lederman v. nyc dept. of parks_petition for writ

8/13/2019 Lederman v. NYC Dept. of Parks_Petition for Writ

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No. 13-_________________________________________In the Supreme Court of the United States

=====***=====ROBERT LEDERMAN and JACK NESBITT,Petitioners,-v.-NEW YORK CITY DEPARTMENT OF PARKSAND RECREATION, a municipal agency, ADRIANBENEPE, Parks Commissioner in his individualand official capacity, CITY OF NEW YORK, amunicipality, and MICHAEL BLOOMBERG,Honorable Mayor in his individual and officialcapacity, Respondents._______________________________________

On Petition for a Writ of Certiorari to the United States Court ofAppeals for the Second Circuit

PETITION FOR A WRIT OF CERTIORARIJulie M. Milner*Svetlana Minevich

MILNER LAW OFFICE, PLLC8302A Broadway, Third Floor SuiteElmhurst, NY 11373718) [email protected] for Petitioners

Counsel of Record, Admission Pending_______________________________________


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QUESTIONS PRESENTEDThe Parks Department of the City of New

York in 2010 revised the park rules in such a

manner as to foreclose almost the entire interiorand much of the exterior public parkland to artistswishing to display and sell their art. Now only ahandful of artists who arrive at pre-dawn hours tocompete for a few medallion spaces located inundesirable areas mostly on the perimeter of theparks on the Citys sidewalks may legally expressthemselves by showing or selling art through use ofan easel, hand cart or display table.

Petitioners were denied meaningful

discovery when the District Court issued aprotective order shielding high level governmentofficials with direct knowledge from being deposed.The new rule articulated by the Second Circuiteffectively bars future litigants from deposing thoseofficials, even where they were directly involved inthe violations.

Four questions are presented:

1. Whether the Second Circuit applied an

abuse of discretion standard of reviewnotwithstanding articulating the correct de novostandard when the summary judgment dismissalwas upheld despite the existence of facts incontroversy.

2. Whether the Second Circuit erred indeciding the Revised Park Rules are content


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neutral when on their face they target so-calledExpressive Matter Vendors who sell and asapplied they only target visual artists who displayor sell.

3. Even if this Court finds that the RevisedPark Rules are content neutral, whether they arereasonable time, place and manner regulationswhen they foreclose almost the entire interior ofthe Citys parkland and severely restrict the use ofCitys sidewalks adjacent to parks for artistswishing to display or vend their art.

4. Whether the new exceptionalcircumstances standard announced for deposing

high level officials offends Due Process where theofficial is a named defendant and is accused of civilrights violations, or a third party material witnesswith direct knowledge.


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PARTIES TO THE PROCEEDINGAll petitioners and respondents are listed in

the caption.

CORPORATE DISCLOSURE STATEMENTThe City of New York is a municipality, and

the New York City Department of Parks andRecreation is a municipal agency.


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TABLE OF CONTENTSPage

QUESTIONS PRESENTED..i

PARTIES TO THE PROCEEDING .... iii

CORPORATE DISCLOSURESTATEMENT .. iii

TABLE OF CONTENTS .iv

TABLE OF AUTHORITIES .. vi

TABLE OF APPENDICES ...xiv

OPINIONS BELOW . 1

JURISDICTION 1

CONSTITUTIONAL AND STATUTORYPROVISIONS INVOLVED.. 1

STATEMENT OF THE CASE ... 6

REASONS FOR GRANTING THE PETITION.... 14

I. PRESSING AND PERSISTENTCONSTITUTIONAL QUESTIONS MUSTBE RESOLVED CONCERNING AMUNICIPALITYS RESTRICTIONS ONEXPRESSIVE ACTIVITY ON PUBLICLAND... 15


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II. INCONSISTENCIES AMONG THECIRCUITS MUST BE RESOLVEDREGARDING DEPOSITIONS OF HIGH

LEVEL GOVERNMENT OFFICIALS.. 17

CONCLUSION 22


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TABLE OF AUTHORITIESPageCases

Alberto v. Toyota Motor. Corp.,289 Mich. App. 328, 796 N.W.2d 490(2010) . 18

Amherst Leasing Corp. v. Emhart Corp., 65 F.R.D.121 (D. Conn. 1974) 13

Atkinson v. Goord,01 Civ. 0761 (LAK) (HBP), 03 Civ. 7759(LAK) (HBP), 2009 WL 890682 (S.D.N.Y.

Apr. 2, 2009) .... 12

Baine v. General Motors Corp.,141 F.R.D. 332 (M.D.Ala.1991) ... 20

Bery v. City of New York,97 F.3d 689 (2d Cir. 1996) . 15, 16

Bogan v. City of Boston,489 F.3d 417 (1st Cir. 2007) . 17

Broadcasting Co. v. U.S. Info. Agency,599 F.Supp. 765 (D. D.C. 1984) ... 21

Crest Infiniti, II, LP v. Swinton,2007 OK 77, 174 P.3d 996(OK Oct. 9, 2007) 20


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vii

Cifra v. General Electric Co.,252 F.3d 205 (2d Cir. 2001) 8

Citigroup, Inc. v. Holtsberg,

915 So.2d 1265 (Fla. 1st DCA 2005) . 20

Community Federal Sav. & Loan Assn v. FHLBB,96 F.R.D. 619 (D.D.C. 1983) 21

Crown Cent. Petroleum Corp. v. Garcia,904 S.W.2d 125 (Tex. 1995) .. 18

EchoStar Satellite, LLC v. Splash Media PartnersLLC, 2009 WL 1328226 (D.Colo. May 11,2009) .. 20

EEOC v. Bloomberg LP,No. 07-cv-8383 (LAP), Docket Entry # 54,(S.D.N.Y. May 5, 2009) ..... 14

Elvis Presley Enter., Inc. v. Elvisly Yours, Inc.,936 F.2d 889 (6th Cir. 1991) 18

ETW Corp. v. Jireh Pub., Inc.,332 F.3d 915 (6th Cir. 2003) 15

General Star Indemnity Company v. AtlanticHospitality of Florida, LLC, 57 So.3d 238(Fla. 3rd DCA 2011) . 20-21

Gibson v. Carmody,89 Civ. 5358 (LMM), 1991 WL 161087(S.D.N.Y. Aug.14, 1991) ... 12


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In re AIR CRASH AT TAIPEI, TAIWAN onOctober 31, 2000, MDL1394-GAF (RCX),2002 WL 32155478(C.D. Cal. Nov. 6, 2002) .... 20

In re Alcatel USA, Inc.,11 S.W.3d 173 (5th Cir. 2000) . 18

In re Bridgestone/Firestone Inc. Tires,205 F.R.D. 535 (S.D. Ind. 2002) .. 19

In re: Columbia Rio Grande Healthcare, L.P.,977 S.W. 2d 433 (Tex. App. Corpus Cristi1998) .. 18

In re United States (Holder),197 F.3d 310 (8th Cir. 1999) 19

James v. Wallace,533 F.2d 963 (5th Cir. 1976) 18

Lederman v. Giuliani,No. 98 Civ. 2024 (LMM), 1998 WL 186753(S.D.N.Y. Apr. 17, 1998) .. 13, 15, 16

Lederman v. N.Y.C. Dep't of Parks & Recreation,901 F. Supp. 2d 464 (S.D.N.Y. 2012) .. inpassim

Lederman v. N.Y.C. Dep't of Parks & Recreation,_F.3d __ (2d Cir. September 25, 2013) . inpassim


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Leroy v. City of Houston,906 F.2d 1068 (5th Cir. 1990) . 18

Lewelling v. Farmers Ins. of Columbus, Inc.,

879 F.2d 212 (6th Cir. 1989) .. 18

Liberty Mutual Ins. Co. v. Superior Court,10 Cal.App.4th 1282, 13 Cal.Rptr.2d 363(1992) 20

Locurto v. Giuliani,95 F. Supp. 2d 161 (S.D.N.Y. 2000) ... 13

M.A. Porazzi Co. v. TheMormaclark,16 F.R.D. 383 (S.D.N.Y. 1951) 13

Mastrovincenzo v. City of New York,435 F.3d 78 (2d Cir. 2006) ... 16

Morales v. E.D. Etnyre & Co.,229 F.R.D. 661 (D.N.M. 2005) . 20

Mule v. Chrysler Corp.,106 F.R.D. 364 (D.R.I. 1985) ... 17

NAACP v. Hunt,891 F.2d 1555 (11th Cir. 1990) ... 20

Northwestern University v. City of Evanston,2001 WL 743756 (N.D. Ill., 2001) ... 19


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Oba Hassan Wat Bey, et al., v. City of New York99 Civ. 3873 (S.D.N.Y. August 2, 2007) 13

Olivieri v. Rodriguez,

122 F.3d 406 (7th Cir. 1997) 19

Overseas Exchange Corp. v. Inwood Motors, Inc.,20 F.R.D. 228 (S.D.N.Y. 1956) . 13

Padberg, et al. v. McGrath-McKechnie,203 F. Supp. 2d 261 (E.D.N.Y. 2002) . 14

Patterson v. Avery Dennison Corp.,281 F.3d 676 (7th Cir. 2002) 19

Pisani v. Westchester County Health Care Corp.,05 Civ. 7113 (WCC), 2007 WL 107747

(S.D.N.Y. Jan. 16, 2007) 12

Salter v. Upjohn Co.,593 F.2d 649 (5th Cir. 1979) 18

Simon & Schuster, Inc. v. Members of N.Y. StateCrime Victims Bd., 502 U.S. 105 (1991) .. 9

Six W. Retail Acquisition v. Sony Theatre Mgmt.Corp., 203 F.R.D. 98 (S.D.N.Y. 2001) . 13

Speadmark Inc. v. Federated Department StoresInc., 176 F.R.D. 116 (S.D.N.Y. 1997) . 13


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State ex rel. Ford Motor Company v. Messina,71 S.W.3d 602 (Mo. 2002) . 19

State of Florida v. Trevous, et al.,

(Seventh Judicial Circuit, St. Johns CountyCase Nos: 07000015MOMA,07000041MOMA; & 07000067MOMA) . 16

Tenenbaum v. Williams,193 F.3d 581(2d Cir.1999) .. 7

Toussie v. County of Suffolk,05 Civ. 1814 (JS) (ARL), 2006 WL1982687(E.D.N.Y. Jul. 13, 2006) . 12

Travelers Rental Co. v. Ford Motor Co.,116 F.R.D. 140 (D. Mass. 1987) .. 17

Tye v. City of Jacksonville, Florida,707 F.Supp. 1298 (M.D. Fla., 1989) 21

United States v. Morgan,313 U.S. 409 (1941) .... 12

United States of American and The Vulcan Society,

Inc. v. City of New York, 07-cv-2067(E.D.N.Y. August 5, 2009) . 12, 14

Wantanabe Realty Corp. v. City of New York,2002 WL 31075822 (S.D.N.Y., 2002) .. 14


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Ward v. Rock Against Racism,491 U.S. 781 (1989) .. 9

WebSide Story, Inc. v. NetRatings, Inc.,

No. 06cv408, 2007 WL 1120567 (S.D. Cal.Apr. 6, 2007) .... 19

Wexler v. City of New Orleans,267 F.Supp 2d 559 (E.D. LA, 2003) ... 16

White v. City of Sparks,500 F.3d 953 (9th Cir. 2007) . 15, 16

Constitutional ProvisionsU.S. Const., amend. I (Speech) . in passimXIV (Due Process) . 3, 17

Statutory Provisions28 U.S.C. 1254(1) .. 142 U.S.C. 1983, 1985, 1986 1, 14

RulesFed. R. Civ. P. 26(c)(1) ...19Fed. R. Civ. P. 56 .. 7

Regulations56 Rules of the City of New York ("R.C.N.Y.")

1-02, 1-05, 1-06 in passim


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Tertiary SourcesBekiempis, Victoria, New York Citys War On

Artists, Newsweek, December 9, 2013

(available online at:http://www.newsweek.com/new-york-citys-war-artists-224075).... 17


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TABLE OF APPENDICESPage

APPENDIX A:

Opinion of the Second Circuit Court ofAppeals affirming the District Court 1a

APPENDIX B:

United States District Court for theSouthern District of New York granting summary

judgment ... 10a

APPENDIX C

United States District Court for theSouthern District of New York granting protectiveorder barring depositions .. 48


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OPINIONS BELOWThe Second Circuits opinion (Pet. App. 1) is

available at Lederman v. N.Y.C. Dep't of Parks &Recreation, _F.3d __ (2d Cir. September 25, 2013).The District Courts summary judgment opinion isreported at Lederman v. N.Y.C. Dep't of Parks &Recreation, 901 F. Supp. 2d 464 (S.D.N.Y. 2012).

JURISDICTIONThis Courts jurisdiction is invoked pursuant

to 28 U.S.C. 1254(1). The judgment of the SecondCircuit was entered on September 25, 2013.

CONSTITUTIONAL AND STATUTORYPROVISIONS INVOLVEDRelevant constitutional and statutory

provisions are U.S. Const., amend. I (Freedom ofSpeech); U.S. Const., amend. IV (Due Process); 42U.S.C. 1983 (Civil Rights); and 56 Rules of theCity of New York ("R.C.N.Y.") 1-02, 1-05, 1-06.

The most relevant portions provide as follows:

First AmendmentCongress shall make no law... abridging the

freedom of speech.


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Fourteenth AmendmentNo person shall be deprived of property

without due process of law.

1983Every person who, under color ofany regulation, custom or usage subjects, or causes to be subjected, anycitizento the deprivation of any rights,privileges, or immunities secured by theConstitution and laws, shall be liable to theparty injured

R.C.N.Y. 1-05 b)b) Unlawful Vending.2) Persons may vend expressive

matter without a permit, but mustcomply with all applicable provisions ofthese rules. However, in the specificlocations enumerated in paragraph (3)expressive matter vendors may only vendexpressive matter at the specifically

designated spots unless they are onlyvending expressive matter without using acart, display stand or other device andwithout occupying a specific location forlonger than necessary to conduct atransaction and are otherwise in compliancewith Department rules.


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3)Expressive matter vendors may not vendin the following general areas unless theyvend at the specifically designated spots for

such vending on the accompanying mapsand in compliance with all other applicableDepartment rules:i) Central Park at the followinglocations: A) the perimeter of the park

between East 85th Street andEast 60th Street, including allsidewalks and plazasB) the perimeter of the parkbetween West 86th Street andWest 60th Street, including allsidewalks and plazasC) all of Central Park South,including all sidewalks andplazasD)Wien Walk and WallachWalk,E)pedestrian pathwaysparallel to East Drive betweenGrand Army Plaza and the

Center Drive,F)Grand Army Plaza,G)Pulitzer Plaza, and(H)Columbus Circle.ii)Battery Park, including all

perimeter sidewalks.


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iii)Union Square Park, including allperimeter sidewalks.iv) Elevated portions of High LinePark.

4) i)No vendor in or on any property underthe jurisdiction of the Department shallallow any item or items used or offered inconjunction with vending to touch, leanagainst or be affixed permanently ortemporarily to any street or park furnitureinstalled on public property or any rockformation, tree, shrub or other planting.ii)No vendor shall block any person from

using any street or park furnitureinstalled on public property by way ofthe vending activity.iii)No vendor shall vend anything in sucha manner that would damage or

otherwise injure Department property,including, but not limited to lawns,plants, animals or buildingsvii)No vendor shall vend anything in anunsuitable location because thelocation is a specialized area

including, but not limited to, a zoo,swimming pool, playground,athletic field or court, or skating rink;

5)No vendor shall vend anythingwhatsoever using a display stand that:


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i)provides less than a twelve (12) footwide clear pedestrian path measured fromthe display on the sidewalk or park path tothe opposite edge of the sidewalk or park

path, except that when there is street orpark furniture on the pedestrian path themeasurement must be taken from thedisplay to two feet from the street or parkfurniture in order to determine whetherthere is less than a twelve (12) foot wideclear pedestrian path;ii)is placed on any other part of a

sidewalk under the Departmentsjurisdiction other than that whichabuts the curb, unless otherwiseauthorized;iii) is within any bus stop, carriagehorse stand, pedicab stand, or taxistand, or is within ten (10) feet of anysubway entrance or exit;iv) is within five (5) feet from anystreet or park furniture, publictelephone, disabled access ramp, tree,or from individuals or entitiesauthorized by permit or license by the

Commissioner to operate at a specificlocation;v) is within ten (10) feet from anycrosswalk on any path or on anysidewalk under the jurisdiction of theDepartment;


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vi)is placed within fifty (50) feet fromany monument or other public artinstallation, including, but not limitedto ornamental fountains;

7)For the purposes of this section, street orpark furniture shall mean any City-installed,maintained or approved structure, includingbut not limited to, benches, newspaper boxes,tree guards, fire hydrants, trash receptacles,telephone kiosks, newsstands, bus shelters,barricades, bollards, traffic signs, trafficlights, walls, water fountains, or fenceslocated in any property under the

jurisdiction of the Department[.]

STATEMENT OF THE CASESince 2010, the New York City Parks

Department has implemented a rule revision thatforecloses most of the interior parkland and muchof the exterior adjacent sidewalks to artistsdisplaying and vending their art. Other favoredspeakers, including corporate interests that payfees to the Parks Department, are not similarly

restricted. This creates an anomaly where purelycommercial speech is more protected thanexpression which is sold.

1. The Second Circuit panel failed toaddress petitioners argument that the DistrictCourt judge ignored five crucial fact controversies.The Second Circuit must review a district court's


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Court judge tried the facts in the movants favor.Petitioners were entitled to all reasonableinferences. Cifra v. General Electric Co., 252 F.3d205, 216 (2d Cir. 2001). Yet the District Court

assessed credibility in favor of the movants evenwhere petitioners presented evidence to thecontrary showing (a) respondents were not truthfulwhen they asserted they were forced by a statecourt decision to suspend enforcement of therevised rules against performers, because theirofficial statements to the press proved that thedecision to suspend enforcement predated the statecourt decision by at least three months; (b) therespondents internal documents indicated thatartists alone and no other type of so-calledexpressive matter vendor were to be targeted forenforcement; (c) respondents conclusory assertionthat much of the 2,700 acres of parkland inManhattan is still available to artists is patentlyfalse because none of the respondents couldarticulate one single bona fide legal spot outsidethe medallions; and (d) the respondents profferedreasons for the revised rules were pretextualbecause the respondents solicited corporatevendors in the very areas they had foreclosed to

artists.2. The Second Circuit panel gave

deference to the District Court judges rejection ofstrict scrutiny despite the rule revisions beingcontent-based on their face and as applied. Lawsthat single out income derived from expressiveactivity for a burden the State places on no other


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income are content-based. Simon & Schuster, Inc. v.Members of N.Y. State Crime Victims Bd., 502 U.S.105, 116 (1991).

Not only does the revision facially targetexpression, but an impermissible distinction wasmade between art that is displayed and art that issold despite Respondents acknowledgment thatboth have the same impact on parkland. The newrules expressly allow artists to display withoutselling, which impermissibly discriminates againstspeech that is sold. However, a secret internalenforcement memo revealed a policy to ticketartists display only set-ups anyway as if theywere selling. There was a policy to target artists

only for their displays while observing a hands-offpolicy towards other so-called Expressive Matter

Vendors such as performers. The courts belowignored these arguments.

3. The rule revision still fails underintermediate scrutiny because there are no amplealternative channels. Regulations cannot stand ifsufficient alternative avenues of communicationare not left open. Ward v. Rock Against Racism,491 U.S. 781, 802 (1989). The Second Circuit

ignored Petitioners argument that the new rulesprohibitions foreclosed almost the entire citysparkland to artists, and incredulously found thatall remaining park areas [outside the medallionspots are] open for vending. Lederman v. N.Y.C.Dep't of Parks & Recreation, _F.3d __, p. 7 (2d Cir.September 25, 2013). Had the Second Circuit panel


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accorded Petitioners the de novo review to whichthey were entitled, a simple reading of the entirerelevant portions of the revised rules and commonsense would have debunked this erroneous

assumption.

The panel instead gave broad deference to J.Sullivans flawed fact-finding where he endorsedthe conclusory and patently false assertion of theRespondents that a significant amount of theParks Departments 2700 acres of parkland inManhattan is available to expressive mattervendors (Lederman v. N.Y.C. Dep't of Parks &Recreation, 901 F. Supp. 2d 464, 478 S.D.N.Y.2012)), citing in their decision to RCNY 1-05(b)(2)which states in relevant part that Persons mayvend expressive matter without a permit, butmust comply with all applicable provisions of theserules. However, compliance with all the otherprovisions necessarily forecloses most of theparkland.

For instance, there can be no art displayedanywhere other than a curb or edge of a pathwayRCNY 1-05(b)(5)(ii). The lawn and other interior

land is prohibited 1-05(b)(4)(i)(iii). Once asidewalk or pathway is found, it must have aminimum 15-ft width because the new ruleincreases the clearance from the art display to theother side of the pathway by 3-ft. The old rule onlyrequired a 12-ft clearance from one side of thepathway to the opposite side, which left a good


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amount of pathways and sidewalks available. Thenew rule requires a 12-ft clearance from the artdisplay 1-05(b)(5)(ii)[emphasis added], which isthree feet in depth 1-05(b)(5)(viii). However, there

are very few areas that have the newly required15-ft width. The extra 3-ft had the design andeffect to foreclose most of the 58 miles of pathwayswithin the parks to artists.

Even if an artist is lucky enough to stumbleupon a 15-ft wide pathway, the new rules furtherprohibit artists from, inter alia, being 5-ft from anypark bench, tree, fence, sign, or other structure(which is broadly defined), and 50-ft from amonument or public art display, or anywhere neara special use area such as zoos, pools, playgrounds,fields, courts or rinks 1-05(b)(4)vii). Moreover, nota single Parks official, including the Commissionerhimself, could articulate a single legal spot outsidethe medallions in any park in the entire city ofNew York. Thus this fact controversy alone wassufficient enough to defeat the summary judgmentmotion.

4. In articulating a new exceptional

circumstances standard for deposing any highgovernmental official, the Second Circuit placed aninsurmountable hurdle on future litigantscomplaining of constitutional and other tortscommitted by those officials. This Court neverintended the standard to bar depositions of nameddefendants or material witnesses with direct


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knowledge, but rather protect a high rankingofficial called merely to testify regarding thereasons for taking official action. United States v.Morgan, 313 U.S. 409, 422 (1941).

The Second Circuits ruling is out of syncwith the other circuits (as discussed infra) as wellas the long established practice in its own districtcourts. A municipal policymaker cannot avoidbeing deposed if he "has been personally involvedin the events at issue in the case." Toussie v.County of Suffolk, 05 Civ. 1814 (JS) (ARL), 2006WL 1982687, at *2 (E.D.N.Y. Jul. 13, 2006)(Lindsay, MJ.)

Personal involvement is broadly defined,such as where an official has engaged inconversations related directly to the claim, Pisani v.Westchester County Health Care Corp., 05 Civ.7113 (WCC), 2007 WL 107747, at *3 (S.D.N.Y. Jan.16, 2007) (Conner, DJ.); has reviewed and madedecisions concerning the case, Atkinson v. Goord,01 Civ. 0761 (LAK) (HBP), 03 Civ. 7759 (LAK)(HBP), 2009 WL 890682, at *2 (S.D.N.Y. Apr. 2,2009) (Pitman, MJ.); or made public statementsrelate to the case, Gibson v. Carmody, 89 Civ. 5358

(LMM), 1991 WL 161087, at*1 (S.D.N.Y.Aug.14,1991)(McKenna, DJ.). Thus, in United States v.City of New York, Judge Garaufis allowed theplaintiffs to depose Mayor Bloomberg after hepublicly stated that he had "chosen to fight" alawsuit filed against the City of New York. 2009WL 2423307, at *2 (E.D.N.Y. Aug. 5, 2009).


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The Southern District has consistentlydeclined to issue protective orders where there isevidence of direct knowledge. See Six W. Retail

Acquisition v. Sony Theatre Mgmt. Corp., 203

F.R.D. 98,10206 (S.D.N.Y. 2001); Speadmark Inc.v. Federated Department Stores Inc., 176 F.R.D.116 (S.D.N.Y. 1997); Overseas Exchange Corp. v.Inwood Motors, Inc., 20 F.R.D. 228 (S.D.N.Y. 1956).

If knowledge is disputed, both the SouthernDistrict and the District Court of Connecticut havedeferred protective orders until lower level partiescould be deposed to ascertain whether the higherlevel individual has unique knowledge. See M.A.Porazzi Co. v. The Mormaclark, 16 F.R.D. 383

(S.D.N.Y. 1951);Amherst Leasing Corp. v. EmhartCorp., 65 F.R.D. 121, 123 (D. Conn. 1974). In

Amherst, the district judge even ordered thedeposition of a high level officer who claimed hehad no knowledge in order to allow the deposingparty an opportunity to test his knowledge. Id. at122.

Even in cases involving deposing the sitting

mayor, the Southern District has continually

denied protective orders where the deponent failed

to show he did not possess direct knowledge. See

Lederman v. Giuliani, No. 98 Civ. 2024 (LMM),

1998 WL 186753 (S.D.N.Y., April 17, 1988);

Locurto v. Giuliani, 95 F. Supp. 2d 161 (S.D.N.Y.

2000); Oba Hassan Wat Bey, et al., v. City of New

York, et al., 99 Civ. 3873(LMM)(RLE) (S.D.N.Y.


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August 2, 2007); Padberg, et al. v. McGrath-

McKechnie, 203 F. Supp. 2d 261 (E.D.N.Y. 2002);

Wantanabe Realty Corp. v. City of New York, 2002

WL 31075822 (S.D. N.Y., 2002); EEOC v.

Bloomberg LP, No. 07-cv-8383 (LAP), Docket Entry

# 54, (S.D.N.Y. May 5, 2009); United States of

American and The Vulcan Society, Inc. v. City of

New York, 07-cv-2067(NGG)(RLM), Docket Entry

#301 (E.D.N.Y. August 5, 2009).

Here, the standard long practiced in theSouthern District for deposing high levelgovernment officials was easily met because of theMayors direct involvement, his statements to thepress and both the Mayors and his Deputyscommunications and interactions with the leadPetitioner. Thus Petitioners were entitled todepose both because they possess direct knowledgeand other relevant evidence pertaining to thePetitioners 1985 and 1986 conspiracy claims.

REASONS FOR GRANTING THE PETITIONThis case offers this honorable Court an

ideal vehicle to resolve pressing and persistent

constitutional questions arising out of amunicipalitys restrictions on expressive activity inpublic land.

This case further offers this Court anopportunity to resolve inconsistencies among the


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circuits regarding depositions of high levelgovernment officials.

I. PRESSING AND PERSISTENTCONSTITUTIONAL QUESTIONS MUSTBE RESOLVED CONCERNING AMUNICIPALITYS RESTRICTIONS ONEXPRESSIVE ACTIVITY ON PUBLICLAND.Petitioners are artists who are challenging

the park rules on several grounds, including theFirst and Fourteenth Amendments. They believethat the regulations violate their right to freedom

of expression, that the Citys stated interest inprotecting the aesthetics of the parks, balancingusage, and preventing congestion are pretextual,and that visual artists are unfairly targeted to beeradicated in order to advance the purelycommercial interests of corporate vendors who paythe Parks Department a premium to use the land.

Only three circuits have held that art isentitled to full First Amendment protection, even ifsold. Bery v. City of New York, 97 F.3d 689, 696

(2d Cir. 1996) cert. den., 520 U.S. 1251 (1997);ETW Corp. v. Jireh Pub., Inc., 332 F.3d 915, 924-37(6th Cir. 2003); White v. City of Sparks, 500 F.3d953, 956 (9th Cir. 2007). The Second Circuit hasruled that the City cannot require permits on thesidewalks (Beryat 713) or in the parks. Ledermanv. Giuliani, No. 98 Civ. 2024 (LMM), 1998 WL186753 (S.D.N.Y. Apr. 17, 1998).


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Other jurisdictions afford less protectionunder an expression classification, and have evenbanned the sale of art in public places like

Honolulu and parts of Florida; required generalvending permits, such as in Seattle; and imposedspecial permits for expression, such as in Los

Angeles and Miami. Some artists have beensuccessful in securing their First Amendmentrights. A town in Maryland reached a pre-litigationsettlement to exempt artists from the permitrequirement. Book sellers were able to overturn aban in New Orleans. Wexler v. City of New Orleans,267 F.Supp 2d 559 (E.D. Louisiana, 2003). Artistsovercame a permit requirement in Nevada. White v.City of Sparks. And a Florida criminal court usedthe predominant expressive purposes test from theSecond Circuit (Mastrovincenzo v. City of NewYork, 435 F.3d 78 (2d Cir. 2006)) to find charges ofvending without a permit against quilt and maskmakers unconstitutional. State of Florida v.Trevous, et al., (Seventh Judicial Circuit, St. JohnsCounty Case Nos: 07000015MOMA.07000041MOMA; and 07000067MOMA).

Despite these pyrrhic victories, many artistselsewhere have reported difficulties in raisingfunds to challenge these unconstitutionalordinances, or in findingpro bono, capable counsel.Because the artists line of cases in the SecondCircuit (Bery, Lederman, and Mastrovincenzo)have been successfully cited to establish rights inother jurisdictions, many artists across America


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have contributed what they could afford (anywherefrom $5 to $100) to fund the printing of thispetition. If these Petitioners rights are notvindicated, it will have an adverse domino effect on

all other artists. Moreover, the nationalsignificance of this case was recently reported byNewsweek (Bekiempis, Victoria, New York CitysWar On Artists, Newsweek, December 9, 2013(available online at: http://www.newsweek.com/new-york-citys-war-artists-224075).

II. INCONSISTENCIES AMONG THECIRCUITS MUST BE RESOLVEDREGARDING THE DEPOSITIONS OFHIGH LEVEL GOVERNMENT OFFICIALS.The Second Circuits application of the

exceptional circumstances standard to affirm aprotective order barring the depositions of two highlevel government officials with direct knowledgebecause Petitioners could not identify withparticularity the information possessed is at oddswith the jurisprudence of the other circuits.

The First Circuit has also articulated the

exceptional circumstances standard (Bogan v.City of Boston, 489 F.3d 417, 423 (1st Cir. 2007)),but allows depositions where the high level officialwas directly involved. Travelers Rental Co. v. FordMotor Co., 116 F.R.D. 140, 145 (D. Mass. 1987);Mule v. Chrysler Corp., 106 F.R.D. 364 (D.R.I.1985).


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The Third and Fourth Circuits have beensilent on the issue, but the Fifth and Sixth followan apex standard which is similar to exceptionalcircumstances (Crown Cent. Petroleum Corp. v.

Garcia, 904 S.W.2d 125 (Tex. 1995); Alberto v.Toyota Motor. Corp., 289 Mich. App. 328, 796N.W.2d 490, 502 (2010)), and allows the depositionof a high level official who is directly involved aftera good-faith effort to obtain the informationthrough less intrusive means. See In reAlcatelUSA, Inc., 11 S.W.3d 173 (5th Cir. 2000); CrownCent., 904 S.W.2d at 128 (Tex. 1995); Leroy v. Cityof Houston, 906 F.2d 1068, 1073 (5th Cir. 1990).

If the party resisting being deposed claims

lack of knowledge, the apex doctrine requires anaffidavit (In re: Columbia Rio Grande Healthcare,L.P.977 S.W. 2d 433 (Tex. App. Corpus Cristi 1998;Elvis Presley Enter., Inc. v. Elvisly Yours, Inc., 936F.2d 889, 894 (6th Cir. 1991)) and the opposingcounsel can depose lower level officials to testwhether the higher official has knowledge. Salter v.Upjohn Co., 593 F.2d 649 (5th Cir. 1979). A sittinggovernor could not escape being deposed becausehis testimony was relevant to the civil rightsclaims alleging his direct involvement regardingstate board appointments and commissions. Jamesv. Wallace, 533 F.2d 963, 965 (5th Cir. 1976). TheSixth Circuit protects the high level official byallowing sanctions and attorneys fees wherediscovery abuses occur. Lewelling v. Farmers Ins.of Columbus, Inc., 879 F.2d 212, 218 (6th Cir. 1989).


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The Seventh Circuit does not adhere to theapex doctrine and instead utilizes FRCP 26(c) toquash burdensome discovery. Patterson v. AveryDennison Corp., 281 F.3d 676, 681 82 (7th Cir.

2002), and has prevented high level governmentofficials from being deposed about the performanceof their official duties unless there is some reasonto believe that the deposition will produce or leadto admissible evidence. Olivieri v. Rodriguez, 122F.3d 406, 409-10 (7th Cir. 1997). However, thedistrict court did not bar the depositions of themayor and city manager when the judge found theylikely possessed relevant information.Northwestern University v. City of Evanston, 2001WL 743756, *4 (N.D. Ill., 2001).

The Eighth Circuit follows the exceptionalcircumstances doctrine (In re United States(Holder), 197 F.3d 310, 316 (8th Cir. 1999)), but thedistrict courts employ a balancing test to ensurefairness to both sides. State ex rel. Ford MotorCompany v. Messina, 71 S.W.3d 602, 607 (Mo.2002); In re Bridgestone/Firestone Inc. Tires, 205F.R.D. 535 (S.D. Ind. 2002).

The Ninth Circuit has no controlling

authority, but because of discovery abuse thedistrict courts shifted the burden to show the needto obtain the deposition of a high ranking official.WebSide Story, Inc. v. NetRatings, Inc., No.06cv408, 2007 WL 1120567, at *3-4 (S.D. Cal. Apr.6, 2007). However, the courts will not issueprotective orders if there is a showing of direct


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knowledge. In re AIR CRASH AT TAIPEI,TAIWAN on October 31, 2000, MDL1394-GAF(RCX), 2002 WL 32155478 (C.D. Cal.Nov. 6, 2002);Liberty Mutual Ins. Co. v. Superior Court, 10

Cal.App.4th 1282, 13 Cal.Rptr.2d 363 (1992).

The Tenth Circuit is yet to resolveinconsistencies among its district courts. Coloradodeclined to issue a protective order where therewas direct knowledge (EchoStar Satellite, LLC v.Splash Media Partners LLC, 2009 WL 1328226, *2(D.Colo. May 11, 2009)), Oklahoma requires aburden shift to the resistor (Crest Infiniti, II, LP v.Swinton, 2007 OK 77, 174 P.3d 996), and NewMexico sets limits to avoid abuse and harassment.

Morales v. E.D. Etnyre & Co., 229 F.R.D. 661(D.N.M. 2005).

In the Eleventh Circuit a protective orderwill not issue where there is direct knowledge.

Alabama's Governors deposition was warrantedregarding the law he helped legislate to allow theconfederate flag to fly above the state capitolbuilding. NAACP v. Hunt, 891 F.2d 1555, 1562(11th Cir. 1990). However, an Alabama districtcourt found a year later that the knowledge must

be truly unique in denying access to the VicePresident of General Motors. Baine v. GeneralMotors Corp., 141 F.R.D. 332, 334 (M.D.Ala.1991).Florida, on the other hand, has not adopted theapex doctrine (Citigroup, Inc. v. Holtsberg, 915So.2d 1265 (Fla. 1st DCA 2005); General StarIndemnity Company v. Atlantic Hospitality of


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Florida, LLC, 57 So.3d 238 (Fla. 3rd DCA 2011))and set limits to depose the Mayor of Jacksonvilleonly when alleged to be an active participant indiscriminatory conduct, including retaliation

against city employees who seek legal redress forperceived discrimination. Tye v. City ofJacksonville, Florida, 707 F.Supp. 1298 (M.D. Fla.,1989).

Finally the DC Circuit requires a showing bythe party seeking the deposition that the high levelofficial has unique personal knowledge,(Community Federal Sav. & Loan Assn v. FHLBB,96 F.R.D. 619 (D.D.C. 1983)), but allowsdepositions of lower level officials to ascertain

whether the higher official has that knowledge.Broadcasting Co. v. U.S. Info. Agency, 599 F.Supp.765 (D. D.C. 1984).

The Second Circuits imposition of theexceptional circumstances standard in this case,where the Petitioners established that the officialshad direct knowledge, and the officials failed todispute this in an affidavit, creates a per se rulethat requires potential future civil rights litigantsto peer into the minds of high level oppressors and

material witnesses to divine detailed informationto be gleaned. This new rule is out of harmony withthe other circuits and creates an anomaly wherehigh-ranking officials will be immune to suit fortheir civil rights abuses. Thus, this Court shouldgrant the Petition to settle the law and resolvethese aforementioned controversies.


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CONCLUSIONFor all the foregoing reasons, petitioners

respectfully request that the Supreme Court grant

review of this matter.Respectfully submitted,

JULIE M. MILNER*SVETLANA MINEVICH

MILNER LAW OFFICE, PLLC8302A Broadway, Third Floor Suite

Elmhurst, NY 11373(718) 766-5242

[email protected]* Counsel of Record, Admission Pending

Attorneys for Petitioners


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APPENDIX


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Appendix A

1a

APPENDIX A OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE SECOND

CIRCUIT, DATED SEPTEMBER 25, 2013

UNITED STATES COURT OF APPEALSFOR THE SECOND CIRCUIT

Docket No. 12-4333-cv

August Term 2013

(Submitted: August 23, 2013Decided: September 25, 2013)

ROBERT LEDERMAN, JACK NESBITT,

Plaintiffs-Appellants,

v.

NEW YORK CITY DEPARTMENT OF PARKS ANDRECREATION, as a Municipal agency, ADRIAN

BENEPE, Commissioner, in his individual and officialcapacity as Parks Commissioner, CITY OF NEW

YORK, as a municipality, MICHAEL BLOOMBERG,Honorable Mayor, in his individual and official capacity,

Defendants-Appellees.

ON APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE SOUTHERNDISTRICT OF NEW YORK.


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Before: CABRANES, HALL, and CHIN, Circuit Judges.

Appeal from a judgment of the United States DistrictCourt for the Southern District of New York (Richard J.Sullivan, J.) granting defendants-appellees motion forsummary judgment, and dismissing the complaint in thisFirst Amendment challenge to regulations governing

the sale of expressive matter in New York City parks.Plaintiffs-appellants also challenge the District Courtsprotective order barring them from deposing the Mayorand a former deputy mayor of the City of New York.

AFFIRMED.

CHIN, Circuit Judge:

Plaintiffs-appellants Robert Lederman and JackNesbitt appeal from a judgment of the United States

District Court for the Southern District of New York(Richard J. Sullivan, J.), granting summary judgmentto defendants-appellees New York City Departmentof Parks and Recreation, former Parks Commissioner

Adria n Benepe, the City of New York, and MayorMichael Bloomberg (collectively, the City), dismissingthe complaint. Plaintiffs also appeal from the DistrictCourts June 1, 2011 order granting the Citys motion fora protective order under Fed. R. Civ. P. 26(c). We affirm.

BACKGROUND

Plaintiffs are visual artists who sell their workson sidewalks and in public parks in New York City. Over


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the years, the City has attempted to regulate the salesof expressive matter including books, art, sculpture,and photos in certain parts of New York City, andplaintiffs have challenged the Citys efforts on First

Amendment grounds.See, e.g., Bery v. City of New York,97 F.3d 689 (2d Cir. 1996);Lederman v. Giuliani, No. 98Civ. 2024 (LMM), 1998 U.S. Dist. LEXIS 5468, 1998 WL

186753 (S.D.N.Y. Apr. 17, 1998).

Between 2001 and 2010, the number of expressive-matter vendors increased significantly in certain Cityparks. In 2010, the City revised the vending regulationsin response to this increase. See56 Rules of the City ofNew York (R.C.N.Y.) 1-02, 1-05. Under the revisedregulations, expressive-matter vendors may generally

vend, without a permit, anywhere in the Citys parks,provided they comply with certain minimum requirementsrelating to their activities, such as restrictions on the

size and placement of their vending tables. See id. 1-05(b)(4)-(8). To sell their wares in Union Square Park,Battery Park, High Line Park, and portions of CentralPark, however, expressive-matter vendors may only

vend in a limited number of designated spots, allocatedon a non-discretionary first-come, first-served basis.Seeid. 1-06(b)(2)-(3). Plaintiffs commenced this action tochallenge the 2010 revisions.

During discovery, plaintiffs sought to take thedepositions of Mayor Bloomberg and former Deputy

Mayor Edward Skyler. On June 1, 2011, the District Courtissued a protective order barring those depositions.


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On September 30, 2012, the District Court grantedsummary judgment to defendants, dismissing thecomplaint and holding, inter alia, that the 2010 revisionsdid not violate the First Amendment. See Lederman v.

N.Y.C. Dept of Parks & Recreation, 901 F. Supp. 2d 464,479 (S.D.N.Y. 2012).

This appeal followed.

DISCUSSION

On appeal, plaintiffs contest: (1) the District Courtsholding that the vending regulations are valid content-neutral time, place, and manner restrictions; and (2)the District Courts order barring the depositions ofMayor Bloomberg and former Deputy Mayor Skyler. Wereview an order granting summary judgment de novoand resolv[e] all ambiguities and draw[ ] all permissible

factual inferences in favor of the party against whomsummary judgment is sought.Burg v. Gosselin, 591 F.3d95, 97 (2d Cir. 2010) (quoting Wright v. Goord, 554 F.3d255, 266 (2d Cir. 2009)). We review an order granting aprotective order for abuse of discretion, which we willfind only if the district courts decision rests on an errorof law or a clearly erroneous finding of fact, or if thedecision cannot be located within the range of permissibleoutcomes.See S.E.C. v. TheStreet.Com, 273 F.3d 222, 228& n.6 (2d Cir. 2001).


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A. Summary Judgment

Expressive matter sold in public places is entitled tofull First Amendment protection. Bery v. City of NewYork, 97 F.3d 689, 696 (2d Cir. 1996). Even in publicforums, however, the government may impose reasonablecontent-neutral restrictions on the time, place, or manner

of protected speech. Hous. Works, Inc. v. Kerik, 283F.3d 471, 478 (2d Cir. 2002) (citing Ward v. Rock AgainstRacism, 491 U.S. 781, 791, 109 S. Ct. 2746, 105 L. Ed. 2d661 (1989)).

The Supreme Court has held that the principalinquiry in determining content neutrality . . . is whetherthe government has adopted a regulation of speechbecause of [agreement or] disagreement with the messageit conveys. See Turner Broad. Sys., Inc. v. F.C.C., 512U.S. 622, 642, 114 S. Ct. 2445, 129 L. Ed. 2d 497 (1994)

(alteration in original) (citation and internal quotationmarks omitted). [L]aws that confer benefits or imposeburdens on speech without reference to the ideas or viewsexpressed are in most instances content neutral. Id. at643.

Content-neutral time, place, and manner restrictionsare subject to intermediate scrutiny. Mastrovincenzov. City of New York, 435 F.3d 78, 98 (2d Cir. 2006).Such restrictions pass constitutional muster if they arenarrowly tailored to serve a significant government

interest, while leaving open ample alternative channelsfor communication of the information.Id.; see Watchtower

Bible & Tract Socy of New York, Inc. v. Village of Stratton,536 U.S. 150, 175, 122 S. Ct. 2080, 153 L. Ed. 2d 205 (2002).


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Plaintiffs argue, as they did before the DistrictCourt, that the vending regulations are content-basedrestrictions, which lack proper justification and are undulyrestrictive. We agree with the District Court that theregulations are content-neutral restrictions that operate

within constitutional limits.

The vending regulations apply to all expressive-matter vendors, regardless of the message the vendorswares convey. They were passed not in an attempt tosuppress vendors ability to market their wares, but to filla gap in the larger regulatory scheme governing vendingon Parks Department property.

The Citys interests here alleviating congestionand improving circulation, promoting the aesthetics of theparks, and ensuring that the parks are available to thepublic for a wide range of activities are indisputably

significant. The regulations are narrowly tailored becausethe City imposed spot designations only in the mostheavily used areas, while leaving all remaining park areasopen for vending.SeeR.C.N.Y. 1-05(b)(2)-(3). Moreover,the regulations allocate spot designations on afirst-come,first-served basis without reference to the ideas or viewsexpressed in the materials in question.

Accordingly, we affirm the judgment of the DistrictCourt substantially for the reasons articulated in theDistrict Courts thorough and well-reasoned opinion.


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B. Protective Order

Plaintiffs also contend that the District Court erredby issuing a protective order in response to their requestto depose Mayor Bloomberg and former Deputy MayorSkyler.

Under Rule 26(c), a party . . . may move for aprotective order . . . to protect a party or person fromannoyance, embarrassment, oppression, or undue burdenor expense . . . forbidding the disclosure or discovery.Fed. R. Civ. P. 26(c)(1).

In United States v. Morgan, 313 U.S. 409, 422, 61S. Ct. 999, 85 L. Ed. 1429 (1941), the Supreme Courtlong ago expressed concern that the District Courthad required a high-ranking government official theSecretary of Agriculture to submit to a deposition.

Since then, courts have relied onMorganto hold that ahigh-ranking government official should not absentexceptional circumstances be deposed or called totestify regarding the reasons for taking official action,including the manner and extent of his study of therecord and his consultation with subordinates. Id.; see

Bogan v. City of Boston, 489 F.3d 417, 423 (1st Cir. 2007);In re United States (Holder), 197 F.3d 310, 313-14 (8thCir. 1999);In re FDIC, 58 F.3d 1055, 1060 (5th Cir. 1995);

In re United States (Kessler), 985 F.2d 510, 512 (11th Cir.1993); Franklin Sav. Assn v. Ryan, 922 F.2d 209, 211

(4th Cir. 1991);Simplex Time Recorder Co. v. Secretaryof Labor, 766 F.2d 575, 586, 247 U.S. App. D.C. 85 (D.C.Cir. 1985); Kyle Engg Co. v. Kleppe, 600 F.2d 226, 231-


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32 (9th Cir. 1979); Warren Bank v. Camp, 396 F.2d 52,56-57 (6th Cir. 1968). We have not previously addressedthis issue in a precedential decision. We now hold that,to depose a high-ranking government official, a partymust demonstrate exceptional circumstances justifyingthe deposition for example, that the official has uniquefirst-hand knowledge related to the litigated claims or that

the necessary information cannot be obtained throughother, less burdensome or intrusive means.Bogan v. Cityof Boston, 489 F.3d 417, 423 (1st Cir. 2007);In re United

States (Holder), 197 F.3d 310, 316 (8th Cir. 1999). High-ranking government officials are generally shielded fromdepositions because they have greater duties and timeconstraints than other witnesses. In re United States(Kessler), 985 F.2d 510, 512 (11th Cir. 1993). If courts didnot limit these depositions, such officials would spend aninordinate amount of time tending to pending litigation.

Bogan, 489 F.3d at 423.

Here, plaintiffs did not demonstrate exceptionalcircumstances. They did not identify with particularitythe information they needed, nor did they contend thatBloomberg and Skyler had first-hand knowledge aboutthe litigated claims or that the relevant information couldnot be obtained elsewhere.See id. at 423.

Plaintiffs argue that they had no other means ofobtaining the information . . . they needed from then-Commissioner Adrian Benepe because, [w]hen deposed,

Benepe claimed not to know any of the answers to thequestions regarding the information plaintiffs neededfrom the Mayor and his former Deputy. Plaintiffs did


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not show, however, that Bloomberg and Skyler had theinformation they were seeking from Benepe.1

We conclude that the District Court did not abuseits discretion in issuing the protective order barringthe depositions of Mayor Bloomberg and former DeputyMayor Skyler.

CONCLUSION

We have considered all of the parties remainingarguments on appeal and find them to be without merit.For the reasons stated above, we AFFIRMthe judgmentof the District Court.

1. Plaintiffs have not, in any event, preserved for appellatereview their principal arguments concerning the protectiveorder. To preserve arguments for appellate review, appellantsmust include in their briefs their contentions and the reasonsfor them, with citations to the authorities and parts of the recordon which the appellant relies. Fed. R. App. P. 28(a)(9)(A). Issuesnot sufficiently argued will be deemed waived and ineligible forappellate review.Norton v. Sams Club, 145 F.3d 114, 117 (2d Cir.1998). Appellants do not preserve questions for appellate review by[m]erely incorporating an argument made to the district courtby reference in their brief. Frank v. United States, 78 F.3d 815,833 (2d Cir. 1996), vacated on other grounds, 521 U.S. 1114, 117 S.

Ct. 2501, 138 L. Ed. 2d 1007 (1997) (mem.). In their brief, plaintiffsrefer to twelve points they argued in a joint letter submittedto the District Court. Plaintiffs do not, however, elaborate furtheras to what those twelve points are.


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Appendix B

10a

APPENDIX B MEMORANDUM AND ORDER

OF THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK,

FILED SEPTEMBER 30, 2012

UNITED STATES DISTRICT COURT FOR THESOUTHERN DISTRICT OF NEW YORK

No. 10 Civ. 4800 (RJS)

ROBERT LEDERMAN AND JACK NESBITT,

Plaintiffs,

versus

NEW YORK CITY DEPARTMENT OF PARKSAND RECREATION, et al.,

Defendants.

September 30, 2012

MEMORANDUM AND ORDER

RICHARDJ. SULLIVAN, District Judge:

Plaintiffs Robert Lederman and Jack Nesbitt, visualartists who sell their work on sidewalks and in publicparks in New York City (the City), bring this suitchallenging the constitutionality of recent revisions to

the Rules of the City of New York (R.C.N.Y.) governingwhere expressive matter vendors defined as sellers ofbooks, art, and similar work may sell their wares.See


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56 R.C.N.Y. 1-02, 1-05 (the Revisions). Specifically,the Revisions contemplate that in Battery Park, UnionSquare Park, the High Line, and certain parts of CentralPark, expressive matter vendors may set up displaystands and the like for sales only in a limited number ofdesignated spots, which are allocated on a first-come,first-served basis (the spot designations).Id. 1-05(b)(2)-(3).

Additionally, the Revisions set forth general restrictionson the sale of expressive matter in non-designated areasof Central Park and all other City parks (the generalexpressive matter vending restrictions). Id. 1-05(b)(4)-(8).

Before the Court is Defendants motion for summaryjudgment, made pursuant to Federal Rule of CivilProcedure 56.1For the reasons that follow, Defendantsmotion is granted in its entirety.

1. Defendants also include Mayor Michael Bloomberg and ParksCommissioner Adrian Benepe, in their individual and officialcapacities, and the City of New York. Although the law is clear thatthe Department of Parks and Recreation is not a proper defendant,since a City agency is not a suable entity, seeN.Y. City Charter

ch. 17, 396;Bissinger v. City of N.Y., 06 CIV. 2325 (WHP), 2007U.S. Dist. LEXIS 70155, 2007 WL 2826756, at *5 (S.D.N.Y. Sept.24, 2007), neither party has contested the issue, and the Courtdoes not address it here.


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I. BACKGROUND2

The New York City Department of Parks andRecreation (the Parks Department) is charged withthe management and care of all parks in the City, and isdirected to maintain the beauty and utility of those parks.

SeeNew York City Charter (Charter) 533(a)(1); (Decl.

of Jack T. Linn, dated Sept. 7, 2011, Doc. No. 40 (LinnDecl.), 3). To fulfill this mandate, the Parks Departmentis authorized to promulgate rules and regulations for theuse, management, and protection of public parks. Charter 533(a)(9). These rules and regulations are set forth in 56R.C.N.Y. 1-01, et seq. (SeeLinn Decl. 3.)

Under the Parks Departments Rules, vendingconstitutes selling, offering for sale, hiring, leasing,letting, or providing or offering to provide services oritems in exchange for a donation. 56 R.C.N.Y. 1-05(b)

(1). It is generally unlawful to vend on property underthe Parks Departments jurisdiction, including thesidewalks that adjoin parkland, without a permit from

2. The facts are taken from the parties briefsfiled in connectionwith this motion (Def. Br., Pl. Br., and Def. Reply Br.), theparties Local Civil Rule 56.1 Statements (Def. 56.1 and Pl.Reply 56.1), the parties supplemental briefing (Pl. Supp. Br.and Def. Supp. Br.), the parties post-briefing submissions tothe Court (Def. Ltr. and Pl. Ltr.), the declarations submittedin connection with the instant motions, and the exhibits attachedthereto. The facts are undisputed unless otherwise noted. Where

one partys 56.1 Statement is cited, the other party does notdispute the fact asserted, has offered no admissible evidence torefute that fact, or merely objects to inferences drawn from thatfact.


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the Parks Department.Id.; Charter 533(a)(5). However,vendors of expressive matter defined as materialsor objects with expressive content, such as newspapers,books or writings, or visual art such as paintings, prints,photography, or sculpture are not required to obtainpermits to sell their wares on Parks Department property.56 R.C.N.Y. 1-02; 1-05(b)(2).

Likewise, no license is required to vend expressivematter on City streets and sidewalks that are not underthe Parks Departments jurisdiction. SeeN.Y.C. Admin.Code (Admin. Code) 20-473; Bery v. City of NewYork, 97 F.3d 689 (2d Cir. 1996). However, expressivematter vendors on the Citys streets and sidewalksmust nonetheless comply with the General Vendor Lawsrelating to, inter alia, the size and placement of their

vending tables as set forth in the Citys AdministrativeCode. Admin. Code 20-465(a)-(f), (k)-(q), 20-473. These

restrictions do not address the parks specifically, and theParks Department does not have authority to enforcethem. (Linn Decl. 6-7.)

A. Prior Attempts to Regulate Expressive Matter

Vendors3

Though expressive matter vendors are exempt fromthe permit and license requirements applicable to vendors

3. The Court set forth an overview of the Citys previous attempts

to regulate expressive matter vendors and the resulting litigationin more detail in its Memorandum and Order, dated July 16, 2010.See Lederman v. N.Y.C. Dept of Parks & Recreation, Nos. 10 Civ.4800 (RJS), 10 Civ. 5185 (RJS), 2010 U.S. Dist. LEXIS 71425, 2010WL 2813789, at *1-3 (S.D.N.Y. July 16, 2010) (Lederman III). TheCourt presumes the parties familiarity with that Memorandumand Order.


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of other goods, the City has several times attempted topromulgate rules to regulate expressive matter vendors incertain respects. As a result of those efforts, the City and

various expressive matter vendors have waged an ongoingbattle with regard to the Citys regulation of where andhow those vendors may sell their wares.

For example, in 1996, in Bery v. City of New York,the Second Circuit addressed a licensing scheme thatrequired all vendors other than book sellers to obtain ageneral vendor license before selling their wares in anypublic space. 97 F.3d 689, 692 (2d Cir. 1996). As part ofthe regulatory scheme, only 853 general vendor licenses

were issued, and licenses became available only to newapplicants when current license holders failed to renew.

Id. As a result, at the time of the Berydecision, thewaiting list to acquire a license had grown to between500 and 5,000, and no new licenses had been issued in

the previous fifteen years.Id. at 693, 697 n.7. The SecondCircuit concluded that expressive matter vendors wereentitled to full First Amendment protection and, onthese facts, that the Citys licensing scheme operated asa de factobar preventing visual artists from exhibitingand selling their art in public areas in New York. Id. at696-97. Consequently, the Second Circuit concluded thatthe regulations were too sweeping to pass constitutionalmuster.Id. at 697.

Taking to heart the Bery courts suggestion that

there exist less intrusive means to accomplish the Citysobjectives, such as a rotating first-come, first-servedlottery system for assigning a limited number of licenses,


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id. at 698 n.8 (citation omitted), the City amended itsregulatory scheme in 1998 to provide for seventy-fivesite-specific permits for art vendors in Manhattan parks,see Lederman v. Giuliani, No. 98 Civ. 2024 (LMM), 1998U.S. Dist. LEXIS 5468, 1998 WL 186753, at *1 (S.D.N.Y.

Apr. 17, 1998) (Lederman I). As part of that scheme,each permit gave its holder a legal right to sell his work

in a specifi

c area for one month at a cost of twenty-fivedollars. Id. In the event that more than seventy-five

people appl[ied] for the seventy-five sites available inManhattan, or if there [were] more applications thanspaces available for any particular location, the ParksDepartment would hold a random-draw lottery for eachmonth. 1998 U.S. Dist. LEXIS 5468, [WL] at *2. Afterdeclining to obtain permits, and consequently beingticketed, the plaintiffs in Lederman Ibrought suit andattempted to preliminarily enjoin further enforcementof the regulations on the grounds that the regulations

violated the First and Fourteenth Amendments.See 1998U.S. Dist. LEXIS 5468, [WL] at *3-4.

The Honorable Lawrence M. McKenna, District Judge,denied the motions for a preliminary injunction, holdingthat the regulations were content-neutral time, place,and manner restrictions. 1998 U.S. Dist. LEXIS 5468,[WL] at *3, *6. Specifically, Judge McKenna concludedthat, first, [t]he City undoubtedly has a significantinterest in preserving and promoting the scenic beautyof its parks, providing sufficient areas for recreational

uses, and preventing congestion in park areas and onperimeter sidewalks. 1998 U.S. Dist. LEXIS 5468, [WL]at *3. Additionally, he found that the regulations [were]


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narrowly tailored to serve the governments interest.Id. Finally, Judge McKenna held that the regulationsleft open alternative avenues for communication,because [a]n unlimited number of permits are availablefor Prospect Park in Brooklyn and [a]ny artist vendor

who is foreclosed from obtaining a permit or chooses notto obtain one may, under Bery, sell his artwork on any

other public sidewalk throughout the City not withinthe jurisdiction of the Parks Department, subject onlyto narrow restrictions. 1998 U.S. Dist. LEXIS 5468,[WL] at *3-4. After discovery, the parties filed motionsfor summary judgment. At that point, Judge McKennaconcluded without disturbing his preliminary analysisof the regulations constitutionality that, as a matterof state administrative law, the regulations should beinterpreted not to apply to expressive matter vendors.

See Lederman v. Giuliani, No. 98 Civ. 2024 (LMM), 2001U.S. Dist. LEXIS 11567, 2001 U.S. Dist. LEXIS 11567,

2001 WL 902591, at *6 (S.D.N.Y. Aug. 7, 2001) (LedermanII), affd70 F. Appx 39, 40 (2d Cir. 2003).

B. The Revisions

After Judge McKennas decision, the City saw anincrease in vendors in certain parks between 2001 and2010. (SeeLinn Decl. 9-10; id. Ex. B; Decl. of SherylR. Neufeld, dated Sept. 7, 2011, Doc. No. 38 (NeufeldDecl.), Ex. L at 11:15-20, 16:20-17:3; id. Ex. N at 31:18-21.)To address concerns about the proliferation of vendors in

those parks, the Parks Department began to contemplateways to regulate expressive matter vendors on itsproperty. (Linn Decl. 6, n.3.) The Parks Department


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specifically targeted expressive matter vendors becausevendors of non-expressive matter were already subject tonumerous requirements set forth in the individual permitsissued to them by the Parks Department. (Linn Decl. 12; Decl. of Julie Milner, dated Oct. 10, 2011, Doc. No. 61(Milner Decl.), Ex. F4); see also56 R.C.N.Y. 1-05(b)(1)(No person in or on any property under the jurisdiction

of the Department shall [vend] except under and withinthe terms of a permit, or except as otherwise providedby law.).

On March 24, 2010, the Parks Department publishedthe proposed Revisions, and on April 23, 2010, held a publichearing at which over 100 members of the public expressedtheir opinion of the proposed rules. (Linn Decl. 11, 13,22, Ex. A.) Based on the comments at the hearing, and over200 written comments, the proposed rules were revised,and the revised rules were published in the City Record

on June 18, 2010. (Id. 11, 13, Ex. A.) The revised rulesbecame effective on July 19, 2010. (Id. 13.) Under thefinal version of the Revisions,

[p]ersons may vend expressive matter . . . onproperty under jurisdiction of the [Parks]Department without a permit, but must comply

with all applicable provisions of these rules.However, in the specific locations enumeratedin paragraph (3)[,] expressive matter vendorsmay only vend expressive matter at the

4. The Court notes that the Canned Art presentation, attachedto the Declaration of Julie Milner as part of Exhibit F, appearsto be incomplete.


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specifically designated spots identified by theCommissioner in the accompanying maps andas marked by a [Parks] Department decal,medallion, or other form of marking, on thespecific location of the approved vendingspot, unless they are only vending expressivematter without using a card, display stand or

other device and without occupying a specifi

clocation for longer than necessary to conducta transaction and are otherwise in compliance

with [Parks] Department rules.

These spots shall be allocated upon afirst[-]come, first[-]serve[d] basis except asotherwise provided by law and any expressivematter vendor may only vend expressivematter centered directly behind the [Parks]Department decal, medallion, or other form of

marking . . . .

Expressive matter vendors can only occupy thedesignated spots for the purpose of vendingexpressive matter and only during postedtimes, which will be consistent with the hoursof operation for the park where such designatedspots are located in or adjacent to.

56 R.C.N.Y. 1-05(b)(2) (paragraph breaks added).

Section 1-05(b)(3) of the Revisions specifies the spotdesignations as follows:


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[e]xpressive matter vendors may not vend in thefollowing general areas unless they vend at thespecifically designated spots for such vendingon the accompanying maps and in compliance

with all other applicable Department rules:

(i) Central Park at the following locations:

(A) the perimeter of the park between East85th Street and East 60th Street, includingall sidewalks and plazas[,] (B) the perimeterof the park between West 86th Street and

West 60th Street, including all sidewalks andplazas[,] (C) all of Central Park South, includingall sidewalks and plazas[,] (D) Wien Walk and

Wallach Walk, (E) pedestrian pathways parallelto East Drive between Grand Army Plaza andthe Center Drive, (F) Grand Army Plaza, (G)Pulitzer Plaza, and (H) Columbus Circle.

(ii) Battery Park, including all perimetersidewalks.

(iii) Union Square Park, including all perimetersidewalks.

(iv) Elevated portions of High Line Park.

Id. 1-05(b)(3) (paragraph breaks added).

The accompanying maps referenced in section1-05(b)(3) set forth sixty-eight spots for expressivematter vendors in the designated portions of Central


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the Revisions to performers would deprive tangible artvendors of their already limited access to the designatedspots. (Pl. Br. at 14-15.) Plaintiffs asserted that, becauseperformance artists who expect to draw a crowd of twentyor more are already subject to permitting requirements,further requiring that performers use the medallions

was an attempt by Defendants to drive visual artists out

of City parks. (Id.)

However, on February 23, 2012 after briefing inthis matter had concluded a New York State appellatecourt issued a decision calling Defendants interpretationinto question.See In re New York Skyline, Inc. v. City of

New York, 94 A.D.3d 23, 939 N.Y.S.2d 42 (N.Y. App. Div.2012). In Skyline, the New York State Supreme Court,

Appellate Division, First Department read the definitionof vendor in the Citys Administrative Code whichresembles the definition of vendor in the Revisions

to exclude entertainers.Id. at 27. The First Departmentreasoned that, because the Code required vendors ofgoods and services to obtain permits, and because[a]s a matter of common parlance, one would not saythat [entertainment] is a service, entertainers need notobtain permits to sell their wares. Id.; see alsoAdmin.Code 20-452(b), 20-453 (defining a vendor as aperson who . . . sells . . . goods or services and requiring avendor to be licensed). Following the decision, in March2012, the Parks Department announced that the Revisions

would no longer be enforced against performers. (Def.

Supp. Br. at 3; Def. Ltr., dated Sept. 24, 2012, Doc. No.79 (Def. Ltr.), at 2.)


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D. Procedural History

Plaintiffs filed the present action on June 18, 2010 the same day that the Revisions were published. On June24, 2010, the Court issued an Order denying Plaintiffsapplication for an ex partetemporary restraining order.By Order dated July 16, 2010, the Court denied Plaintiffs

motion for a preliminary injunction.6

After the parties engaged in extensive discovery,including depositions of multiple high-ranking ParksDepartment officials, interrogatories, and the production ofnumerous documents, Defendants filed the instant motionon September 9, 2011. (Doc. No. 34.) The motion was fullysubmitted as of October 20, 2011. However, on May 14,2012, Plaintiffs requested permission to supplement therecord with evidence of Defendants changed enforcementpolicy as to performers following the Skylinedecision

(Doc. No. 71); that same day, the Court granted Plaintiffsrequest and permitted Defendants to file a response (id.).In their response, Defendants asserted that the changedenforcement policy was temporary pending the Citysappeal of the Skyline decision. The Court heard oralargument on the motion on July 20, 2012.

6. On July 7, 2010,Dua v. New York City Department of Parksand Recreation, 10 Civ. 5185, was referred to this Court as related

to the present matter. Plaintiffs in that case voluntarily dismissedthe suit on July 12, 2011. See Dua v. N.Y.C. Dept of Parks &Recreation, 10 Civ. 5185 (RJS), Doc. No. 37. The case was closedon July 12, 2011.


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On August 30, 2012, the New York State Court ofAppeals denied the Citys motion for leave to appeal theSkylinedecision, In re New York Skyline, Inc. v. Cityof New York, No. 2012-642, 19 N.Y.3d 809, 975 N.E.2d913, 2012 N.Y. LEXIS 2019, 951 N.Y.S.2d 467, 2012 WL3743746, at *1 (N.Y. Aug. 30, 2012), and on September 20,2012, the Court directed the parties to make submissions

concerning the impact, if any, of that ruling on theinstant motion (Doc. No. 78). Complying with that order,Defendants responded that the current Revisions wouldnot be enforced against performers but declared theirintent to amend the Revisions so that they would againapply to and be equally enforced against performers and

vendors of tangible art. (Def. Ltr., dated Sept. 24, 2012,Doc. No. 79 (Def. Ltr.), at 2.) Abandoning their earlierposition, Plaintiffs replied that the Skylinedecision is amere post-hoc justification for Defendants long-standingpractice of targeting visual artists for enforcement, and

that the Revisions should be ruled unenforceable intheir present state, regardless of Defendants intent torevise them, because of their unequal impact on similarlysituated artists. (Pl. Ltr., dated Sept. 26, 2012, Doc. No.81 (Pl. Ltr.), at 2-3.)

II. LEGALSTANDARD

Pursuant to Federal Rule of Civil Procedure 56(a),a court may not grant a motion for summary judgmentunless the movant shows that there is no genuine

dispute as to any material fact and the movant is entitledto judgment as a matter of law. Fed. R. Civ. P. 56(a).The moving party bears the burden of showing that it is


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entitled to summary judgment.See Anderson v. LibertyLobby, Inc., 477 U.S. 242, 256, 106 S. Ct. 2505, 91 L. Ed.2d 202 (1986). The court is not to weigh evidence but isinstead required to view the evidence in the light mostfavorable to the party opposing summary judgment, todraw all reasonable inferences in favor of that party, andto eschew credibility assessments.Amnesty Am. v. Town

of W. Hartford, 361 F.3d 113, 122 (2d Cir. 2004) (internalquotation marks omitted); accord Anderson, 477 U.S. at248. As such, if there is any evidence in the record fromany source from which a reasonable inference in the [non-moving partys] favor may be drawn, the moving partysimply cannot obtain a summary judgment. Binder &

Binder PC v. Barnhart, 481 F.3d 141, 148 (2d Cir. 2007)(internal quotation marks omitted).

III. DISCUSSION

Plaintiffs challenge the Revisions, which regulatethe time, place, and manner of the sale of expressivematter, under the First Amendment. (See Pl. Br. at2-23.) Plaintiffs also challenge the Revisions under theFourteenth Amendment, asserting that they impingeon their fundamental First Amendment rights and areenforced selectively against art vendors, as opposed tocorporate vendors or performers. (SeePl. Br. at 23-29.)Finally, Plaintiffs allege several violations of their civilrights, under 42 U.S.C. 1985 and 1986, as well asretaliation for exercising their free speech rights. For the

reasons set forth below, the Court finds that Defendantsare entitled to summary judgment on each of Plaintiffsclaims.


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A. First Amendment Claims

Though the expressive matter sold by Plaintiffs isafforded full First Amendment protection, see Bery, 97F.3d at 695-96, the City may, within constitutional limits,regulate the time, place, and manner of activities in publicparks, see Ward v. Rock Against Racism, 491 U.S. 781,

791, 109 S. Ct. 2746, 105 L. Ed. 2d 661 (1989); HousingWorks, Inc. v. Kerik, 283 F.3d 471, 478 (2d Cir. 2002). Todetermine if a time, place, and manner regulation passesconstitutional muster, it is first necessary to decide if theregulation is content neutral. Courts apply intermediatescrutiny to content-neutral time, place, and mannerregulations, upholding reasonable restrictions that arenarrowly tailored to meet a significant government interestand leave open ample alternative means of communication.

Mastrovincenzo v. City of New York, 435 F.3d 78, 98 (2dCir. 2006). Conversely, content-based regulations are

subject to strict scrutiny and are presumptively invalid.See, e.g., R.A.V. v. City of St. Paul, 505 U.S. 377, 382, 112S. Ct. 2538, 120 L. Ed. 2d 305 (1992).

1. Content Neutrality

As the Court held in its Memorandum and Orderdenying Plaintiffs motion for a preliminary injunction, theRevisions, as drafted, are unquestionably content-neutral.

See Lederman v. N.Y.C. Dept of Parks & Recreation, No.10 Civ. 4800 (RJS), 2010 U.S. Dist. LEXIS 71425, 2010 WL

2813789, at *8 (S.D.N.Y. July 16, 2010) (Lederman III).Nevertheless, Plaintiffs continue to press the argument,first advanced in their motion for a preliminary injunction,


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that the Revisions are content-based because theytreat expressive matter vendors differently from other

vendors, such as commercial and corporate ones. (Pl. Br.at 10-15.) The fact that the Revisions target expressivematter vendors is undisputed. However, Plaintiffs aresimply mistaken in their assertion that all regulationsdistinguishing between speakers warrant strict scrutiny.

Turner Broad. Sys., Inc. v. Fed. Commcns Commn, 512U.S. 622, 657, 114 S. Ct. 2445, 129 L. Ed. 2d 497 (1994).In fact, heightened scrutiny is unwarranted when thedifferential treatment [between speakers] is justified bysome special characteristic of the particular [speaker]being regulated.Id. at 660-61. Expressive matter vendorsclearly have such a special characteristic specifically,the fact that they are not covered by the regulationsthat govern other vendors. Thus, strict scrutiny isnot warranted merely because the Revisions target[expressive matter vendors] and no other type of vendor

or parkgoer. (Pl. Br. at 8.)

As the Supreme Court has explained:

[t]he principal inquiry in determining contentneutrality, in speech cases generally and intime, place, or manner cases in particular,is whether the government has adopted aregulation of speech because of disagreement

with the message it conveys. The governmentspurpose is the controlling consideration. A

regulation that serves purposes unrelated tothe content of expression is deemed neutral,even if it has an incidental effect on somespeakers or messages but not others.


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Ward, 491 U.S. at 791, accord Hous. Works, Inc. v. Kerik,283 F.3d 471, 480 (2d Cir. 2002). In this case, the Revisionsare completely unrelated to the content of the expressivematter being sold. Plaintiffs have put forth no evidenceto indicate that the Revisions as drafted treat typesof expressive matter differently based on the ideas ormessages that they convey. Further, Plaintiffs have not

demonstrated that the spot designations are distributedaccording to the content of the expressive matter sold.Put simply, the Revisions apply to allexpressive matter,regardless of the content of the item sold.

Further, the Revisions as enforced are content-neutral. In their supplemental briefing, Plaintiffs assertthat Defendants decision to exempt performers fromthe Revisions is an impermissible restriction based oncontent. (Pl. Supp. Br. at 5.) Putting aside Plaintiffsearlier position that including performers under the

Revisions was evidence of content-based animus, Plaintiffsagain offers a mistaken view of content neutrality. First,there are any number of special characteristic[s]distinguishing vendors of tangible art and performingartists that support the present policy, not least amongthem that, as Plaintiffs acknowledge, performers arealready subject to permitting requirements when theyexpect to draw large crowds. Second, Defendantspurpose in adopting the new policy was to comply withan unanticipated (and arguably ill-reasoned7) court

7. Indeed, Judge Buchwald reached the contrary conclusion inher analysis of the Revisions definition of vendor. Specifically,Judge Buchwald held that vending encompasses face paintingand the making of balloon animals when done for donations.See


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ruling a matter plainly divorced from the content oftangible art vendors speech. Finally, the Citys presentenforcement policy is a sharp departure from the licensingregime struck down in Bery, where visual art vendors

were effectively banned while book vendors operatedlargely unfettered.See Bery, 97 F.3d at 696. There, thecourt suggested that the regulation might be content-

based due to the risk that the effective bar on the saleof [visual] artwork in public places raises concerns thatan entire medium of expression is being lost. Id. Thesame simply cannot be said of the Revisions, given theirrelatively limited impact on tangible art vendors in onlyfour City parks. Because the Revisions do not thus raise[]suspicions that [Defendants] objective was, in fact, thesuppression of certain ideas, Turner, 512 U.S. at 660, theRevisions are content neutral as enforced.

Nor do the Revisions reflect government disapproval

of the protected activity of sellingexpressive matter.SeeLederman III, 2010 U.S. Dist. LEXIS 71425, 2010 WL2813789, at *6-7. As an initial matter, the Revisions arepart of a larger regulatory scheme that governs the time,place, and manner of allvendors sales.See56 R.C.N.Y. 1-05(b)(3); (Linn Decl. Ex. F). Although the Revisionsapply only to expressive matter vendors, once again, this issimply because courts have struck down previous attemptsto treat expressive matter vendors like all other vendors.

See Bery, 97 F.3d at 698-99. Indeed, expressive mattervendors are treated more favorablythan other vendors

Alhovsky v. N.Y.C. Dept of Parks & Recreation, No. 11 Civ. 3669(NRB), 2012 U.S. Dist. LEXIS 116602, 2012 WL 3552916 (S.D.N.Y.Aug. 16, 2012), at *3-4.


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they can sell their wares without a general vendor license,they can sell in any public space in the City subject only tothe General Vendor Laws, and they can sell in any spaceunder the Parks Department jurisdiction subject only tothe limited general expressive matter vending restrictionsset forth in section 1-05(b)(3).8

Plaintiffs argument that the Revisions specifi

cally,the spot designations were designed to be a clandestinelicensing scheme a[nd] an end run around this Courts

jurisprudence (Pl. Br. at 8) is not only unsupported bythe record but also fails as a matter of law. In support ofthis apparent argument that the Revisions delegate toobroad discretion to authorities, Plaintiffs offer nothingmore than the evidence that Parks officials are charged

with overseeing the distribution of the spot designationseach morning, and that Parks officials are vested with theauthority to enforce the Revisions and issue summonses

for those vendors who are not in compliance. (Id. at 10.)Even if these facts were not obviously insufficient as amatter of law, they have nothing to do with the content

8. The Court notes that, at oral argument, Plaintiffs seemed tosuggest that vendors who are subject to the permit scheme in theGeneral Vendor Laws are somehow better off than Plaintiffs.(See Tr. 21:5-22:17.) However, there is nothing in the record tosuggest that the General Vendor Laws, applicable to commercialvendors, are less restrictive than the Revisions. Further, nothingin the record indicates that Plaintiffs are prohibited from seeking

a general vendor permit. Finally, it must be reiterated thatthe Revisions are, in large part, a response to Plaintiff RobertLedermans prior course of litigation that endeavored to exemptvisual art vendors from the General Vendor Laws.


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of the expressive matter being sold as opposed to thecategoryof vendor selling them.See Mastrovincenzo, 435F.3d at 99 (Unlike a licensing scheme in which there areno limiting criteria or standards for when a license will berequired, New York Citys licensing requirement appliesacross the board to all non-exempt vendors. (citationomitted)).

Accordingly, as content-neutral regulations, theRevisions will pass constitutional muster if they arenarrowly tailored to serve a significant governmentalinterest and leave open ample alternative channels forcommunication.See Ward, 491 U.S. at 791 (quoting Clarkv. Cmty. for Creative Non-Violence, 468 U.S. 288, 293, 104S. Ct. 3065, 82 L. Ed. 2d 221 (1984)) (internal quotationmarks omitted).

2. Significant Government Interests

Defendants assert that the Revisions were promulgatedin order to promote the Citys interests in

alleviating congestion and improving circulation,promoting aesthetics by preserving the integrityof the overall design of the parks, including theneed to preserve landscapes and scenic views,and ensuring that the parks are available to thepublic for a wide range of activities, includingactive and passive recreation, performances,

demonstrations and the viewing of historicalmonuments and public art exhibits.


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(Def. Br. at 8-9; see alsoLinn Decl. Ex. A at 4 (the Revisionsaddress concerns . . . related to the proliferation, incertain parks, of expressive matter vendors and the impactthey can have on parkland and other park visitors. . . . [T]oaccommodate the interest of a broad range of park visitors,including the interests of expressive matter vendors who

wish to operate on parkland, the rules establish general

park locations where vendors may operate and minimumrequirements regarding vending activity.).) Withoutquestion, these interests are significant. See Ward, 491U.S. at 797 (The city enjoys a substantial interest inensuring the ability of its citizens to enjoy whateverbenefits the city parks have to offer . . . .); Clark, 468 U.S.at 296 ([The g]overnment[ has a] substantial interestin maintaining the parks . . . in an attractive and intactcondition, readily available to the millions of people who

wish to see and enjoy them by their presence.);Bery, 97F.3d at 697 (The City certainly has a significant interest

in keeping its public spaces safe and free of congestion.);Lederman I, 1998 U.S. Dist. LEXIS 5468, 1998 WL186753, at *3 (The City undoubtedly has a significantinterest in preserving and promoting the scenic beauty ofits parks, providing sufficient areas for recreational uses,and preventing congestion in park areas and on perimetersidewalks.).

Indeed, Plaintiffs do not dispute that these statedpurposes implicate government interests. Rather,Plaintiffs argue that Defendants stated interests are

pretextual, and that Defendants actually promulgatedthe Revisions to drive visual artists out of the parks orto retaliate against Plaintiffs personally. (Pl. Br. at 10-20,


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32-34.) Once again, however, Plaintiffs arguments thatthe Revisions were promulgated because of an animusagainst artists finds no support in the record. Plaintiffsargue that vendors of all sorts increased in the Citys parksbetween 2001 and 2010, and the Revisions therefore betraythe Citys animus against artists because the Revisionstarget expressive matter vendors. (Pl. Reply 56.1 14,

16.) As discussed above, however, the Revisions targetexpressive matter vendors specifically because thosevendors were not subject to the regulatory schemes thatgovern other vendors.

Plaintiffs also note that, leading up to the promulgationof the Revisions, the Parks Department discussed onlyart and artists in relation to defining expressive matter

vendors. (Pl. Br. at 12.) However, the record indicatesthat the Parks Department tracked primarily artists asa means of gauging the increase in expressive matter

vending and that the Revisions were spurred, in part, bythe dramatic increase in art vendors. (Linn Decl. 9, 10;id. at Ex. B; seePl. Reply 56.1 14; Milner Decl. at Ex. F.)That the Parks Department used artists as shorthandfor expressive matter vendors does not betray animusagainst artists. Nor is there any indication that the ParksDepartments proffered reasons for promulgating theRevisions were a pretext for driving artists out of theparks.

Plaintiffs advance several other theories to support

their argument that the Parks Departments reasons forpromulgating the Revisions were pretextual. (Pl. Br. at 15-20.) These theories also fail. For example, Plaintiffs insist


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that Defendants proffered reasons

lederman v. nyc dept. of parks_petition for writ

Documents