Michael Marcavage v. The City of New York

25 Michael Marcavage and Steven Lefemine ("Plaintiffs”),

26 protesters at the 2004 Republican National Convention at

27 Madison Square Garden, were arrested after they failed to

2

1 comply with police instructions to move along from an area

2 where demonstrating was prohibited and to one designated for

3 protesting. They brought this suit under 42 U.S.C. § 1983

4 against the New York City Police Department ("NYPD”), the

5 Police Commissioner, three NYPD officers, and others

6 (collectively, "Defendants”), seeking declaratory and

7 injunctive relief as well as money damages. Plaintiffs

8 claim the NYPD's policy around the convention violated the

9 First Amendment and that Plaintiffs' arrest violated the

10 Fourth Amendment. This appeal is taken from a judgment of

11 the United States District Court for the Southern District

12 of New York (Sullivan, J.) granting summary judgment in

13 favor of Defendants. We conclude that the restriction on

14 speech was a reasonable time, place, and manner restriction,

15 and that the arrests were supported by probable cause.

16

17 BACKGROUND

18 The Convention. The 2004 Republican National

19 Convention ("the Convention”) was held from August 30 to

20 September 2 at Madison Square Garden ("the Garden”) in

21 midtown Manhattan. The security planners of the NYPD

22 understood that political conventions are potential

23 terrorist targets and therefore prepared for the possibility

3

1 that groups and individuals would engage in criminal conduct

2 that could significantly endanger public safety. The NYPD

3 was also responsible for accommodating commuters,

4 businesses, and residents in the vicinity. As many as

5 50,000 people were expected to attend the four-day

6 Convention. The NYPD anticipated that there would be a

7 volume of protest activity not seen in New York City in

8 decades, including potentially hundreds of thousands of

9 protesters throughout the city.

10 The Garden sits atop Pennsylvania Station ("Penn

11 Station”), one of the transportation hubs of New York City.

12 Approximately 1,300 trains and 600,000 riders pass through

13 Penn Station each day. The vicinity is ordinarily congested

14 by vehicular and pedestrian traffic; a major event at the

15 Garden can bring thousands of additional pedestrians.

16 The complex is a superblock bordered by Seventh and

17 Eighth Avenues to the east and west, and by 31st and 33rd

18 Streets to the south and north. During the Convention,

19 Seventh Avenue was closed to non-emergency vehicle traffic

20 from 31st Street to 34th Street. The crosswalk at Seventh

21 Avenue and 32nd Street was open to pedestrians, who could

22 use it without waiting for non-emergency traffic.

23

24

4

1 The NYPD implemented a three-zone system outside the

2 Garden: a demonstration area, a frozen area (with no

3 pedestrian traffic), and a no-demonstration area.

4 In the "frozen zone”--the Seventh Avenue sidewalk

5 adjacent to the Garden between 31st and 33rd Streets--

6 barriers were erected and all pedestrian traffic was

7 prohibited.

8 Directly across Seventh Avenue from the frozen zone was

9 the "no-demonstration” zone between 31st and 33rd Streets.

10 People on that east sidewalk were not permitted to protest,

11 distribute leaflets, or congregate in that area, even if

12 they remained in motion and kept up with the flow of

13 pedestrian traffic.1 NYPD officers advised people in the

1 Defendants contend that the zone was actually a nostanding

zone, where people were not permitted to stand

still or congregate but where they could engage in

expressive activity, such as protesting, so long as they

kept up with the flow of traffic and did not congregate in

groups. However, Plaintiffs adduced testimony from NYPD

officials that people in this zone were not permitted to

demonstrate or distribute leaflets, even if they remained in

motion and kept up with the flow of pedestrian traffic.

Because this case comes to us on appeal from the grant of

summary judgment for Defendants, we must view the evidence

in the light most favorable to the non-moving party (here,

Plaintiffs). Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir.

2003). Accordingly, we must credit Plaintiffs' evidence and

accept, as the district court did, that the zone along the

east side of Seventh Avenue was a no-demonstration zone--not

a no-standing zone. See Marcavage v. City of New York, No.

05 Civ. 4949(RJS), 2010 WL 3910355, at *5 (S.D.N.Y. Sept.

29, 2010).

5

1 vicinity of the Garden to go to the demonstration zone if

2 they wanted to protest.

3 The "demonstration zone” was the full width of Eighth

4 Avenue, extending south from 31st Street. Within the

5 demonstration zone, expressive activity was permitted at any

6 time during the Convention. The NYPD issued sound permits

7 and constructed a stage for demonstrators at the north end

8 of the demonstration area, near the 31st Street

9 intersection, closest to the Garden. Thousands of

10 protesters used the demonstration area.

11 The Protest. On September 1, 2004, Plaintiffs were

12 standing in the no-demonstration zone between 32nd and 33rd

13 Streets, holding anti-abortion signs--one sign was four by

14 six feet, the other was three by five. Plaintiffs were

15 approximately five feet from the facade of the Pennsylvania

16 Hotel, where (they contend) they were outside the flow of

17 pedestrian traffic. After 10 to 15 minutes, they were

18 approached by police officers.

19 The officers repeatedly told Plaintiffs they could not

20 protest there, and directed them to the demonstration zone.

21 Plaintiffs objected that the demonstration zone was not

22 within sight and sound of the Convention attendees and that

23 they did not want to be in the demonstration zone lumped

24 with other demonstrators. At some point during the

6

1 encounter, Plaintiffs moved to the south side of 32nd

2 Street, in the general direction of the demonstration zone

3 (which was south and west of the initial location). But

4 Plaintiffs continued to contest the officers' commands. All

5 told, Plaintiffs were ordered to leave 17 times by three

6 different police officers before they were informed that

7 they were blocking traffic and placed under arrest.

8 Marcavage and Lefemine were charged with disorderly

9 conduct, and Marcavage was also charged with resisting

10 arrest. All charges against Marcavage were ultimately

11 dismissed. Lefemine accepted an adjournment in

12 contemplation of dismissal for his charge of disorderly

13 conduct. The charge was ultimately dismissed.

14 The Proceedings. Plaintiffs brought the present action

15 under § 1983 alleging violations of the First and Fourth

16 Amendments and seeking money damages and equitable relief.

17 The district court granted summary judgment for Defendants,

18 holding that the NYPD's policy was a permissible time,

19 place, and manner restriction on expression, and that

20 probable cause supported Plaintiffs' arrest. Marcavage v.

21 City of New York, No. 05 Civ. 4949(RJS), 2010 WL 3910355

22 (S.D.N.Y. Sept. 29, 2010). Plaintiffs filed this appeal.

7

1 DISCUSSION

2 We review the grant of summary judgment de novo.

3 Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d

4 Cir. 2003). Summary judgment is appropriate if there is no

5 genuine issue as to any material fact and the moving party

6 is entitled to judgment as a matter of law. Id. In

7 assessing a motion for summary judgment, we are "required to

8 resolve all ambiguities and draw all permissible factual

9 inferences in favor of the party against whom summary

10 judgment [was granted].” Terry v. Ashcroft, 336 F.3d 128,

11 137 (2d Cir. 2003) (internal quotation marks omitted).

12

13 I

14 A question has arisen as to this Court's jurisdiction

15 to consider the claims for declaratory and injunctive

16 relief.

17 Article III limits the subject matter jurisdiction of

18 federal courts to actual "cases” or "controversies,” U.S.

19 Const. art. III, § 2, cl. 1; accord Friends of the Earth,

20 Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180

21 (2000), which requires, among other things, that a plaintiff

22 sustain the burden of establishing standing, Raines v. Byrd,

23 521 U.S. 811, 818-19 (1997); Simon v. E. Ky. Welfare Rights

24 Org., 426 U.S. 26, 37-38 (1976).

8

1 Plaintiffs lack standing to pursue their equitable

2 claims. To obtain prospective relief, such as a declaratory

3 judgment or an injunction, a plaintiff must show, inter

4 alia, "a sufficient likelihood that he [or she] will again

5 be wronged in a similar way.” City of Los Angeles v. Lyons,

6 461 U.S. 95, 111 (1983). That is, a plaintiff must

7 demonstrate a "certainly impending” future injury. Whitmore

8 v. Arkansas, 495 U.S. 149, 158 (1990) (internal quotation

9 marks omitted); accord O'Shea v. Littleton, 414 U.S. 488,

10 496 (1974). In establishing a certainly impending future

11 injury, a plaintiff cannot rely solely on past injuries;

12 rather, the plaintiff must establish how he or she will be

13 injured prospectively and that the injury would be prevented

14 by the equitable relief sought. Whitmore, 495 U.S. at 158-

15 59; Lyons, 461 U.S. at 102-03; O'Shea, 414 U.S. at 495-96.

16 Neither party's national convention will be in New York

17 City in 2012, and there is no prospect that a national

18 convention will be coming anytime to the Garden, or that, if

19 one did, similar policies regarding pedestrian traffic and

20 protesters would be enacted or enforced. Since Plaintiffs

21 have not demonstrated a certainly impending future injury

22 that could be redressed by this Court, we lack jurisdiction

23 to adjudicate their claims for equitable relief.

24

9

1 Standing to seek retrospective relief, such as damages,

2 requires a showing that [1] the plaintiff suffered an injury

3 in fact that is concrete and not conjectural or

4 hypothetical, [2] the injury is fairly traceable to the

5 actions of the defendant, and [3] the injury will be

6 redressed by a favorable decision. Lujan v. Defenders of

7 Wildlife, 504 U.S. 555, 560-61 (1992). Plaintiffs make the

8 requisite showing as to their claim for damages.

9 Because we have jurisdiction over the claims for money

10 damages, we turn to them now.

11

12 II

13 Plaintiffs contend that the no-demonstration zone along

14 Seventh Avenue was an unreasonable time, place, and manner

15 restriction, and therefore violated the First Amendment.

16 Preliminarily, we consider [1] whether Plaintiffs were

17 engaged in First Amendment protected activity [2] in a

18 traditional public forum, and [3] if the restriction on

19 speech was unrelated to content. See Ward v. Rock Against

20 Racism, 491 U.S. 781, 790-91 (1989).

21 First, Plaintiffs' display of a political sign

22 constituted political speech, which "is entitled to the

23 fullest possible measure of constitutional protection.” See

24 Members of the City Council v. Taxpayers for Vincent, 466

10

1 U.S. 789, 816 (1984); see also Frisby v. Schultz, 487 U.S.

2 474, 479 (1988) (peacefully picketing); United States v.

3 Grace, 461 U.S. 171, 176 (1983) (peacefully displaying signs

4 or leaflets).

5 Second, Plaintiffs were carrying out their expressive

6 activity in a traditional public forum. "Sidewalks, of

7 course, are among those areas of public property that

8 traditionally have been held open to the public for

9 expressive activities,” Grace, 461 U.S. at 179; accord

10 Frisby, 487 U.S. at 480, and the sidewalks of New York are

11 the "prototypical” traditional public forum, Schenck v. Pro-

12 Choice Network of W. N.Y., 519 U.S. 357, 377 (1997); accord

13 Loper v. N.Y.C. Police Dep't, 999 F.2d 699, 704 (2d Cir.

14 1993). "Speech finds its greatest protection in traditional

15 public fora,” Make the Road by Walking, Inc. v. Turner, 378

16 F.3d 133, 142 (2d Cir. 2004)--though even there the right is

17 "not absolute,” United for Peace & Justice v. City of New

18 York, 323 F.3d 175, 176 (2d Cir. 2003) (per curiam).

19 Third, as Plaintiffs concede, the restraint on

20 expressive activity was content neutral. Blue Br. at 26.

21 This concession is well-taken. A regulation is content

22 neutral when it is "justified without reference to the

23 content of the regulated speech.” City of Renton v.

24 Playtime Theatres, Inc., 475 U.S. 41, 48 (1986) (emphasis

11

1 and internal quotation mark omitted). The restriction on

2 expressive activity was not aimed at the content of the

3 message; no demonstrating of any kind was allowed in that

4 zone.

5 Since Plaintiffs were engaged in expressive activity in

6 a public forum and the regulation was content neutral, the

7 restriction on speech near the Convention is properly

8 characterized as a time, place, and manner restriction.

9 Such restrictions are permissible if they "'[1] are

10 justified without reference to the content of the regulated

11 speech, [2] . . . are narrowly tailored to serve a

12 significant governmental interest, and [3] . . . leave open

13 ample alternative channels for communication of the

14 information.'” Ward, 491 U.S. at 791 (quoting Clark v.

15 Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984)).

16 Defendants bear the burden of demonstrating that the

17 regulation was constitutional. United States v. Playboy

18 Entm't Grp., Inc., 529 U.S. 803, 816-17 (2000); Deegan v.

19 City of Ithaca, 444 F.3d 135, 142 (2d Cir. 2006).

20 Since the restriction was content neutral, the decisive

21 issues are narrow tailoring and alternative channels.

22

23

24

12

1 A

2 Whether the NYPD's policy was narrowly tailored to

3 serve a significant government interest depends on the

4 importance of the government's interest and the breadth of

5 the speech restriction.

6

7 1

8 Government "certainly has a significant interest in

9 keeping its public spaces safe and free of congestion.”

10 Bery v. City of New York, 97 F.3d 689, 697 (2d Cir. 1996);

11 accord Mastrovincenzo v. City of New York, 435 F.3d 78, 100

12 (2d Cir. 2006) ("[R]educing sidewalk and street congestion

13 in a city with eight million inhabitants[] constitute[s] [a]

14 significant governmental interest[] . . . .”) (internal

15 quotation marks omitted). And "there can be no doubting the

16 substantial government interest in the maintenance of

17 security at political conventions.” Bl(a)ck Tea Soc'y v.

18 City of Boston, 378 F.3d 8, 12 (1st Cir. 2004).

19 Plaintiffs contend that Defendants adduced insufficient

20 evidence to support these interests and instead relied on

21 unspecific, generic security rationales.

22 The record amply establishes non-security reasons for

23 banning protesters from occupying a crowded sidewalk. The

24 considerable interests of the "millions of residents,

13

1 visitors, and workers must be balanced” against the interest

2 of protesters. See Concerned Jewish Youth v. McGuire, 621

3 F.2d 471, 478 (2d Cir. 1980); see also Mastrovincenzo, 435

4 F.3d at 100. The stretch of Seventh Avenue in front of the

5 Garden is a crowded thoroughfare even without major sports

6 or political events at the Garden, with commuters, shoppers,

7 tourists, residents, and other people passing through. The

8 freezing of the western sidewalk channeled all those

9 pedestrians to the one side designated a no-demonstration

10 zone. The City had the requisite significant interest in

11 keeping that channel clear for pedestrians.

12 The government interest in security is also

13 significant. In the Fourth Amendment context, we have held

14 that "no express threat or special imminence is required

15 before we may accord great weight to the government's

16 interest in staving off considerable harm.” MacWade v.

17 Kelly, 460 F.3d 260, 272 (2d Cir. 2006). "All that is

18 required is that the 'risk to public safety [be] substantial

19 and real' instead of merely 'symbolic.'” Id. (brackets in

20 original) (quoting Chandler v. Miller, 520 U.S. 305, 322-23

21 (1997)). These principles also apply in the First Amendment

22 context. Because "security protocols exist to deal with

23 hypothetical risks”--and "security planning

24 is necessarily concerned with managing potential risks,

14

1 which sometimes necessitates consideration of the worst-case

2 scenario”--it is "appropriate” for governments to consider

3 possible security threats and the role that protesters may

4 play in causing such threats or inadvertently preventing the

5 authorities from thwarting or responding to such threats.

6 Citizens for Peace in Space v. City of Colo. Springs, 477

7 F.3d 1212, 1223-24 (10th Cir. 2007). "As long as a designed

8 security protocol reduces a plausible and substantial safety

9 risk, it directly and effectively advances a substantial

10 government interest.” Id. at 1224; see also Bl(a)ck Tea

11 Soc'y, 378 F.3d at 13 ("[T]he government's judgment as to

12 the best means for achieving its legitimate objectives

13 deserves considerable respect.” (citing Ward, 491 U.S. at

14 798-99)).

15 The police had to design measures to cope with a

16 security challenge that was altogether extraordinary. The

17 Convention was in the middle of New York City, adjacent to

18 Penn Station. Fifty thousand attendees were expected for

19 the Convention itself. Protesters of different persuasions

20 would descend. Vehicle and pedestrian traffic would be re21

routed along two main arteries. The national conventions

22 that year were the first following the 2001 terror attacks.

23 The President was coming, as well as the Vice President and

24 a host of other government officials. These facts, taken

15

1 together, bespeak a significant--indeed, compelling--

2 government interest in security.

3

4 2

5 The Government must also show that its policy was

6 "narrowly tailored” to achieve that significant government

7 interest. Ward, 491 U.S. at 791.

8 A regulation is narrowly tailored "'so long as [it]

9 . . . promotes a substantial government interest that would

10 be achieved less effectively absent the regulation,'” and is

11 "not substantially broader than necessary to achieve the

12 government's interest.” Id. at 799-800 (quoting United

13 States v. Albertini, 472 U.S. 675, 689 (1985)); accord

14 Deegan, 444 F.3d at 143 ("The 'narrowly tailored' standard

15 does not tolerate a time, place, or manner regulation that

16 may burden substantially more speech than necessary to

17 achieve its goal . . . .”).

18 The no-demonstration zone was narrowly tailored to

19 achieve significant government interests. The restricted

20 zones were confined to a two-block stretch of Seventh Avenue

21 and were in place only during the four days of the

22 Convention. And the policy was tailored to meet the

23 congestion and security challenges that the Convention

24 presented. The frozen zone was limited to the sidewalk

16

1 immediately in front of a single side of the Garden. The

2 no-demonstration zone was limited to the opposite sidewalk,

3 which had to be kept unobstructed to accommodate the heavy

4 pedestrian traffic that usually occupies both sides. These

5 facts therefore distinguish this case from United States v.

6 Grace, 461 U.S. 171 (1983), and Lederman v. United States,

7 291 F.3d 36 (D.C. Cir. 2002), which both considered year8

round prohibitions on sidewalk demonstrations in places

9 without the dense crowds of protesters and pedestrians that

10 beset the holding of the Republican National Convention in

11 the middle of Manhattan.

12 Plaintiffs argue that the no-demonstration zone was not

13 narrowly tailored because protesters were barred even from

14 forms of expression that did not increase congestion, such

15 as carrying a sign while keeping up with the flow, or

16 standing to one side. It may be, as Plaintiffs suggest,

17 that a no-standing zone or no-large-sign zone would have

18 been a less restrictive alternative, but "narrowly tailored”

19 does not mean the "least restrictive or least intrusive

20 means.” Ward, 491 U.S. at 798. "[R]estrictions on the

21 time, place, or manner of protected speech are not invalid

22 'simply because there is some imaginable alternative that

23 might be less burdensome on speech.'” Id. at 797 (quoting

24 Albertini, 472 U.S. at 689); accord id. at 800 ("[T]he

17

1 regulation will not be invalid simply because a court

2 concludes that the government's interest could be adequately

3 served by some less-speech-restrictive alternative.”). A

4 regulation is narrowly tailored "so long as [it]

5 . . . promotes a substantial government interest that would

6 be achieved less effectively absent the regulation” and is

7 "not substantially broader than necessary.” Id. at 799-800

8 (internal quotation marks omitted).

9 The no-demonstration zone does not burden substantially

10 more speech than necessary, even if alternatives are

11 conceivable. Even if protesters kept walking, they would

12 occlude pedestrian passage, especially when they picketed

13 back and forth. Policing a less than clear-cut regulation

14 also would risk the fact or appearance of selective

15 enforcement based on content, and would result in the

16 "substantial, additional burdens of . . . maintaining

17 supervision of the protestors . . . and generally providing

18 enough manpower in close proximity to the protestors to

19 quickly handle any protest that turned violent.” Citizens

20 for Peace in Space, 477 F.3d at 1223.

21 Plaintiffs argue that the no-demonstration zone was not

22 narrowly tailored because it was a complete ban on

23 demonstrating. But "[a] complete ban can be narrowly

24 tailored” if, as Defendants have shown, "each activity

18

1 within the proscription's scope is an appropriately targeted

2 evil.” Frisby, 487 U.S. at 485.

3 Finally, Plaintiffs contend that justifications based

4 on security and congestion are premised on large numbers of

5 protesters whereas Plaintiffs are just two people standing

6 out of the way. We disagree. The policy "should not be

7 measured by the disorder that would result from granting an

8 exemption solely to [Plaintiffs]” because if these two

9 plaintiffs were allowed a dispensation, "so too must other

10 groups,” which would then create "a much larger threat to

11 the State's interest in crowd control” and security. See

12 Int'l Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S.

13 672, 685 (1992). Plaintiffs' approach would also vest line14

level officers with power and discretion to determine when

15 the number of protesters exceeds some unspecified

16 permissible number, whether to aggregate small groups of

17 protesters who may not agree, and to decide which group came

18 first and should be allowed to stay while others must leave.

19 In short, the NYPD's small no-demonstration zone on a

20 two-block strip of Seventh Avenue was narrowly tailored to

21 address the threats to sidewalk congestion and security

22 created by an event the size and spectacle of a national

23 convention in midtown Manhattan.

24

19

1 B

2 It remains to decide whether the regulation "leave[s]

3 open ample alternative channels for communication of the

4 information.” Ward, 491 U.S. at 791 (internal quotation

5 mark omitted).

6 Although an alternative channel for communication must

7 be available, it is clear that "[t]he First Amendment

8 . . . does not guarantee [protesters] access to every or

9 even the best channels or locations for their expression.”

10 Carew-Reid v. Metro. Transp. Auth., 903 F.2d 914, 919 (2d

11 Cir. 1990). "The requirement that 'ample alternative

12 channels' exist does not imply that alternative channels

13 must be perfect substitutes for those channels denied to

14 plaintiffs by the regulation at hand; indeed, were we to

15 interpret the requirement in this way, no alternative

16 channels could ever be deemed 'ample.'” Mastrovincenzo, 435

17 F.3d at 101; see also Irish Lesbian & Gay Org. v. Giuliani,

18 918 F. Supp. 732, 744 (S.D.N.Y. 1996) ("Whether ample

19 alternatives are available does not depend on the preference

20 of the speaker for one method or another.”). All that is

21 required is that an alternative channel be ample--i.e., an

22 "adequate” channel for communication. Deegan, 444 F.3d at

23 144.

24

20

1 The alternative channel for communication available for

2 demonstrations at the Convention was a demonstration zone

3 spanning the width of Eighth Avenue, starting at the

4 southwest corner of the Garden, one avenue from the primary

5 entrance to the Garden. The zone was equipped with a stage

6 and sound amplification equipment, which all the protesters

7 (including Plaintiffs) were free to use.

8 In this Circuit, an alternative channel is adequate and

9 therefore ample if it is within "close proximity” to the

10 intended audience. United for Peace & Justice, 323 F.3d at

11 177; see Concerned Jewish Youth, 621 F.2d at 472-74, 476-77.

12 In United for Peace & Justice, the city denied a permit to

13 march past the United Nations headquarters and instead

14 granted a permit for a stationary protest at a nearby park--

15 on the other side of a major avenue, and two blocks north of

16 the entrance to the United Nations. 323 F.3d at 177; see

17 also United for Peace & Justice v. City of New York, 243 F.

18 Supp. 2d 19, 21, 29 (S.D.N.Y. 2003), aff'd 323 F.3d 175 (2d

19 Cir. 2003). Because the protesters were permitted to

20 demonstrate in "close proximity to the United Nations,” the

21 restriction on their march comported with the First

22 Amendment. United for Peace & Justice, 323 F.3d at 177; see

23 also Concerned Jewish Youth, 621 F.2d at 472-74, 476-77

24 (upholding a restriction that prevented protesters from

21

1 marching in front of the Russian Mission and instead

2 permitted twelve of them to protest in a small area down the

3 street because it provided an ample alternative channel for

4 communication).

5 Plaintiffs' chief argument on appeal is that the

6 demonstration zone was inadequate because it was not within

7 "sight and sound” of the intended audience, which they

8 identify as the delegates. Although this may be a relevant

9 consideration in some instances, none of the cases cited by

10 Plaintiffs establishes "sight and sound” as a constitutional

11 requirement. In each, the protester was within sight and

12 sound of the intended audience, so there was no occasion to

13 say whether sight and sound proximity is a required feature

14 of an adequate alternative channel. See, e.g., Marcavage v.

15 City of Chicago, 659 F.3d 626, 631 (7th Cir. 2011), Citizens

16 for Peace in Space, 477 F.3d at 1226; Menotti v. City of

17 Seattle, 409 F.3d 1113, 1138 (9th Cir. 2005); Bl(a)ck Tea

18 Soc'y, 378 F.3d at 14. Accordingly, none could support a

19 holding that sight and sound access is constitutionally

20 compelled.2

2 In Bay Area Peace Navy v. United States, 914 F.2d

1224 (9th Cir. 1990), the protesters were not within sight

and sound of the intended audience. This case is not

persuasive. It is a split decision from another circuit in

which the majority held that the speech restriction was not

narrowly tailored, so the discussion of "ample alternative

channels” was therefore dictum.

22

1 Plaintiffs argue that they should have been able to

2 protest at 32nd Street and Seventh Avenue--the primary point

3 of ingress and egress to Penn Station and the Garden. Many,

4 if not all, of the delegates may have entered that way. But

5 there are many ways to arrive at the Garden (car, bus,

6 train, foot), and there are different lines of approach

7 along the City's grid.3 Many delegates may have traveled to

8 the Garden by a route that brought them close to the

9 demonstration zone along Eighth Avenue. In short,

10 Plaintiffs could not have been seen and heard by most of the

11 delegates--let alone all of them--unless demonstrators were

12 allowed to congregate at the main entrance or were admitted

13 to the innards of the Garden, where they had no

14 constitutional right to be, Bl(a)ck Tea Soc'y, 378 F.3d at

15 14.

16 Whether an alternative channel is adequate cannot be

17 determined "in an objective vacuum, but instead” requires

18 "practical recognition [of] the facts.” Citizens for Peace

3 Plaintiffs contend that the entrance to the Garden at

32nd Street near Seventh Avenue was the only open entrance.

This argument is an overreading of the undisputed evidence:

"Because of the various closures to ingress and egress to

and from Penn Station and [the Garden], . . . the 32nd

Street approach to Penn Station and [the Garden] became the

primary point of ingress and egress to that venue for

thousands of pedestrians and commuters.” Joint App'x 87

(Decl. of (Retired) NYPD Chief Bruce Smokla, § 16) (emphasis

added). Implicit in the designation of one entrance as

"primary” is that there are one or more others.

23

1 in Space, 477 F.3d at 1226 (internal quotation marks

2 omitted). Here, the manifold risks ranged from pedestrian

3 gridlock to assassination. Under such circumstances, a

4 demonstration zone one avenue from the primary entrance to

5 the Garden was an ample alternative channel for protesters,

6 such as Plaintiffs.

7 * * *

8 Because the NYPD's limitation on speech around the

9 Convention was content neutral, was narrowly tailored to

10 achieve a substantial government interest, and allowed an

11 ample alternative channel of communication, it was a

12 permissible time, place, and manner restriction on speech.

13 Accordingly, the district court correctly dismissed

14 Plaintiffs' First Amendment claim.

15

16 III

17 Both Plaintiffs were arrested for disorderly conduct,

18 and Marcavage was also arrested for resisting arrest.

19 Plaintiffs contend that their arrest violated the Fourth

20 Amendment. Defendants counter that probable cause existed.

21 Plaintiffs were arrested without a warrant. Such an

22 arrest comports with the Fourth Amendment if the officer has

23 "probable cause to believe that a criminal offense has been

24 or is being committed.” Devenpeck v. Alford, 543 U.S. 146,

24

1 152 (2004). "Probable cause exists where the facts and

2 circumstances within . . . the officers' knowledge and of

3 which they had reasonably trustworthy information are

4 sufficient in themselves to warrant a man of reasonable

5 caution in the belief that an offense has been or is being

6 committed by the person to be arrested.” Dunaway v. New

7 York, 442 U.S. 200, 208 n.9 (1979) (internal quotation marks

8 and brackets omitted). A court assessing probable cause

9 must "examine the events leading up to the arrest, and then

10 decide whether these historical facts, viewed from the

11 standpoint of an objectively reasonable police officer,

12 amount to probable cause.” Maryland v. Pringle, 540 U.S.

13 366, 371 (2003) (internal quotation marks omitted).

14 Defendants contend there was probable cause to arrest

15 Plaintiffs for disorderly conduct,4 obstruction of

16 governmental administration (under New York Penal Law

17 § 195.055 and New York City Charter § 435(a)6), and failure

4 A person is guilty of disorderly conduct when,

with intent to cause public inconvenience,

annoyance or alarm, or recklessly creating a risk

thereof: . . . (5) He obstructs vehicular or

pedestrian traffic; or (6) He congregates with

other persons in a public place and refuses to

comply with a lawful order of the police to

disperse . . . .

N.Y. Penal Law § 240.20(5)-(6) (McKinney 2010).

5 A person is guilty of obstructing governmental

administration when he intentionally obstructs,

impairs or perverts the administration of law or

25

1 to comply with lawful orders to disperse. A Fourth

2 Amendment claim turns on whether probable cause existed to

3 arrest for any crime, not whether probable cause existed

4 with respect to each individual charge. See Devenpeck, 543

5 U.S. at 153-56. Accordingly, Defendants prevail if there

6 was probable cause to arrest Plaintiffs for any single

7 offense. See Jaegly v. Couch, 439 F.3d 149, 154 (2d Cir.

8 2006).

9 Probable cause supported the arrests for obstruction of

10 governmental administration. Plaintiffs rejected 17

11 directives (by three officers) to leave the no-demonstration

other governmental function or prevents or

attempts to prevent a public servant from

performing an official function, by means of

intimidation, physical force or interference, or

by means of any independently unlawful act . . . .

N.Y. Penal Law § 195.05 (McKinney 2010).

6 The police department . . . shall have the power

and it shall be their duty to preserve the public

peace, prevent crime, detect and arrest offenders,

suppress riots, mobs and insurrections, disperse

unlawful or dangerous assemblages and assemblages

which obstruct the free passage of public streets,

sidewalks, parks and places; . . . regulate,

direct, control and restrict the movement of

vehicular and pedestrian traffic for the

facilitation of traffic and the convenience of the

public as well as the proper protection of human

life and health; remove all nuisances in the

public streets, parks and places; . . . and for

these purposes to arrest all persons guilty of

violating any law or ordinance for the suppression

or punishment of crimes or offenses.

N.Y.C. Charter § 435(a).

26

1 zone, insisting on a constitutional right to demonstrate

2 where they stood. We need not decide whether Plaintiffs had

3 to obey an unconstitutional order, because we have held that

4 the order was constitutional.

5 Plaintiffs argue that there are genuine disputes as to

6 what occurred during their interaction with the officers

7 such that probable cause cannot be established on the

8 undisputed factual record. For example, Plaintiffs

9 characterize their behavior toward the officers as cordial,

10 and contend that they were compliant because they gravitated

11 in the general direction of the demonstration zone. But

12 Plaintiffs made an audio recording of their interaction with

13 the officers, and that recording dooms their assertion.

14 Although on summary judgment the evidence must be viewed in

15 the light most favorable to Plaintiffs as the non-moving

16 parties, when there is reliable objective evidence--such as

17 a recording--the evidence may speak for itself. See Scott

18 v. Harris, 550 U.S. 372, 378-81 (2007). Here, even viewed

19 in the light most favorable to Plaintiffs, the audio

20 recording shows indisputably that they were neither

21 courteous nor compliant. Plaintiffs were hostile and non22

compliant; in effect, they courted arrest. The officers

23 could have perceived that Plaintiffs were obstructing

24 governmental administration and failing to comply with a

27

1 police order to disperse. Since the police therefore had

2 probable cause to arrest, Plaintiffs' Fourth Amendment claim

3 was correctly dismissed.7



* * *



See: http://www.ca2.uscourts.gov/decisions/isysquery/c03700eb-f4fc-40dc-af8e-1d221a2d5b89/3/doc/10-4355_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/c03700eb-f4fc-40dc-af8e-1d221a2d5b89/3/hilite/

5 Plaintiffs’ motion, dkt. 31, to file a non-conforming

6 appendix is granted. The judgment of the district court is

7 affirmed.