN. L. REV. 1249, 1249 (1992) (noting that Marshall believed that the courts were the "protectors of the powerless" (citing Payne v. Tennessee, 501 U.S. 808, 856 (1991) (Marshall, J. dissenting))). 183. 371 U.S. 415 (1963). 184. Chambers, supra note 182, at 1250. 185. Button, 371 U.S. at 429-30. 186. See supra text accompanying notes 137-139. 187. See Button, 371 U.S. at 429-30. 2000] LAWYERING FOR SOCIAL CHANGE 1897

[a]s a public citizen a lawyer should seek improvement of the law, the administration of justice and the quality of service rendered by the legal profession.... A lawyer should be mindful of ... should help deficiencies in the administration of justice and188 the bar regulate itself in the public interest. It contends that lawyers play a crucial role in preserving society and that the realization of this role demands awareness by lawyers of their position in the legal system.'8 9 Finally, the very monopoly retained by lawyers on the provision of legal services makes it all the more crucial that lawyers continue to work for social justice, championing both under-represented people and ideas. Lawyers are the only people who can ensure that the courts act to protect those whose rights are infringed. It thus becomes clear that lawyering for social change is a legitimate expression of the democratic protection of the marketplace of ideas and the rights of those who face unfair treatment because they belong to a minority group, express unpopular opinion or are otherwise excluded from the political process.

B. Contextual Lawyering as a Methodology for Social Change 90 - The Social Engineering/Moral Activist Model as Prototype' The Social Engineering/Moral Activist Model ("SEMA Model") most accurately addresses the issues involved with lawyering for social change. This model has its roots in moral activism and incorporates a broad range of theoretical and methodological approaches to the work of lawyering for social change. Because this model is based in moral activism, it provides both a personal moti-

188. Model Rules, supra note 13, Preamble, § 5. 189. Id. Preamble, § 12. 190. This Note combines the notions of social engineering and moral activism to portray this model because neither image alone encapsulates the motivating source and methodology of these movements. Moral activism, as discussed by eminent philosophers, focuses on the moral justification of the lawyer's role. See Tremblay, supra note 16, at 11. It requires the lawyer to accept moral responsibility for her actions rather than hiding within the traditional conception of the lawyer's role and to seek justice as a matter of vindicating legal ideals. See id. at 22-24 (citing LUBAN, LAWYERS AND JUSTICE, supra note 16, at 125; William H. Simon, Ethical Discretion in Lawyering, 101 HARV. L. REV. 1083, 1083-84, 1090 (1988)). The moral activist notion's focus on accountability is not mutually exclusive from the governing class notion, however. A lawyer can accept moral accountability even when working from an idea that serving the people stems from special duties arising out of privilege. That is why the model this Note advocates combines the moral drive of moral activism with the ideals and methodology of social engineering. A lawyer employing this model works from a moral base, accepts moral accountability for her actions, and uses the legal machinery at her disposal to work toward that morally derived goal. 1898 FORDHAM URBAN LAW JOURNAL [Vol. XXVII vation for the lawyer and an ethical imperative to be true to the mission of the legal endeavor. Because the SEMA Model incorporates elements of multiple approaches, it enables the lawyer to be responsive to both the needs of the client and the legal undertaking.

1. Failure of the Governing Class Model The governing class model1 91 promotes a hierarchical, unrealistic ideal that going to law school and practicing the law grants lawyers a measure of honed insight above and beyond that of the average citizen. Further, it posits that this advanced ability in decision- making elevates lawyers in society and therefore creates a duty for lawyers to serve the general public. These notions do not truly reflect today's cadre of lawyers. Law school certainly equips lawyers with some of the keys to open the doors of the legal system, but this knowledge is entirely unrelated to a higher ability to make judgments. It simply teaches students what legal mechanisms must be used to fight certain legal battles. In addition, most lawyers do not necessarily associate a duty to perform pro bono work with being a member of the privileged legal profession. 192 The participation of lawyers in pro bono services to the poor is extremely low. According to surveys conducted at the beginning of the 1990s, approximately eighty percent of the bar engages in no pro bono activity.193 Further, none of the definitions of lawyering for social change discussed in this Note 194 fit within the governing class ideal. They all involve moral determinations as a starting point, such as what the best life is for humans, whether there is value in fighting the status quo and in representing the voiceless, and whether value exists in equality. These definitions involve moral motives rather than dutiful ones. These notions do not require special judgment, but they encourage using legal tools to work for moral causes.

191. See supra notes 15, 18-26 and accompanying text (discussing the governing class conception of lawyering). 192. Some lawyers do see a duty arising out of the monopoly lawyers have on the legal system. See supra text accompanying notes 145-151. 193. See Tigran W. Eldred & Thomas Schoenherr, The Lawyer's Duty of Public Service: More Than Charity?, 96 W. VA. L. REV. 367, 389-90 (1993) (citing A.B.A. CONSORTIUM ON LEGAL SERVICES AND THE PUBLIC, 1990 DIRECTORY OF PRIVATE BAR INVOLVEMENT PROGRAMS 146-47 (May 1990); COMMITrEE TO IMPROVE THE AVAILABILITY OF LEGAL SERVICES, FINAL REPORT TO THE CHIEF JUDGE OF THE STATE OF NEW YORK (April 1990)); Steven Wechsler, Attorneys' Attitudes Toward Mandatory Pro Bono, 41 SYRACUSE L. REV. 909 (1990)). 194. See supra text accompanying notes 3-11. 20001 LAWYERING FOR SOCIAL CHANGE 1899 2. Law as a Reflection of Social Values The definitions of political lawyering all point to the importance of working for a substantively better society. 195 They establish the meaning of lawyering for social change firmly within the SEMA Model, as the lawyer works to alter the social order to reflect the values to which she is morally committed. These definitions suggest that the use of legal tools to work for the moral good is the ultimate goal of lawyering. As a result, the SEMA Model serves to legitimize the practice of working for social change.

3. Additional Client Safeguards Within the SEMA Model The SEMA Model provides an additional way to address concerns regarding lawyer domination of clients. The issue of elevat- ing the lawyer's political goals over the client's individual goals loses relevance when the lawyer and client engage in a relationship of full disclosure and honesty. 96 Because the lawyer has a personal investment in the success of the pursuit, the lawyer has an incentive to try to establish the parameters of the representation in advance in order to prevent such a scenario.197 Once potential con-

195. See Esquivel, supra note 16, at 329-30 (arguing that "procedure-based conceptions of justice fail to provide an adequate framework for public interest law because the pursuit of a substantively better society is an essential component of any movement for legal reform or enforcement of pre-existing rights"). 196. See, e.g., Model Rules, supra note 13, Rule 1.7(b). A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless: (1) the lawyer reasonably believes the representation will not be adversely affected; and (2) the client consults after consultation. Id. (emphasis added); Model Rules, supra note 13, Rule 1.7 cmt. 4 ("Consideration should be given to whether the client wishes to accommodate the other interest involved."); Rule 1.8(f) (noting that a lawyer may be paid by a source other than the client so long as the client knows about this arrangement and consents and so long as the arrangement does not compromise the lawyer's independent professional judgment); Model Code, supra note 1, DR 5-107 (allowing the lawyer to be paid by a third party so long as the client consents after full disclosure); ABA Canons, supra note 13, Canon 6 ("It is unprofessional to represent conflicting interests, except by express consent of all concerned given after a full disclosure of the facts.") (emphasis added). 197. See, e.g., Model Rules,.supra note 13, Rule 1.2(c) ("A lawyer may limit the objectives of the representation if the client consents after consultation."). The objectives or scope of services provided by a lawyer may be limited by agreement with the client or by the terms under which the lawyer's services are made available to the client .... The terms upon which representation is undertaken may exclude specific objectives or means. Such limitations may exclude objectives or means that the lawyer regards as repugnant or imprudent. Id. cmt. 4. 1900 FORDHAM URBAN LAW JOURNAL [Vol. XXVII flicts are out in the open, both the client and the lawyer have the right to accept them and continue the representation, or to renego- tiate or terminate the representation. 198 Thus, the SEMA Model encourages moral discourse, through which the issue of power can be diffused. 4. Methodology Under the SEMA Model The causes and ideals embraced by lawyers for social change are extremely diverse; so too are the details, political issues, community concerns and underlying themes associated with them. None of these aspects is extricable from another. As a result, the best strategy for achieving social change can change from moment to moment. The SEMA Model suggests that a lawyer engaged in a political struggle must keep all available options at her disposal and consider a multitude of different ideologies. This strategy is the best way to ensure progress. Achieving successful social change requires long-term, dedicated, incremental work, utilizing every available tool to address the demands of the situation. The conditions of the political climate are not easy to read, and therefore such determinations must be made carefully. The political lawyer must monitor social and political sentiment closely to determine which method will be most effective at a given point in time. As Hunter notes, "[s]tructural factors determine whether legislation or litigation dominates an equality movement at any given moment: the roles of the state and the market as allies or foes; the nature of the rights being sought; and the broader political climate in each arena."'199 Further, she indicates that Other factors complicate any brightline distinction between legislative and litigation arenas. Discursive communities arise in the interstices of courts, legislatures, and enforcement agencies. The lawyers and others who work in, and against, and back and forth between these institutions create and disseminate understandings of the law that then circulate in all those institutions and in the broader society. 20 0 In addition, grassroots work within communities, negotiations with administrative agencies, public education and use of the media, and coalition-building are all additional effective means of addressing social needs. To limit the work of a political lawyer to a particular

198. See supra notes 28-29 and accompanying text. 199. Hunter, supra note 50, at 1013. 200. Id. at 1014. 2000] LAWYERING FOR SOCIAL CHANGE 1901 genre would effectively tie her hands. The SEMA Model encourages the lawyer to use all of the tools at her disposal to reach the end goal.

CONCLUSION The work of a lawyer for social justice is some of the noblest work that can be done. It provides underrepresented people and ideas with a voice in the legal arena. Political lawyering works to ensure that our legal system protects the rights of all. Even the ethics codes recognize the importance of doing this work. Rules of law are deficient if they are not just, understandable, and responsive to the needs of society. If a lawyer believes that the existence or absence of a rule of law, substantive or procedural, causes or contributes to an unjust result, he should endeavor by lawful means to obtain appropriate changes in the law. He should encourage the simplification of laws and the re- peal or amendment of laws that are outmoded.2 °1 Throughout their endeavors, political lawyers should be morally engaged and accountable. Morality-based social engineering results in vibrant, creative enterprises, as lawyers work to further the goals they have deemed morally worthy. Whether through litigation, public education seminars, rallies, lobbying or writing for scholarly journals, the work of a lawyer for social justice is never done. But it is always crucial.

201. See Model Code, supra note 1, EC 8-2. 4AS Faculty Biographies

Samuel B. Cohen is a partner at Stecklow Cohen & Thompson, a boutique litigation firm with a focus in civil rights practice. He is also currently co-chair of NYCLA’s Civil Rights and Liberties Committee. Following police policy studies at Brooklyn Law School, he joined the Law Offices of Wylie M. Stecklow as an associate, and became a partner in early 2012. Samuel received citations for extraordinary citizenship from the New York State Assembly and New York City Council in 2011, as well as a certificate of special Congressional recognition for outstanding and invaluable service to the community.

Meghan DuPuis Maurus is an attorney at Maurus & Heinegg, a founding member of the New York LawCollective. After law school Meghan worked at the New Jersey Office of the Public Defender in Essex County, and then at the Palestinian Centre for Human Rights in Ramallah and Gaza City. After returning to New York in fall of 2011, Meghan worked as a Mass Defense Coordinator for the New York City Chapter of the National Lawyers Guild, defending hundreds of protesters and coordinating the Chapter’s mass defense work. Meghan is a member of the National Association of Criminal Defense Lawyers and the New York City Bar Association. Meghan has been honored by the National Lawyers Guild for their work as a defender of those arrested in the course of peaceful assembly and protest, and also received the Samuel Belkin Award in 2008.

Alan Levine , a civil rights and constitutional lawyer, began his legal career on Wall Street, from which he took a leave of absence during the Freedom Summer of 1964 to represent civil rights activists in Alabama and Mississippi. That fall he resigned from his law firm to continue doing civil rights work in the south, then returned to NYC where he worked as a New York Civil Liberties Union staff lawyer for the next 13 years. During that time, he directed NYCLU's students' rights project, co-authored the book, The Rights of Students, and litigated cases, including in the US Supreme Court, involving a broad range of civil rights and civil liberties issues. He was also an active participant in the Ocean Hill-Brownsville struggle for community control of the schools. He has taught constitutional litigation at NYC law schools and for five years directed Hofstra Law School's Constitutional Law Clinic. Levine also contributes to Beyond the Pale radio show on WBAI.

David B. Rankin has been actively involved in numerous first amendment cases and in the defense of protesters and bystanders arrested at or around demonstrations. During the Republican National Convention in 2004, he helped lead the National Lawyers Guild’s legal response to unconstitutional police practices by organizing nearly 1,000 lawyers and legal workers. Currently, Mr. Rankin is litigating numerous federal civil rights cases against the New York City Police Department and defending those arrested and accused of criminal acts. Mr. Rankin received a B.A. from Reed College and a J.D. from New York Law School. He was an assistant to the President of the ACLU. He is a member of the New York City Chapter of the National Lawyers Guild.

Paula Z. Segal is an attorney admitted to practice in New York State who has lived in Brooklyn for ten years and focused her work on building capacity and providing technical assistance for local community- based organizing and decentralized pedagogic practice. She writes about the law and geography as structures that shape life in the city. Paula is a graduate of City University of New York Law School at Queens College, where she was a Haywood Burns Fellow in Human and Civil Rights and worked in the Economic Justice Project at Main Street Legal Services. She is a founding member of the NYC National Lawyers Guild Street Law Team. Before joining the legal profession, Paula taught English to Speakers of Other Languages, developed curricula and ran an all-volunteer adult English school on the Lower East Side. She was also a member of the Empty Vessel Project.

Norman Siegel is a partner in the Law Offices of Siegel, Teitelbaum & Evans LLP. He is a graduate of Brooklyn College (1965) and New York University's School of Law (1968). In 1973-76, as the New York Civil Liberties Union (NYCLU) Field Director, he spearheaded the historic New York campaigns for both the impeachment of President Richard M. Nixon and passage of the New York State Equal Rights Amendment. In 1985, the New York Civil Liberties Union named Norman Siegel Executive Director. For the next 15 years, Norman was on the frontline in some of New York City's most critical civil rights and civil liberties struggles; the creation of an independent Civilian Complaint Review Board; the successful defense of the Brooklyn Museum's right to exhibit controversial art; the fight for citizens' access to the steps of City Hall; the battle against involuntary hospitalization of people with mental illness; the struggle for improved community-police relations and greater accountability on the part of the NYPD. In private practice since 2002, Norman's work in civil rights and civil liberties law continues.

Michael L. Spiegel is an attorney admitted to practice in the state courts of New York and California, the United States District Courts for the Southern and Eastern Districts of New York, and the Northern and Eastern Districts of California, the United States Courts of Appeals for the Second and Ninth Circuits, and the United States Supreme Court. He attended Harvard College and City University of New York, and received his Juris Doctor degree from New York University School of Law. He was a Root Tilden Scholar at New York University School of Law, and he clerked for the Honorable Whitman Knapp during law school. Mr. Spiegel was CJA-appointed to represent two death row clients in federal habeas corpus proceedings in the Northern and Eastern Districts of California: Danielson v. Calderon in 1995, and Crittenden v. Ayers in 1996. In 1995, he returned to New York City and opened a solo practice focusing on police misconduct, first amendment, and death penalty constitutional litigation. Since 2005, he has been counsel to over 250 plaintiffs in the pending Consolidated RNC Litigation arising from mass arrests at the 2004 Republican National Convention. Mr. Spiegel was a faculty member at the American Association for Justice (formerly the American Trial Lawyers Association) Annual Convention Education Program, and has been a member of faculty for the annual Intensive Trial Advocacy Program at Cardozo Law School since 1993, and the same program at the University of San Francisco School of Law, among other teaching engagements.

Wylie M. Stecklow is the managing partner of Stecklow Cohen & Thompson, a boutique litigation firm with a focus in civil rights litigation. After graduating from Fordham Law School, Wylie worked with large corporate law firms including Curtis, Mallet-Prevost, Colt & Mosle and Davis Markel & Edwards. Wylie left corporate firm practice and spent two years learning about small firm practice while working for the legendary Bronx criminal attorney, Murray Richman. Wylie then started his own law firm in 1995 and has been helping people resolve their legal problems ever since.