COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
Index No. 04
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
UNITED FOR PEACE AND JUSTICE,
Plaintiff,
-against-
MICHAEL BLOOMBERG, Mayor, City of New York; ADRIAN BENEPE, Commissioner, City of New York; Department of Parks and Recreation; RAYMOND KELLY, Police Commissioner of the City of New York; and CITY OF NEW YORK, a municipal corporation of the State of New York,
Defendants.
---
Plaintiff, by way of its attorneys, alleges as follows:
NATURE OF THE CASE
1. This action seeks to enjoin the City of New York and its Department of Parks and Recreation from denying a permit to plaintiff for a rally in Central Park following a march on August 29, 2004. Plaintiff asserts that the denial violates Article I, § 8 of the New York State Constitution.
JURISDICTION AND VENUE
2. This Court has jurisdiction pursuant to CPLR § 3001. Venue is proper in New York County pursuant to CPLR § 504(3).
PARTIES
3. Plaintiff United for Peace and Justice (hereinafter "UFPJ") is a national coalition with more than 800 participating national organizations and local groups. Formed in the fall of 2002 when the Bush administration was preparing for its war against Iraq, the coalition has continued to organize educational and protest activities focused on U.S. policies. UFPJ organized the two largest antiwar demonstrations in recent history, the February 15th and March 22nd, 2003 demonstrations in New York City.
4. Defendant Michael Bloomberg is the Mayor of the City of New York.
5. Defendant Adrian Benepe is the Commissioner of the Department of Parks and Recreation (hereinafter "Parks Department") which is responsible for issuing permits for groups who wish to engage in expressive activity in the Parks of the City of New York.
6. Defendant Raymond Kelly is the Police Commissioner of the City of New York.
7. The City of New York is a municipal corporation of the State of New York.
FACTS
8. In the spring of 2003, UFPJ decided to hold a march and rally the day before the Republican National Convention in order to express the broad opposition to the Bush administration's foreign and domestic policies, including calling for an end to the U.S. war in Iraq. Affidavit of Leslie Cagan, P.3.
9. United for Peace and Justice sought to use Central Park as the site of its rally on August 29, 2004 for a variety of reasons. First, it is centrally located with adequate public transportation access. Second, it is the only place in Manhattan with large enough open spaces to accommodate a large rally. Third, the Great Lawn, as well as the North Meadow and the East Lawn, are ideal places for a large rally since, due to their shapes, all participants will be able to see and hear the speakers. Fourth, these are safe and comfortable environs, an important factor for a large rally, particularly in late August. Fifth, due to its central location, it allows UFPJ to bring its message to the people of New York. Finally, Central Park has historically been the location of major rallies and demonstrations. Affidavit of Leslie Cagan, P.6.
10. On or about June 4, 2003, UFPJ filed a permit application with the New York City Parks and Recreation Department for a rally with stage and sound for the Great Lawn in Central Park. UFPJ estimated the number of participants to be 250,000. Affidavit of Steven Ault, p.2 and Exhibit A.
11. On or about December 31, 2003, UFPJ received a letter from the Parks Department stating that it was not able to make a determination as to the application at that time. The department indicated that "the presence of the Republican Convention . . . creates public safety issues which various city agencies must be prepared to meet. ... At the present time, it is too soon to know how many events are being planned and how many permit application will have to be considered for any given date and time. Consequently, decisions are being reserved until a date closer to the convention so that realistic decisions can be made concerning the number and nature of competing event." Affidavit of Steven Ault, p.3 and Exhibit B thereto.
12. At a meeting with the police department in late March, 2004 regarding the logistics for the planned march preceding the rally, UFPJ was advised that it would not get the use of Central Park because, it was claimed, only 80,000 people could fit in the Great Lawn. Plaintiff expressed surprise since it understood that the Parks Department would be making that decision and UFPJ had yet to have a meeting with them. The police agreed that such a meeting should take place. Affidavit of Steven Ault, P.4.
13. It was not until April 19, 2004 that UFPJ was able to get a meeting with the Parks Department to discuss its planned event. Affidavit of Steven Ault, P.5.
14. On or about April 26, 2004, UFPJ received a letter from the Borough Commissioner denying its application. The stated reason for the denial were that the Great Lawn "cannot accommodate an event of the magnitude you plan." Recognizing that even larger rallies had been conducted on the Great Lawn, the Parks Department claimed that "[s]ince the Great Lawn was restored in 1996, no events of that size have been held there." The Parks Department claimed that an event attended by 250,000 people "would cause enormous damage to the lawn. The Great Lawn itself cannot hold more than 80,000 people and the overflow would be forced onto the adjacent landscape, causing damage to those areas of park as well." Affidavit of Steven Ault, P.6 and Exhibit C.
15. On or about May 6, 2004, UFPJ filed an appeal of the denial with the appropriate official at the Parks Department. Affidavit of Steven Ault, P.7 and Exhibit D.
16. On or about May 17, 2004, UFPJ received a letter from the General Counsel of the Parks Department upholding its original denial. Affidavit of Steven Ault, P.8 and Exhibit E.
17. After the Parks Department denied its application (as well as that of others) for a permit to use Central Park, UFPJ tried to continue to discuss the site and other locations with the police department. All of the other sites which plaintiff proposed were refused, with the police saying that the only place they would allow a rally was the West Side Highway. Affidavit of Leslie Cagan, P.7.
18. UFPJ was adamantly opposed to the West Side Highway because of its location at the extreme western edge of Manhattan, making transportation difficult, exposure to the afternoon sun without shade or shadow, lack of adequate facilities for the participants and the marginalization of the demonstration away from the population of the city. Affidavit of Leslie Cagan, P.8.
19. In addition, the West Side Highway is not conducive to a large rally such as that planned by plaintiff. There is a limited sight line and a treed median in the middle so that only a small percentage of the participants will actually be able to see the event. There are other technical problems as well. Affidavit of Virginia Giordano, PP.5-6.
20. After further discussions with the police, and the refusal of the Parks Department to talk to plaintiff, UFPJ concluded that this was a political issue and that the mayor was, in the end, making the decisions. Affidavit of Leslie Cagan, P. 9.
21. In light of the broad public support for the use of the park for its demonstration, plaintiff believed that it could convince the mayor to allow the use of Central Park. Not only did most of the major newspapers support plaintiff's right to use the park, a poll indicated that 75 of New Yorkers agreed that Central Park should be used as a venue for demonstrations during the Republican Convention. Affidavit of Leslie Cagan, P.10 and Exhibit A.
22. Throughout June and July, UFPJ attempted to communicate with the mayor, by letter and otherwise, in order to convince him to allow plaintiff to use the park or at least that he (or someone on his staff) sit down with plaintiff to discuss the matter. Affidavit of Leslie Cagan, P.11 and Exhibit B.
23. By letter dated June 18, 2004, UFPJ suggested to the City that they discuss the use of the North Meadow in Central Park as an alternative to the Great Lawn. Affidavit of Leslie Cagan, P.12 and Exhibit C.
24. By letter dated June 24, 2004, UFPJ was informed by Gail Donoghue, Special Counsel, City of New York Law Department, that the North Meadow "is not a suitable alternative location." Affidavit of Leslie Cagan, P.13 and Exhibit D.
25. UFPJ continued to meet with the police department to discuss details of the march and rally even as plaintiff kept insisting that Central Park was the right place for the rally not only from the perspective of the organizers but also from the perspective of the health and safety concerns of the police department.
26. UFPJ agreed to discuss the details of what it would take to make it possible to hold a rally on the West Side Highway. Affidavit of Leslie Cagan, P.15.
27. UFPJ and the Police Department have already agreed on the assembly point for the march and the means by which participants will assemble. UFPJ has also agreed on a march north on 7th Avenue from 14th Street to 34th Street. Affidavit of Leslie Cagan, P.15.
28. It became apparent to plaintiff that the West Side Highway was an even greater problem than previously thought, from a logistical, health and financial point of view. For example, plaintiff's Rally Producer has advised that it will cost approximately $631,000 to produce the rally on the West Side Highway compared to $227,500 for an event in Central Park (even using three locations). Affidavit of Leslie Cagan, ^ 16; Affidavit of Virginia Giordano, PP.6g,7.
29. Plaintiff cannot afford to pay $631,000 for the set up required for use of the West Side Highway. Therefore, plaintiff would have had to reduce the number of jumbotrons and loud speakers preventing a significant number of the rally participants from being able to see or hear. Affidavit of Leslie Cagan, P.17.
30. In addition, plaintiff has been advised by a board certified Emergency Physician of risks of heat induced emergencies that could arise from the combination of radiant pavement heat, lack of shade and inaccessible water supplies are high on a typical late August day in New York City if the West Side Highway site is used. Affidavit of Kenneth R. Weinberg, MD, PP.3,5.
31. Therefore, UFPJ filed another permit application with the Parks Department on August 10, 2004. Since Parks had indicated a concern with that the Great Lawn could only accommodate 80,000 (a fact which plaintiff does not accept), UFPJ proposed using three sites to accommodate the participants in the rally. Affidavit of Leslie Cagan, P.18 and Exhibit E.
32. By letter dated August 10, 2004, the General Counsel for the Parks Department advised UFPJ that the application was denied for the same reasons stated in the prior denial of April 26, 2004. Affidavit of Leslie Cagan, P.19 and Exhibit F.
33. Although the Parks Department told UFPJ that the reason for the denial was essentially the size of the crowd and the potential damage to the grass, on August 12, 2004, it was widely reported that the mayor said that the real reason for the denial was not the damage to the lawn, but rather that the location would make it difficult for emergency workers to respond in case of an accident. He was quoted as saying: "The issue is you just can't put that kind of crowd together where you can't make sure that ambulances can get in." Affidavit of Leslie Cagan, P.20.
34. It is the intention of UFPJ to have a safe rally in Central Park. Plaintiff knows that there is a need for lanes for emergency vehicles (as have been created for other large events on the Great Lawn) and would work closely with Parks personnel and the Police Department to ensure the safety of everyone. UFPJ will provide detailed information to rally participants and has set up teams of marshals to direct people within the park. UFPJ will organize teams of people to clean up during and after the rally and more than 1,000 people have already volunteered in that effort. In addition, UFPJ is prepared to discuss putting up a bond or securing insurance to cover costs incurred as a direct result of plaintiff's use of the park. Affidavit of Leslie Cagan, P.21.
FIRST CAUSE OF ACTION
35. Plaintiff repeats and realleges each of the allegations of paragraphs 1-34 as if fully set forth herein.
36. Central Park is a quintessential public forum. It has been used for many historic events, including large protest rallies. For example, in 1982 approximately 700,000 people attended an anti-nuclear rally in the Great Lawn.
37. The Great Lawn has also been used for large scale cultural events, including a Paul Simon concert which, according to the Parks Department itself, was attended by 750,000 people. See Parks Department web site, http://www.nycgovparks.org/sub_about/parks_history/historic_tour/history_reinventing_parks_recreation.html.
39. The Parks Department claims that it has not allowed large scale events since the lawn on the Great Lawn was restored in or about 1996. However, it has allowed large cultural events to take place since that time. For example, and most recently, it allowed a concert by the Dave Matthews Band with a crowd estimated by the Parks Department at 85,000. http://edition.cnn.com/2003/SHOWBIZ/Music/09/24/dave.matthews.
40. In addition, the Parks Department has regularly allowed performances by the opera and the New York Philharmonic to take place on the Great Lawn at which tens of thousands of people are in attendance.
41. The Parks Department has also allowed large scale cultural events on the North Meadow. For example, in 1997, the police department estimated attendance at a Garth Brooks concert at 250,000. Prep-Today in Music History, Broadcast News, August 7, 2001 available at 2001 WL 26182425.
42. The Parks Department has denied other permit applications for political demonstrations on the Great Lawn during the Republican National Convention even though those applications were for crowds under the stated capacity of 80,000.
43. By discriminating on the basis of content, in allowing cultural but not political events on the Great Lawn and North Meadow, defendants have violated plaintiff's rights guaranteed by Article I, § 8 of the Constitution of the State of New York.
SECOND CAUSE OF ACTION
44. Plaintiff repeats and realleges each of the allegations of paragraphs 1-43 as if fully set forth herein.
45. By refusing to allow political protest rallies at the Great Lawn and North Meadow, defendants have unlawfully withdrawn a public forum in violation of plaintiff's rights guaranteed by Article I, § 8 of the Constitution of the State of New York.
THIRD CAUSE OF ACTION
46. Plaintiff repeats and realleges each of the allegations of paragraphs 1-45 as if fully set forth herein.
47. The Parks Department now claims that the capacity of the Great Lawn has been reduced to 80,000. In light of the fact that the 750,000 people were accommodated on the Great Lawn for Paul Simon, it stains credibility to assert that the Great Lawn can now only accommodate 11% of its previous capacity.
48. In any event, plaintiff seeks to distribute any crowd in excess of the capacity of the Great Lawn to the North and East Meadows.
49. Defendants do not have a substantial legitimate interest in denying the use of the Great Lawn, North and East Meadows to plaintiff for the purposes expressed herein.
50. Defendants refusal to issue the permit applied for violates plaintiff's rights guaranteed by Article I, § 8 of the Constitution of the State of New York.
WHEREFORE, Plaintiff requests that this Court:
1. Declare that defendants' denial of the use of Central Park for a rally by plaintiff on August 29, 2004 violates plaintiff's rights guaranteed by Article I, § 8 of the Constitution of the State of New York;
2. Issue an Order prohibiting defendants from denying plaintiff the use of Central Park as requested in its permit application of August 10, 2004;
3. Grant such other and further relief that it deems just, proper and equitable.
Dated: New York, New York
August 18, 2004
