PEOPLE v. NAMER (2006)

In People v. Charity James, 7 Misc.3d 363, 793 N.Y.S.2d 871, decided January 18, 2005, this Court upheld the constitutionality of New York City's parade permit ordinance (Administrative Code § 10-110), under both the state and federal constitutions.   The defendants herein, move this court to reconsider that decision in light of the 6th Circuit's recent decision in American-Arab Anti-Discrimination Committee v. City of Dearborn, 418 F.3d 600, decided August 12, 2005.   After a comparative analysis of the two statutes at issue, this court concludes that the deficiencies present in the Dearborn ordinance do not appear in AC § 10-110.   Accordingly, this Court declines to reconsider its finding that the New York City parade statute comports with all of the constitutional safeguards required of parade permit schemes as set forth in the United States Supreme Court's decision in Thomas v. Chicago Park, 534 U.S. 316, 122 S.Ct. 775, 151 L.Ed.2d 783 (2002).

 As a threshold issue, this Court notes that it is bound by the United States Supreme Court's and New York State Court of Appeals' interpretations of the Federal Constitution.   However, the interpretation of a federal constitutional question by a lower federal court serves only as useful and persuasive authority for New York state courts and is not binding on them.   People v. Kin Kan, 78 N.Y.2d 54, 571 N.Y.S.2d 436, 574 N.E.2d 1042, citing New York Rapid Transit Corporation v. City of New York, 275 N.Y. 258, 9 N.E.2d 858, aff'd 303 U.S. 573, 58 S.Ct. 721, 82 L.Ed. 1024.

The defendants Matthew Namer and Daniel Terzvola were both arrested and charged with PL § 240.20(5) [Disorderly Conduct-obstruction of pedestrian/vehicular traffic] and AC § 10-110 [Parading Without a Permit] stemming from their alleged participation in a “Critical Mass” bike event that took place in Manhattan last spring.  “Critical Mass” is a monthly event where bicyclists spontaneously come together and ride through the public streets and thoroughfares of New York. As self-described on its web site:  “Critical Mass is not an organization, its an unorganized coincidence.   It's a movement ․ of bicycles, in the streets.”   The defendants argue that New York City's parade permitting scheme (AC § 10-110, as implemented by Title 38, Chapter 19 of the Rules of the City of New York) is unconstitutional on its face, particularly in light of the 6th Circuit's recent decision in American-Arab Anti-Discrimination Committee v. City of Dearborn, 418 F.3d 600 (decided August 12, 2005).   The City of New York, through the office of the Corporation Counsel has moved for leave to appear as amicus curiae and to submit a Memorandum of Law in support of the constitutionality of AC § 10-110.   The City is presently engaged in affirmative litigation seeking to enjoin the violation of the parade permit requirement by participants in the monthly Critical Mass rides.   Pursuant to CPLR §§ 1012 and 1013, leave to appear amicus curiae and to file submissions is hereby granted.

In pertinent part, AC § 10-110 reads as follows:  A procession, parade, or race shall be permitted upon any street or in any public place only after a written permit therefor has been obtained from the police commissioner.   Application for such a permit shall be made in writing, upon a suitable form prescribed and furnished by the department, not less than thirty-six hours previous to the forming or marching of such procession, parade or race.   The statute further provides that every person participating in any procession, parade or race, for which a permit has not been issued when required by this section, shall, upon conviction thereof, be punished by a fine of not more than twenty-five dollars, or by imprisonment for not exceeding ten days, or by both such fine and imprisonment.   Accordingly, a conviction for AC § 10-110 amounts to a violation and not a crime.

AC § 10-110 is implemented through and must be read in tandem with Title 38 Chapter 19 of the Rules of the City of New York.¹ Collectively, these statutes comprise New York City's parade permitting scheme.  38 RCNY § 19-01, entitled “Definitions of Disorderly Parade and Occasions of Extraordinary Public Interest”, makes specific reference to both AC § 10-110(a) and PL § 240.20(5) [Disorderly Conduct-obstructing vehicular or pedestrian traffic].  38 RCNY § 19-02 defines a parade or procession as “any march, motorcade, caravan, promenade, foot or bicycle race, or similar event of any kind, upon any street or roadway”.   Admittedly, the statute does not quantify the requisite number of persons necessary to constitute a parade.   Nonetheless, this court has previously held that the issue of whether or not an event qualifies as a parade or procession within the meaning of the statute is reserved for the trier of fact and cannot be determined within the context of a facial sufficiency motion.   See People v. Charity James, supra.  38 RCNY § 19-03 sets forth the application procedure for a parade permit.  38 RCNY § 19-04 sets forth the procedure that the Police Commissioner must follow when an application for a parade permit is either approved or disapproved.

In People v. Charity James, 7 Misc.3d 363, 793 N.Y.S.2d 871 (2005) this court rejected a constitutional challenge to AC § 10-110 that was predicated upon the following claims:  (1) the provision was a prior restraint on protected speech, (2) the Police Commissioner had too much discretion in granting permits and (3) the judicial review was inadequate.   This Court found the statute to be “content neutral” meaning that the ordinance does not seek to restrict the issue, message or subject matter content of the proposed parade.   This Court further held that a content neutral ordinance will satisfy First Amendment concerns if it specifies the reasons for which a permit can be denied, requires explanations for denial, and places time limits on the processing of permit applications in accordance with the United States Supreme Court ruling in Thomas v. Chicago Park, 534 U.S. 316, 122 S.Ct. 775, 151 L.Ed.2d 783 (2002).   This Court concluded that when AC § 10-110 is read in conjunction with Title 38, Chapter 19 of the Rules of the City of New York, all of the Thomas v. Chicago Park criteria are met.

 The defendant herein now urges this court to reconsider its ruling in Charity James in light of the recent 6th Circuit decision in American-Arab Anti-Discrimination Committee v. City of Dearborn, 418 F.3d 600 (decided August 12, 2005).   In that case, the 6th Circuit reversed a judgment of the United States District Court for the Eastern District of Michigan in favor of the defendant city of Dearborn, Michigan which had found a municipal ordinance (Dearborn, Mich., Code §§ 17-26 to 17-32) that regulates parades on the city streets and sidewalks to be constitutional.²

We turn now to a comparative analysis of those portions of the Dearborn ordinance found to be unconstitutional with their counterpart provisions in the New York City parade permitting scheme. We will begin by noting that both ordinances were deemed “content neutral” by the litigating parties and that the constitutional challenges were predicated upon other grounds.

The Dearborn ordinance required any and all speakers to apply for a permit 30 days in advance.   In declaring this provision of the ordinance unconstitutional, the 6th Circuit found that the defendant city failed to demonstrate that they needed thirty days to prepare for a parade or special event.   In fact the court specifically cited the New York City ordinance in its examples of municipalities that require substantially less time.   See American-Arab Anti-Discrimination Committee v. City of Dearborn, 418 F.3d 600, at 606, footnote 2. 38 RCNY § 19-04(iv) provides that applications may be filed as little as thirty six hours before a special event and § 19-04(v) further provides that applications may be filed less than thirty six hours before, where exigent circumstances exist.   Moreover, the 6th Circuit described the thirty day notice provision as the salient issue before it, evincing the importance of the thirty day notice provision as a factor in reaching its decision.   Lastly, while the city of Dearborn argued that it did regularly allow exemptions to the thirty day notice requirement, the court noted that there was no waiver provision written into the statute.

The second provision of the Dearborn statute found to be unconstitutional was section entitled “Definitions” which read as follows:  For the purpose of this ordinance, the term “special event” shall be deemed to include any walkathon, bikeathon, or jogging group or other organized group having a common purpose or goal, proceeding along a public street or public right-of-way in the City of Dearborn.   The 6th circuit found this provision overly broad because virtually any group of two or more persons walking on a public right-of-way with a common purpose or goal would presumably be required to possess a permit under the ordinance.   However, the court focused on the wording an organized group having a common purpose or goal in reaching this finding.   The court noted that this language could apply to virtually any group of people traveling on the public rights-of-way, and as such was overly broad.   The 6th Circuit concluded that this section of the Ordinance was unconstitutional on its face.  American-Arab Anti-Discrimination Committee v. City of Dearborn, supra at 608.   However, the court noted when an ordinance gives examples of organized groups with common purposes and goals, such as walkathons and bikeathons, “the inclusion of examples further alleviates vagueness problems and narrows the discretion of city officials”, 418 F.3d 600, at 609.

The New York ordinance includes specific examples of the type of events requiring a permit and does not contain any ambiguous terminology which could be applicable to small innocuous groups.  38 RCNY § 19-02(a) defines a parade or procession as any march, motorcade caravan, promenade, foot or bicycle race or similar event of any kind, upon any public street or roadway.   The language bicycle race or similar event clearly encompasses “ Critical Mass”. While the term parade is not quantified, 38 RCNY § 19-02(d) states that a “Demonstration” shall mean a group activity including but not limited to, a meeting, assembly protest rally or vigil, moving or otherwise, which involves the expression of view or grievances, involving more than 20 people.   While the Rules quantify a “demonstration,” it is noteworthy that the word demonstration does not appear anywhere else in either Title 38 Chapter 19 of the Rules of the City of New York or in AC § 10-110.   The Rules' use of the term demonstration, with its concomitant requirement that it consist of more than 20 persons, evinces an intent that demonstration be used interchangeably with the words parade or procession or any of the other terms set forth in § 19-02(a) including a bicycle race.   This is further supported by the fact that demonstration is a synonym for parade.³  Accordingly, it could be argued that the requirement that a “demonstration” consist of twenty or more persons was intended to apply to parades and bicycle events as well.

Generally, in the construction of statutes the intention of the Legislature (in this case the city agencies responsible for the enactment of the Administrative Code and the Rules of the City of New York) is first to be sought from a literal reading of the act itself or of all of the statutes relating to the same general subject.  McKinney's Statutes, Chapter 6, Construction and Interpretation, § 92.   The legislative intent in the promulgation of 38 RCNY 19 is set forth in a footnote to the Chapter's title, “Rules for Processions and Parades”.   In sum and substance, this note sets forth that the rule was promulgated to authorize the New York City Police Department to regulate the movement of vehicular and pedestrian traffic and that proper regulation of parades and processions is essential to protecting the health welfare and safety of the inhabitants of New York City. The footnote states “These procedures are intended to provide a framework for the Police Department to assure the safety and convenience of the public while allowing the citizens to exercise their rights to assemble and march on public streets.”   This Court finds that the enactment of AC § 10-110 and the promulgation of 38 RCNY 19 were clearly intended to encompass large events such as Critical Mass bike rides, whether they be spontaneous or organized.   Such regulation is constitutionally permissible since it has long been recognized that requiring permits for marches or parades proceeding on public rights of way constitutes a legitimate exercise of governmental authority.  Cox v. New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049.   We conclude that unlike the Dearborn ordinance, the's definitions of a parade found in § 19-02(a) provide sufficient protection against small groups of pedestrians or cyclists being targeted.   Lastly, it should be noted that this Court has previously held that the question of whether or not an event qualifies as a parade is an issue for the trier of fact.

The last infirmity that the 6th Circuit found in the Dearborn ordinance was the strict liability provision.   The court noted that since the ordinance contained no mens rea requirement, an individual could be held liable for a criminal offense whether or not he knew that no permit had been obtained for the parade or event.   The penalty for violation of the Dearborn ordinance was a fine not exceeding the sum of $500 or imprisonment not exceeding ninety days or both.   In New York State, a violation of the Dearborn statute would amount to a misdemeanor.   Unlike the Dearborn ordinance, the penalty for a violation of AC § 10-110 is a fine of not more than twenty-five dollars, or imprisonment for not exceeding ten days or both.   Black's Law Dictionary defines mens rea as criminal intent or recklessness.   AC § 10-110 is a violation, not a crime and therefore the term mens rea becomes inapplicable to this statute.

In conclusion, this Court reaffirms its finding that New York City's parade permitting scheme (AC § 10-110 as implemented through 38 RCNY 19) meets all of the requirements to pass constitutional muster on both the state and federal levels.   Accordingly, this court denies the defendant's request to reconsider its holding in People v. Charity James, 7 Misc.3d 363, 793 N.Y.S.2d 871.

This shall constitute the final decision and order of this Court.

FOOTNOTES

1.   This rule is promulgated pursuant to the authority of the Police Commissioner under §§ 389, 435(a), 1043 of the New York City Charter.

2.   It should be noted that although the 6th Circuit reversed the district court's ruling in all other respects, the court affirmed the ruling that two sections of the ordinance were not void for vagueness.

3.   Roget's New Millennium Thesaurus, First Edition (v. 1.1.1).

MELISSA C. JACKSON, J.