Received for placement on the Internet (9/5/98):
Below if the text of the latest lawsuit by artists against Mayor Giuliani. The following is the legal complaint filed in Federal Court against Mayor Giuliani and the City of New York in Lederman et al v Giuliani. It was originally filed on 3/20/98 and amended on 6/8/98 to include the latest arrests to that date. It details the charges of constitutional violations, false arrest, selective enforcement and harassment against artists by the Giuliani Administration and challenges the constitutionality of the artist permit system recently set up by the New York City Department of Parks.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
ROBERT LEDERMAN, KNUT MASCO, JACK :
NESBITT, WEI ZHANG and A.R.T.I.S.T., :
:
Plaintiffs, : 98 Civ. 2024 (LMM)
:
-against- :
:
RUDOLPH GIULIANI, Mayor of the City :
of New York, in his individual and :
official capacities, CITY OF NEW YORK, :
CENTRAL PARK CONSERVANCY, :
NEW YORK CITY POLICE DEPARTMENT, :
HOWARD SAFIR, Commissioner of the New : AMENDED COMPLAINT
York City Police Department, in his :
individual and official capacities, :
NEW YORK CITY DEPARTMENT OF PARKS AND :
RECREATION, HENRY J. STERN, Commissioner:
of the Department of Parks and :
Recreation, in his individual and :
official capacities, ALEX BRASH, Chief :
of Enforcement for the Department of :
Parks and Recreation, in his individual :
and official capacities, OFFICE OF :
COURT ADMINISTRATION OF THE CITY OF :
NEW YORK, and OFFICER HAYNES, :
OFFICER E. RYAN, SERGEANT BROWN and :
SERGEANT ROSADO, in their individual : Jury Trial Demanded
and official capacities, and John Doe :
Nos. 1-10, :
:
Defendants. :
:
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Plaintiffs, Robert Lederman (hereinafter "Lederman"), Knut Masco (hereinafter "Masco"), Jack Nesbitt (hereinafter "Nesbitt"), Wei Zhang (hereinafter "Zhang") and A.R.T.I.S.T. (hereinafter "A.R.T.I.S.T.") (Lederman, Masco, Nesbitt, Zhang and A.R.T.I.S.T. are sometimes collectively referred to as "Plaintiffs"), by their attorneys, Nesenoff & Miltenberg, LLP, as and for their Amended Complaint, respectfully allege as follows:
STATEMENT OF THE CASE
1. This is a proceeding brought by individual artists engaged in painting, photography and sculpture and an artists' advocacy organization, "A.R.T.I.S.T.," to enforce their rights pursuant to the First and Fourteenth Amendments of the Constitution of the United States, Article I, §§ 8 and 11, of the New York State Constitution, and federal and state civil rights laws. Plaintiffs seek declaratory and injunctive relief and compensatory and punitive damages. In addition Lederman seeks redress for being subjected to assault, wrongful arrest, wrongful prosecution, intimidation, censorship and other wrongful acts on the part of the defendants.
2. To provide background to the instant action, the Mayor of the City of New York, along with certain city officials and law enforcement officials, in an effort to prohibit visual artists from displaying or selling works of their own creation on city sidewalks, sought to enforce a largely unnoticed, long dormant city regulation, General Vendors Law, §§ 20-452 et seq., of the Administrative Code of the City of New York (the "G.V.L."), which barred visual artists from exhibiting, selling or offering their work for sale in public places in New York City without first obtaining a general vendors' license. Plaintiffs and other artists were arrested on several occasions for displaying their artwork on the streets of the City of New York without licenses.
3. In two previous actions brought by those artists, including some of the Plaintiffs, entitled Bery v. City of New York, 97_F.3d 689 (2d Cir. 1996), cert. denied, ___ U.S. ___, 117_S. Ct. 2408, 138 L. Ed. 2d 174 (1997) ("Bery"), the United States Court of Appeals, Second Circuit, declared that the licensing requirement of the G.V.L. was an unconstitutional infringement of the Bery plaintiffs' First Amendment rights to display and sell their works of art on city streets. The United States Supreme Court denied the application of defendant City of New York (the "City") for a Writ of Certiorari, thereby establishing Bery as legal authority. In light of Bery, Plaintiffs have been displaying and selling artwork of their own creation on the sidewalks of New York City. Nevertheless, no sooner was Certiorari denied than City officials began to search for and invent new methods to circumvent and disregard Bery. Artists such as Plaintiffs began to be arrested for violations of other provisions of the G.V.L., such as §_20-465, which prohibits vending in certain locations. Defendants also decided to enforce parks regulations, 56 R.C.N.Y. §§ 1-03(b)(6), and 1-05(b), prohibit to require artists to obtain permits to display and offer their art for sale on the sidewalks in front of the Metropolitan Museum of Art (the "Met"), an area under the jurisdiction of defendant New York City Department of Parks and Recreation (the "Parks Department").
4. Traditionally, the sidewalks in front of the Met is perhaps the most vital New York City location for artists such as Plaintiffs to display their artwork. On the pretense of alleviating pedestrian congestion in front of the Met, City officials have determined that the Parks Department limit the number of artists who may display in front of the Met and require those artists to obtain permits to display in front of the Met. Plaintiffs have again been arrested, jailed, threatened with arrest, ticketed, assaulted, falsely arrested and imprisoned, and harassed, and their artwork has been confiscated and destroyed by law enforcement officials merely for displaying or attempting to display and sell their artistic creations on the sidewalks in front of the Met without a permit, in violation of 56 R.C.N.Y. §§_1-03(b)(6) and 1-05(b).
5. To the extent 56 R.C.N.Y. §§_1-03(b)(6) and 1-05(b) prohibit the Plaintiffs from displaying and selling their original artwork in areas under the jurisdiction of the Parks Department without a permit, such provisions are clearly unconstitutional under Bery. Additionally, in attempting to achieve its asserted purpose of keeping public park areas clear of excess congestion, the permit requirement is not so narrowly tailored as to avoid infringing on Plaintiffs' First Amendment rights.
6. In addition, 56 R.C.N.Y. §§ 1-03(b)(6) and § 1-05(b) are not enforced against vendors of printed matter, located in front of the Met or elsewhere on Parks Department property, while are being enforced against Plaintiffs. G.V.L. § 20-465(j), the ordinance that places authority over vending permits to the Parks Department for vending on Parks Department property, is expressly inapplicable to book vendors. Accordingly, the enforcement of 56 R.C.N.Y. §§ 1-03(b)(6) and 1-05(b) as against art vendors but not book vendors violates Plaintiffs' rights to the Equal Protection under the United States Constitution.
7. Plaintiffs therefore seek a judgment declaring the permit provisions of these Parks regulations unconstitutional both facially and as applied, permanently enjoining defendants from enforcing such provisions as to prevent further irreparable injuries to the Plaintiffs' constitutional rights, and awarding them damages by reason of the enforcement of such provisions and of the various violations of the individual Plaintiffs' civil rights as described herein.
8. This action also seeks declaratory and injunctive relief and damages with respect to Lederman's arrest on numerous occasions for writing, in chalk, political messages on public sidewalks, and being charged with violating Administrative Code § 10-117 (Defacement of Property) and § 19-138(a) (Defacement of Street).
9. Section 10-117 makes it illegal to write, paint or draw any inscription, figure or mark of any type on any public or private building or other structure or any other real or personal property owned or maintained by the City of New York. Section 19-138 makes it illegal to break or otherwise injure any street, or to deface any street by painting, printing or writing thereon. Such regulations as applied to the medium of chalk are irrational and overbroad in their reach, and therefore violative of Lederman's rights under the Fifth and Fourteen Amendments of the Constitution of the United States and Article I, §§ 8 and 11, of the New York State Constitution and of Plaintiffs' federal and civil rights statements. Moreover, these statutes are being selectively enforced against Lederman based on the content of the messages he has inscribed with chalk. In effect, Defendants not only seek to unlawfully restrict Plaintiffs' venue, but to censor Plaintiffs' message.
10. In response to this deprivation of his rights, Lederman seeks a judgment declaring that the defacement statutes are unconstitutional both facially and as applied, permanently enjoining Defendants from enforcing these provisions against himself and others similarly situated, as to prevent further irreparable injuries, and awarding him damages for his compensable injuries.
JURISDICTION AND VENUE
11. This Court has jurisdiction over the Plaintiffs' claims pursuant to 28 U.S.C. §§ 1331 (federal question), 1343 (civil rights), 1367 (supplemental), 2201 (declaratory judgment), and 2202 (same), and 42 U.S.C. §§ 1983 and 1988 (civil rights).
12. Venue is founded on 28 U.S.C. § 1391(b) and (c).
THE PARTIES
13. Lederman is an artist who maintains an address at xxxxxxxxxxxxxxx. Lederman creates paintings and limited edition prints. He has been showing and selling his works on the sidewalks of New York City since 1962 and currently does so four or five times a week. Lederman relies upon the income he earns from the sale of his art work on the streets as his only means of support.
14. Masco is an artist who maintains an address at xxxxxxxxxxxxxxxxxxx. He is an environmental artist whose works consist mostly of paintings. He has been selling these works on the sidewalks of New York City twice a week since the summer of 1993. These sales constitute Masco's only source of income.
15. Nesbitt is an artist who maintains an address at xxxxxxxxxxxxxxxx. Nesbitt has been earning an income from the sale of his art work on the streets of the city for several years.
16. Zhang is an artist who maintains an address at xxxxxxxxxxxxxxxxx. Zhang has been earning an income from the sale of his art work on the streets of the city for several years.
17. A.R.T.I.S.T. is a not-for-profit organization formed by Plaintiffs and other artists in New York City which is dedicated to pursuing freedom of artistic expression and prevention of cultural censorship.
18. Defendant Rudolph Giuliani ("Giuliani") is the Mayor of the City of New York.
19. The City is a municipal corporation duly incorporated under the laws of the State of New York. 20. Defendant Central Park Conservancy (the "Conservancy") is a not-for-profit organization with a business address at 14 East 60th Street, 8th floor, New York, New York 10021. Upon information and belief, the Conservancy has an oversight function with respect to Central Park and its environs under Parks Department jurisdiction.
21. Defendant the New York City Police Department (the "Police Department") is an agency of the City with a business address at One Police Plaza, New York, New York 10038.
22. Defendant Howard Safir ("Safir") is the Commissioner of the Police Department.
23. The Parks Department is an agency of the City maintaining an address at The Arsenal, Central Park, 830 Fifth Avenue, New York, New York 10021.
24. Defendant Henry J. Stern ("Stern") is the Commissioner of the Parks Department.
25. Defendant Alex Brash ("Brash") is the Chief Enforcement Officer for the Parks Department.
26. Defendant the Office of Court Administration ("OCA") is an agency of the State of New York maintaining an address at 25_Beaver Street, New York, New York 10004.
27. Sergeant Brown, badge number 552, and Officer Haynes, badge number 3139, are Officers of the Criminal Court of the City of New York and, at all times herein, have been assigned to the Criminal Court of the City of New York at 346 Broadway, New York, New York.
28. Defendants Sergeant Rosado and Sergeant Ryan are all agents of the Police Department.
29. Defendants John Doe Nos. 1 through 10 are person(s) presently unknown to Plaintiffs but who may have abridged Plaintiffs' rights.
FACTUAL BACKGROUND
30. 56 R.C.N.Y. ("Reg.") § 1-03(b)(6) states as follows:
No person shall conduct any activity for which a permit is required unless (a) such permit has been issued; (b) all terms and conditions of such permit have been or are being complied with; and (c) the permit is kept on hand at the event, so as to be available for inspection by Police or Department employees.
31. Reg. § 1-05(b) specifies "vending" as an activity for which a permit is required, as follows:
Unlawful vending. No person in any park, or street adjacent
to or abutting a park (including all public sidewalks of such
abutting streets) shall sell, offer for sale, hire, lease or let
anything whatsoever, except under and within the terms of a permit,
or except as otherwise provided by law.
32. Reg. §§ 1-03(b)(6) and 1-05(b) apply to all vendors regardless of whether they are selling trinkets, souvenirs or fine artwork of their own creation, except they do not apply to vendors of written matter such as books, pamphlets and newspapers.
33. The penalty for violating these provisions is severe. Under Reg. § 1-07(a), violation of these rules is a misdemeanor punishable by a maximum of 90 days imprisonment and a $1,000 fine. Furthermore, as a matter of course, the police confiscate and usually destroy the artwork of any artist arrested for violating Reg. §_1-03(b)(6) or 1-05(b).
34. The Parks Department's authority to issue permits for "general vending" derives from G.V.L. §20-465(j). That provision prohibits general vending "unless written authorization therefor has been obtained" from the Parks Department. However, G.V.L. § 20-473 specifically excepts from G.V.L. §20-465(j) "[g]eneral vendors who exclusively vend written matter."
35. As construed by the Mayor, the Police Department and the Parks Department, Reg. §§_1-03(b)(6) and 1-05(b) require artists such as Plaintiffs to apply for permits to display and sell their paintings, drawings, photographs, sculpture and other artwork on the sidewalk facing the Met.
36. Upon information and belief, the Parks Department has made available a total of 24 permits to display and sell artworks in front of the Met. The permits are allegedly distributed under a lottery system.
37. Upon information and belief, the duration of each permit to display and sell art in front of the Met is one month, and the permit is non-transferable. Thus, if a permit holder becomes ill or goes away for a period during that month, or only uses the awarded spot for one or two days per week, no one else may display in that spot, and it must remain vacant. Therefore, on any given day of the month fewer than the maximum 24 artists will be displaying art in front of the Met, yet none of the perhaps hundreds more who desire to display there will be permitted to do so. The permit system is therefore arbitrary and patently unfair in its application.
38. The limitation of artists' access to City streets has been an integral part of the Giuliani Administration's so-called "Quality of Life" campaign, which is intended to limit the expression of views and activities that fall outside the so-called mainstream views, particularly expression and activities that take place on the streets of New York. Having had its unlawful attempts to subject artists to the same treatment as the general street vendors, squeegee persons and the homeless being dealt a crushing blow by Bery, the Giuliani Administration conjured up moribund, rarely-enforced regulations in the name of enhancing New Yorkers' "Quality of Life." Almost from the moment Bery was announced, the Defendants have plotted ways to continue to harass artists without violating Bery. For instance, the Police Department, at the direction of the Giuliani Administration has engaged in selective enforcement of various sections of the G.V.L., other than the one struck down in Bery, against certain artists, including Plaintiffs.
39. That policy is reflected in an official City Memorandum, dated October 16, 1997, Anne S. Eristoff wrote to all Administrative Law Judges:
Please note the Bery decision deals only with the scope of the
general vending laws under the Administrative Code. It does not
speak to the Parks Rules, or the requirement pursuant to those
Rules to have a Parks Permit. . . In other words, the only available
citation would be to a violation of Parks rules, the A[dministrative]
Code cases.
The NYPD has been given instructions along the above lines regarding issuance of violations.
40. Despite Bery's clear statement that artists have a constitutionally protected right to display and sell their artwork on the streets of the City, unhindered by stifling regulatory tactics such as vending licenses, Defendants insist on their right to administer Reg. §§_1-03(b)(6) and 1-05(b).
41. The Giuliani Administration gave notice that Regs. §§ 1-03(b)(6) and 1-05(b), which had never been enforced around the Met, would be enforced effective March 1, 1998, for the stated reason of alleviating sidewalk congestion in front of the Met caused by construction occurring there.
42. Upon information and belief, the construction is not occurring in the vicinity of the area where artists such as Plaintiffs traditionally display their work, so limiting the number of street artists will not alleviate construction engendered congestion, if there is such congestion.
43. Upon information and belief, no one, least of all the Met itself, complained that street artists' display of their art in front of the Met was causing congestion on the sidewalks, and no one requested any of the Defendants to take action to alleviate sidewalk congestion.
44. The Met "made known to the Parks Department that [it] would prefer that this new system not be introduced."
45. Reducing sidewalk congestion in front of the Met was not the real reason for the City's enforcement of the parks permit requirement for displaying and offering for sale artwork in front of the Met, but was contrived by the Giuliani Administration. The Administration selected this as the reason because Bery had recognized a significant government interest in keeping public sidewalks safe and uncongested, and Giuliani believed that the permit rational would withstand a constitutional challenge.
46. Mayor Giuliani's reason for enforcing the permit requirement against street artists is to even the score for the artists' victory over Mayor Giuliani in Bery.
47. In response to the permit system and the ongoing harassment by the Giuliani Administration, Plaintiffs have undertaken a daily protest in front of the Met during which they display their art.
48. In exercising their First Amendment rights to display their original artwork in front of the Met, Plaintiffs have been subject to arrest, intimidation, harassment and censorship of their message, and have had their original artwork confiscated and destroyed by the Police Department.
i. March 1, 1998 Lederman Unauthorized Vending Summonses
49. On March 1, 1998, Lederman was issued two summonses for selling a picture in Central Park at 81st Street and 5th Avenue, New York, New York, in front of the Met, in violation of Regs. §§ 1-103 and 1-05(b).
50. The arresting police officers confiscated the picture that Lederman was attempting to display.
51. Despite demand by Lederman for the return of his artwork,
the Police have refused to return same.
ii. March 1, 1998 Masco Unauthorized Vending Summonses
52. On March 1, 1998, Masco was issued a summons for selling art at 81st Street and 5th Avenue, in front of the Met, in violation of Regs. §§ 1-103 and 1-05(b).
53. The arresting police officers confiscated the artwork Masco was attempting to display.
54. Despite demand for the return of his artwork, the Police have refused to return same.
55. Later on March 1, 1998, Masco was issued a second summons for selling artwork at 81st Street and 5th Avenue, in front of the Met, in violation of Regs. §§ 1-03 and 1-05(b).
56. The arresting police officers again confiscated the artwork Masco was attempting to sell.
57. Again, despite demand for the return of his artwork, the Police have refused to return same.
iii. March 1, 1998 Nesbitt Unauthorized Vending Summons
58. On March 1, 1998, Nesbitt was issued Summons No. E 087 357 115 for displaying artwork at 81st Street and 5th Avenue, in front of the Met, in violation of Reg. § 1-05(b).
iv. March 1, 1998 Zhang Unauthorized Vending Summons
59. On March 1, 1998, Zhang was issued Summons No. E_087 357 106 for displaying artwork at 81st Street and 5th Avenue, in front of the Met, in violation of Reg. § 1-05(b).
_v. March 4, 1998 Zhang Unauthorized Vending Summons
60. On March 4, 1998, Zhang was issued Summons No. 215776565-3 for displaying artwork at 81st Street and 5th Avenue, in front of the Met, in violation of Reg. § 1-05(b).
vi. March 10, 1998 Nesbitt Unauthorized Vending Summons
61. On March 10, 1998, Nesbitt was issued a Summons No. 203 555534-6 115 for displaying artwork at 81st Street and 5th Avenue, in front of the Met, in violation of Reg. § 1-05(b).
vii. March 10, 1998 Lederman Unauthorized Vending Summons
62. On March 10, 1998, Lederman was issued a summons #203555533-4 for Unlawful Vending in front of the Met, in violation of Reg. § 1-05(b).
63. The arresting police officers confiscated the pieces of art Lederman was displaying.
64. Despite Lederman's demand for the return of the artwork, the Police have refused to return same.
viii. March 13, 1998 Nesbitt Unauthorized Vending Summons
65. On March 13, 1998, Nesbitt was issued a Summons No. 222550182-8 for displaying artwork at 81st Street and 5th Avenue, in front of the Met, in violation of Reg. § 1-05(b).
ix. March 13, 1998 Lederman Unauthorized Vending Arrest
66. On March 13, 1998, Lederman was in front of the Met with posters of art, books, framed photographs of his arrests and a pile of leaflets discussing the Parks Department's persecution of street artists.
67. Thomas Rozinski, Esq., legal counsel for the Parks Department, passed by Lederman.
68. Approximately one hour later, Chief Brash arrived and personally picked up Lederman's art, books, photographs, and leaflets and dropped them in a black garbage bag, and directed a Parks Department officer to issue summons # 215776565-7 to Lederman for illegal vending.
69. Despite Lederman's demand for the return of the artwork, the Police have refused to return same.
x. March 14, 1998 Masco Arrest and Confiscation
70. On March 14, 1998, Masco was issued a summons in for "unlawful vending" of artwork at 81st Street and 5th Avenue, in front of the Met, in violation of Reg. § 1-05(b).
71. After being issued the summons, Masco wrote in chalk, on the sidewalk, the word "Police," at which time police officers arrested Masco and placed him in handcuffs.
72. Masco was taken to the police station and issued a summons for "defacement of parks department property" in violation of Reg. § 1-04(a).
73. Masco returned to the Met and attempted to display or sell another piece of artwork.
74. Masco was issued another summons by the police for "unauthorized vending," in violation of Reg. § 1-05(b).
75. The arresting police officers confiscated the artwork Masco was attempting to display or sell.
76. Despite demand for the return of his artwork, the Police have refused to return same.
xi. March 14, 1998 Nesbitt Unauthorized Vending Summons
77. On March 14, 1998, Nesbitt was issued a Summons No. 203562146-0 for displaying artwork at 81st Street and 5th Avenue, in front of the Met, in violation of Reg. § 1-05(b).
xii. March 14, 1998 Zhang Unauthorized Vending Summons
78. On March 14, 1998, Zhang was issued Summons No. 203562145-8 for displaying artwork at 81st Street and 5th Avenue, in front of the Met, in violation of Reg. § 1-05(b).
xiii. March 15, 1998 Nesbitt Unauthorized Vending Summons
79. On March 15, 1998, at 12:17 p.m., Nesbitt was issued Summons No. 215776461-6 for displaying artwork at 81st Street and 5th Avenue, in front of the Met, in violation of Reg. § 1-05(b).
80. On the same day, at 1:30 p.m., Nesbitt was issued Summons No. 215784181-7 again for displaying artwork at 81st Street and 5th Avenue, in front of the Met, in violation of Reg. § 1-05(b).
xiv. March 15, 1998 Lederman Unauthorized Vending Arrest
81. On March 15, 1998, Lederman was selling art from a display in front of the Met.
82. Parks Department enforcement officials issued summons #203546628-3 to Lederman as soon as he set up and told him to remove the art.
83. Approximately 15 minutes later, the same officials issued a second summons #203553202-4.
84. Approximately fifteen minutes after issuing the second summons, the officials handcuffed Lederman, dragged him to their vehicle, and threw him inside. Lederman was issued Desk Appearance Ticket for arrest number M98030089.
85. Lederman was taken to the Central Park Precinct Station and placed in a holding cell. The sergeant in charge of the holding cell said he was sick and tired of the protester "sissies."
86. Lederman made some comments about the atmosphere in the City encouraged by the Giuliani Administration and Giuliani's police state, to which the holding cell officer told Lederman to shut his mouth.
87. Lederman said that he still had the right to speak even though he was arrested, to which the sergeant responded, "You're in our house, you're a prisoner you have no rights. If you don't shut up I'll have your charged with Obstruction of Governmental Administration and put through the system."
88. Later, a different officer came over and said to Lederman, "I may have you sent downtown and have them beat the shit out of you."
89. Lederman answered, "What is your name, officer?" The officer refused to answer. He was wearing no identification, and was in plain clothes.
90. After approximately three hours in the Central Park Precinct, Lederman was handcuffed and taken to the 25th Precinct in Harlem.
91. Lederman was held at the 25th Precinct until approximately 6:30 PM and then released in an unfamiliar area in Harlem.
xv. March 20, 1998 Zhang Unauthorized Vending Summons
92. On March 20, 1998, Zhang was issued Summons No. 215778353-2 for displaying artwork at 81st Street and 5th Avenue, in front of the Met, in violation of Reg. § 1-05(b).
xvi. March 20, 1998 Nesbitt Unauthorized Vending Summonses
93. On March 20, 1998, Nesbitt was issued Summonses No. 215783547-7 and 215778354-4 for displaying artwork at 81st Street and 5th Avenue, in front of the Met, in violation of Reg. § 1-05(b).
xvii. March 24, 1998 Lederman Unauthorized Vending Arrests
94. On March 24, 1998, Lederman was in front of the Met with a display of magazines, some books of poetry Lederman had written and illustrated for, and some photographs of Lederman's arrests.
95. Lederman was issued summonses # 215784978-5 and 215784986-6 for "unlawful vending" and arrested by the police.
96. The police falsely accused Lederman of resisting arrest, he was held in the Tombs over night and released the next day.
xviii. March 24, 1998 Masco Unauthorized Vending Summons
97. On March 24, 1998, Masco was issued Summons No. 215783549-0
for displaying artwork at 81st Street and 5th Avenue, in front
of the Met, in violation of Reg. § 1-05(b).
xix. March 24, 1998 Nesbitt Unauthorized Vending Summons
98. On March 24, 1998, Nesbitt was issued Summons No. 215783546-5 for displaying artwork at 81st Street and 5th Avenue, in front of the Met, in violation of Reg. § 1-05(b).
xx. March 24, 1998 Zhang Unauthorized Vending Summons
99. On March 24, 1998, Zhang was issued Summons No. 215783548-9 for displaying artwork at 81st Street and 5th Avenue, in front of the Met, in violation of Reg. § 1-05(b).
xxi. April 1, 1998 Masco Unauthorized Vending Arrest
100. On April 1, 1998, Masco was issued Summons No. 215783781-4 for displaying artwork at 81st Street and 5th Avenue, in front of the Met, in violation of Reg. § 1-05(b).
xxii. April 1, 1998 Lederman Unauthorized Vending Summons
101. On April 1, 1998, Lederman was issued Summons No. 222550183-0 for displaying artwork at 81st Street and 5th Avenue, in front of the Met, in violation of Reg. § 1-05(b) and the police confiscated the art Lederman was displaying.
xxiii. April 5, 1998 Masco Unauthorized Vending Summons
102. On April 5, 1998, Masco was issued Summons No. 215783691-3 for displaying artwork at 81st Street and 5th Avenue, in front of the Met, in violation of Reg. § 1-05(c).
xxiv. April 5, 1998 Lederman Unauthorized Vending Summons
103. On April 5, 1998, Lederman was issued Summons No. 215783692-5
for displaying artwork at 81st Street and 5th Avenue, in front
of the Met, in violation of Reg. § 1-05(c).
xxv. April 7, 1998 Masco Unauthorized Vending Summonses
104. On April 7, 1998, Masco was issued Summonses No. 203546629-5 and 203546630-1 for displaying artwork at 81st Street and 5th Avenue, in front of the Met, in violation of Reg. §§ 1-03(c)(1) and 1-05(b).
xxvi. April 7, 1998 Lederman Unauthorized Vending Summonses
105. On April 7, 1998, Lederman was issued Summonses No. 222550185-3 and 222564326-0 for displaying artwork at 81st Street and 5th Avenue, in front of the Met, in violation of Reg. §§ 1-03(c)(1) and 1-05(b).
xxvii. April 8, 1998 Masco Unauthorized Vending Arrest
106. On April 8, 1998, Masco was issued Summonses No. 222550269 and 222550270-5 for displaying artwork at 81st Street and 5th Avenue, in front of the Met, in violation of Reg. §§ 1-03(c)(1) and 1-05(b).
xxviii. April 8, 1998 Lederman Unauthorized Vending Arrest
107. On April 8, 1998, Lederman was issued Summons No. 222564328-3 and arrested for displaying artwork at 81st Street and 5th Avenue, in front of the Met, in violation of Reg. §1-05(b).
xxix. April 11, 1998 Lederman Unauthorized Vending Summons
108. On April 11, 1998, Lederman was issued Summons No. 203562150-1 and arrested for displaying artwork at 81st Street and 5th Avenue, in front of the Met, in violation of Reg. §1-05(b).
xxx. April 12, 1998 Lederman Unauthorized Vending Summonses
109. On April 12, 1998, Lederman was issued Summonses No. 222564333-7 and 222564332-5 for displaying artwork at 81st Street and 5th Avenue, in front of the Met, in violation of Reg. §§ 1-03(c)(1) and 1-05(b).
xxxi. April 22, 1998 Lederman Unauthorized Vending Arrest
110. On April 22, 1998, Lederman was issued Summonses No. 222553208-4 and 215784250-0 and arrested for displaying artwork at 81st Street and 5th Avenue, in front of the Met, in violation of Reg. §§ 1-03(c)(1) and 1-05(c)(1).
FIRST CLAIM FOR RELIEF
(Free Speech)
111. Plaintiffs repeat and reallege each and every allegation contained hereinabove as though set forth more fully herein.
112. Reg. §§ 1-03(b)(6) and 1-05(b), both as enacted and as applied to Plaintiffs, operate as a prior restraint on constitutionally protected speech under the First Amendment to the United States Constitution and Article 1, § 8, of the New York State Constitution, in that they effectively bar Plaintiffs from displaying or selling their art on the streets in front of the Met.
113. The free speech rights affected by Reg. §§ 1-03(b)(6) and 1-05(b) are fundamental rights guaranteed by the First Amendment and Article 1, § 8.
114. Reg. §§ 1-03(b)(6) and 1-05(b) are not narrowly tailored to serve a significant governmental interest.
115. In fact, Reg. §§ 1-03(b)(6) and 1-05(b) are being utilized against artists such as Plaintiffs for the distinct purpose of curtailing their First Amendment and Article 1, § 8, rights.
116. Plaintiffs' display and sale of their original artworks in front of the Met is intended to convey a political message pertaining to the contrast between Plaintiffs' "living art," where the viewer or purchaser is brought into a dynamic, direct contact with the creator of the work, and the formalized display of so-called "institutionalized art" by dead or absentee artists within the chilly confines of perhaps the premier art gallery in the United States.
117. The enforcement of Reg. §§ 1-03(b)(6) and 1-05(b) to prevent Plaintiffs from displaying their artworks in front of the Met because they have not first obtained permits is a mockery of the rule enunciated in Bery, which held that "the City's requirement that [the artist-plaintiffs] be licensed in order to sell their artwork in public spaces constitutes an unconstitutional infringement of their First Amendment rights."_
118. The constitutional flaws of Reg. §§ 1-03(b)(6) and 1-05(b) have been and still are known to Defendants; nevertheless, Defendants have engaged and continue to engage in the enforcement of these regulations, which violates Plaintiffs' constitutional rights and has thereby injured Plaintiffs.
SECOND CLAIM FOR RELIEF
(Declaratory Judgment)
119. Plaintiffs repeat and reallege each and every allegation contained hereinabove as though set forth more fully herein.
120. For all of the above-mentioned reasons, there exists an actual, substantial and immediate controversy within the Court's jurisdiction, which controversy is the result of Defendants' conduct and which controversy can be redressed by a judicial decision in favor of Plaintiffs. Thus, the Court may properly declare Plaintiffs' constitutional and civil rights in respect of this action.
THIRD CLAIM FOR RELIEF
(Civil Rights - 42 U.S.C. § 1983)
121. Plaintiffs repeat and reallege each and every allegation contained hereinabove as though set forth more fully herein.
122. Defendants are persons who, under color of law, and as a result of their enforcement of Reg. §§ 1-03(b)(6) and 1-05(b), have subjected Plaintiffs to the deprivation of their civil rights as guaranteed by the First and Fourteenth Amendments of the United States Constitution.
123. Defendants have engaged and continue to engage in behavior that violates Plaintiffs' constitutional rights of free speech and have thereby irreparably injured Plaintiffs.
FOURTH CLAIM FOR RELIEF
(Civil Rights - 42 U.S.C. § 1985[3])
124. Plaintiffs repeat and reallege each and every allegation contained hereinabove as though set forth more fully herein.
125. Defendants and each of them have entered into conspiracies with each other, at one time or another, to deprive one or more of Plaintiffs, either directly or indirectly, of his or her privileges and immunities under the laws, specifically Plaintiffs' civil rights guaranteed by the First and Fourteenth Amendments of the United States Constitution.
126. Plaintiffs have been injured by being deprived of their rights and privileges as citizens of the United States, and have been damaged as a result thereof.
FIFTH CLAIM FOR RELIEF
(Civil Rights - 42 U.S.C. § 1986)
127. Plaintiffs repeat and reallege each and every allegation contained hereinabove as though set forth more fully herein.
128. Defendants, particularly Giuliani, Safir and Stern, have known that enforcement of Reg. §§ 1-03(b)(6) and 1-05(b) against Plaintiffs would deprive them, either directly or indirectly, of their privileges and immunities under the laws, specifically Plaintiffs' civil rights guaranteed by the First and Fourteenth Amendments of the United States Constitution, and have had the power to prevent or aid in preventing said enforcement of the regulations against Plaintiffs, but have neglected or refused to do so.
129. Defendants have enforced Reg. §§ 1-03(b)(6) and 1-05(b) against Plaintiffs and have deprived them, either directly or indirectly, of their privileges and immunities under the laws, specifically Plaintiffs' civil rights guaranteed by the First and Fourteenth Amendments of the United States Constitution, and Plaintiffs have been injured as a result thereof.
DEFACEMENT OF CITY PROPERTY STATUTES
130. The Administrative Code of the City of New York ("Code") § 10-117 provides:
Defacement of property, possession, sale and display of aerosol spray paint cans and broad tipped markers prohibited in certain instances.
a. No person shall write, paint or draw any inscription, figure
or mark of any type on any public or private building or other
structure or any other real or personal property owned, operated
or maintained by a public benefit corporation, the city of New
York or any agency or instrumentality thereof or by any person,
firm, or corporation, or any personal property maintained on a
city street or other city-owned property pursuant to a franchise,
concession or revocable consent granted by the city, unless the
express permission of the owner or operator of the property has
been obtained.
b. No person shall carry an aerosol spray paint can or broad tipped indelible marker into any public building or other public facility with the intent to violate the provisions of subdivision a of this section.
c. No person shall sell or offer to sell an aerosol spray paint can or broad tipped indelible marker to any person under eighteen years of age.
d. All persons who sell or offer for sale aerosol spray paint
cans or broad tipped indelible markers shall not place such cans
or markers on display and may display only facsimiles of such
cans or markers containing no paint or ink.
e. For the purpose of this section, the term "broad tipped
indelible marker" shall mean any felt tip marker or similar
implement containing a fluid that is not water soluble and which
has a flat or angled writing surface one-half inch or greater.
f. Any person who violates the provisions of this section shall
be guilty of a class B misdemeanor punishable by a fine, of not
more than five hundred dollars or imprisonment of not more than
three months, or both.
g. In addition to the criminal penalties imposed pursuant to
subdivision f of this section, a person who violates the provisions
of subdivision a, b, c or d of this section shall be liable for
a civil penalty of not more than five hundred dollars for each
violation which may be recovered in a proceeding before the environmental
control board. Such proceeding shall be commenced by the service
of a notice of violation returnable before such board.
h. In addition to police officers, officers and employees of
the department of consumer affairs, sanitation, environmental
protection and transportation shall have the power to enforce
the provisions of this section and may issue notices of violation,
appearance tickets or summonses for violations thereof.
131. Code § 19-138 provides:
Injury to or defacement of streets.
a. Breaching or injuring. It shall be unlawful for any person
to break or otherwise injure any street. There shall be no penalty
for a violation of this section in case of any accidental breaking
of or injury to a street which is repaired to the satisfaction
of the commissioner, within forty-eight hours after such break
or injury.
b. Defacing. Except as otherwise provided by law, it shall be unlawful for any person to deface any street by painting, printing or writing thereon, or attempting thereto, in any advertisement or other printed matter.
132. Furthermore, 56 R.C.N.Y. § 1-04(a) provides:
(a) Destruction or abuse of property and equipment. No person
shall injure, deface, alter, write upon, destroy, remove or tamper
with in any way, any real or personal property or equipment owned
by or under the jurisdiction or control of the Department._
133. Artists such as Plaintiffs at various times have engaged in protests against the Giuliani Administration's disregard for their and other citizens' constitutionally protected rights, such as those at issue in Bery and those at issue here. Plaintiffs have protested at various times the City's requirement that they obtain licenses or permits to display or sell their art on public streets, and have protested the regular confiscation and destruction of their artwork, their exposure to arbitrary arrests and the habitual harassment tactics practiced by City law enforcement officials. The artists use various methods to express their political beliefs, including demonstrating, picketing City agencies, passing out fliers, and writing in chalk on the sidewalks and streets of the city.
134. On numerous occasions, Lederman has written "Giuliani = Police State" on the sidewalk in chalk. On those occasions, Lederman has been arrested, usually for violation of one or more of the Defacement Statutes.
135. Except for their content, the messages written by the artists in chalk are indistinguishable from markings on the street and sidewalk made by other individuals whom the police do not arrest or change. For instance, various Plaintiffs have observed a mime performing in front of the Met draw a circle on the sidewalk in chalk at the beginning of his performance. Children playing in the street draw hopscotch markings, and people draw on the sidewalk and street at various times, for various reasons. However, in none of these cases did arrests follow or prosecutions ensue.
136. The messages written by Plaintiffs in chalk have never damaged or defaced public property, as the chalk is always blown away by the wind within a few hours.
137. Accordingly, the arrests of the Plaintiffs, particularly Lederman, for expressing their political opinions in sidewalk chalk markings is selective, content-based prosecution, in clear violation of the First and Fourteenth Amendments.
138. Accordingly, either the Defacement Statutes do not apply to writing in chalk and, in that case, are being used by Defendants to harass Plaintiffs and curtail the dissemination of their beliefs through means protected by the First Amendment, or the Defacement Statutes are unconstitutionally overbroad on their face and as applied to chalk writings.
i. January 14, 1998 Lederman "Chalking" Arrest
139. On January 14, 1998, Lederman was arrested at approximately 1:05 P.M. in the parking lot in front of City Hall by members of the Municipal Security Section of the Police Department.
140. Lederman was arrested for writing "Giuliani = Police State" in the vicinity of the Mayor's parked car, while Mayor Giuliani was delivering his State of the City address inside City Hall.
141. Lederman was handcuffed and taken to the basement of City Hall where he was held for approximately thirty (30) minutes.
142. Lederman was then taken to the First Precinct, where he was held handcuffed in a cell for three hours with four other arrestees who were not handcuffed.
143. Lederman was then interrogated by three members of the Intelligence Division of the Police Department.
144. Lederman was issued Criminal Court Summons No. 225624621 8 for Defacement of Property in violation of Code §_10-117 and released from custody.
ii. January 21, 1998 Lederman and Masco "Chalking" Arrest
145. On January 21, 1998, Lederman and Masco were arrested, at approximately 12:00 P.M., at the corner of 50th Street and 5th Avenue for writing "Giuliani = Police State" on the curb with chalk.
146. Lederman and Masco were handcuffed and taken to the police station on 54th Street, where they were charged with Defacement of Street in violation of Code §_19-138(a) and Disorderly Conduct in violation of the Penal Law § 240.20(5).
iii. February 3, 1998 Lederman "Chalking Arrest"
147. On February 3, 1998, Lederman attended a demonstration outside New York University's Cantor Film Center at the corner of 8th Street and 5th Avenue.
148. The demonstration preceded the screening of the film "Oscar Phitkin, A Vendor's Tale."
149. On the sidewalk, at the corner of 8th Street and Fifth Avenue, Lederman wrote "Giuliani = Police State" in chalk.
150. Lederman was handcuffed and arrested and charged with "Obstructing Governmental Administration/ Disorderly Conduct."
iv. February 6, 1998 Lederman "Chalking Arrest"
151. On February 6, 1998, Lederman was involved in a scheduled demonstration against the pedestrian barricade on 50th Street and 5th Avenue.
152. Lederman wore a canvas sandwich board that said "Giuliani = Police State."
153. Lederman wrote in chalk on the sidewalk "Giuliani = Police State."
154. At least two other demonstrators similarly wrote in chalk on the sidewalk "Giuliani = Police State."
155. Simultaneous with other pedestrians Lederman crossed the street in the intersection, with a green light facing him, ignoring the pedestrian barricades.
156. Only Lederman was arrested, and he was taken to the local police station; none of the other persons were arrested or in any way interfered with.
157. Lederman was placed in a holding cell by Officer Ryan for approximately twenty (20) minutes. At one point, P.O. Ryan said to Lederman, "My father told me about guys like you, professional agitators."
158. Lederman was issued Summons No. 225100497-0 for disorderly conduct in violation of Penal Law 240.20.
159. Upon Lederman's release, about two hours later, Officer Ryan violently shoved Lederman as he was leaving the precinct.
v. February 27, 1998 Lederman "Chalking Arrest"
160. On February 27, 1998, Lederman was in front of the Met displaying his work.
161. Lederman witnessed a group of police officers harassing several artists and serving one of them with a summons. In protest of such police action, Lederman was writing "Stop Harassing . . ." in chalk on the sidewalk in front of the steps of the Met, when approximately twelve police officers gathered to observe him.
162. P.O. R. Sanchez asked Lederman how much more Lederman intended to write, to which Lederman replied, "I'm just going to finish the word 'Artists.'"
163. Lederman returned to his art display and approximately twenty (20) minutes later was arrested, handcuffed, forced into a police car by four police officers, and taken to the Central Park Precinct police station.
164. Lederman was issued Summons No. 400636023-0 for "Defacing Property/Graffiti w/Chalk" in violation of Code § 10-117.
vi. February 28, 1998 Lederman "Chalking Arrest"
165. On February 28, 1998, Lederman attended a protest outside of the Met.
166. After the police confiscated the art work of some of the artists, Lederman wrote "Giuliani = Police State" in chalk near the police barricades on the sidewalk.
167. Approximately one hour later, Sgt. Rosado and a few other police officers grabbed the Lederman and dragged him over to a waiting police van.
168. Lederman was issued a summons by the police officers for "Defacing Property/ Graffiti w/ Chalk" in violation of Administrative Code 10-117.
vii. March 1, 1998 Lederman "Chalking Arrest"
169. On March 1, 1998, Lederman attended a protest outside of the Met.
170. As part of the protest, Lederman wrote "Giuliani = Police State" in chalk on the sidewalk.
171. Lederman was twice arrested and charged with violation of Reg. § 1-04(a) and was also issued Desk Appearance Ticket No. M98024104 on charges of Inciting a Riot, Unlawful Assembly, and Disorderly Conduct.
viii. March 7, 1998 Lederman Summons for Posting
172. On March 7, 1998, Lederman and another individual posted leaflet reproductions of a "New York Times" editorial on a kiosk located on the public sidewalk by the curb at 81st Street and 5th Avenue, in front of the Met.
173. Approximately one hour later, Lederman was issued Summons No. 203553204-8, for "unlawful posting of notices or signs" in violation of Reg. § 1-05(c)(3).
ix. March 10, 1998 Lederman Arrest For Displaying Art Work
174. On March 10, 1998, Lederman and other artists were displaying their artwork at 81st Street and 5th Avenue. A few hours later, Chief Brash and about fifteen park police officers arrived. They confiscated Lederman's artwork and books and destroyed his displays. Lederman was arrested, under the supervision of Chief Brash, taken to the Central Park Precinct and held for three hours. Lederman was kept handcuffed the entire time he was held at the station. Lederman was charged with Harassment, Disorderly Conduct, Obstruction and Unlawful Assembly.
x. March 26, 1998 Lederman "Chalking Arrest"
175. On March 26, 1998, Lederman was issued Summons No. 215784182-9 for writing in chalk "Art = Speech" and "Giuliani = Police State" on the sidewalk at 81st Street and 5th Avenue, in front of the Met, in violation of Reg. § 1-04(a).
176. Lederman then made a speech stating that his First Amendment rights were being violated by the police and wrote another line of "Giuliani = Police State" on the sidewalk in chalk.
177. The police arrested Lederman and held him at the Central Park and 25th Precincts for approximately five (5) hours.
178. Lederman was issued a Desk Appearance Ticket for Defacing Parks Property in violation of Reg § 1-04(a).
SIXTH CLAIM FOR RELIEF
(First Amendment)
179. Plaintiffs repeat and reallege each and every allegation contained hereinabove as though set forth more fully herein.
180. Code §§ 10-117 and 19-138, the Defacement Statutes, both as enacted and as applied to Plaintiffs herein, operate as prior restraints on constitutionally protected speech under the First Amendment of the United States Constitution and Article 1, § 8, of the New York State Constitution.
181. Plaintiffs' free speech rights affected by the Defacement Statutes are fundamental rights guaranteed by the First Amendment and by Article 1, § 8.
182. The Defacement Statutes are not narrowly tailored to serve a significant or reasonable governmental interest.
183. In fact, Defendant have enforced the Defacement Statutes against Lederman and other Plaintiffs for the purpose of curtailing their free speech rights under the First Amendment and Article 1, § 8.
184. The Defacement Statutes are overbroad and vague, which has given Defendants the power to control free expression.
185. Despite the obvious constitutional flaws in the application
of the Defacement Statutes to the incidents of "chalking"
described above, Defendants have engaged and continue to engage
in behavior that violates Plaintiffs' constitutional rights of
free speech, and have thereby irreparably injured Plaintiffs.
If this unconstitutional conduct is not enjoined, Plaintiffs
will continue to be irreparably injured.
SEVENTH CLAIM FOR RELIEF
(Fourteenth Amendment Equal Protection)
186. Plaintiffs repeat and reallege each and every allegation contained hereinabove as though set forth more fully herein.
187. Either on their face or in the manner of their enforcement the Defacement Statutes create favored and unfavored categories of speakers insofar as only Plaintiffs, and Lederman in particular, persons whose chalk writings convey political messages critical of the Giuliani Administration, have been charged with violating the Defacement Statutes, while mimes and other persons whose sidewalk chalk drawings convey no political message or a message that is acceptable to the Giuliani Administration have not been charged.
188. As a result of this distinction, the Defacement Statutes, either on their face or in the manner of their enforcement, violate the right of Equal Protection under the laws guaranteed by Fourteenth Amendment of the United States Constitution and Article 1, § 11, of the New York State Constitution.
189. Despite the obvious constitutional flaws in the application
of the Defacement Statutes to the incidents of "chalking"
described above, Defendants have engaged and continue to engage
in behavior that violates Plaintiffs' constitutional rights of
Equal Protection, and have thereby irreparably injured Plaintiffs.
If this unconstitutional conduct is not enjoined, Plaintiffs
will continue to be irreparably injured.
EIGHTH CLAIM FOR RELIEF
(Declaratory Judgment)
190. Plaintiffs repeat and reallege each and every allegation contained hereinabove as though set forth more fully herein.
191. For all of the above-mentioned reasons, there exists an actual, substantial and immediate controversy within the Court's jurisdiction, which controversy is the result of Defendants' conduct and which controversy can be redressed by a judicial decision in favor of Plaintiffs. Thus, the Court may properly declare the constitutional and civil rights of Plaintiffs in respect of this action.
NINTH CLAIM FOR RELIEF
(Civil Rights - 42 U.S.C. § 1983)
192. Plaintiffs repeat and reallege each and every allegation contained hereinabove as though set forth more fully herein.
193. Defendants are persons who, under color of law, and as a result of their selective enforcement of the Defacement Statutes have subjected Plaintiffs to the deprivation of their civil rights as guaranteed by the First and Fourteenth Amendments of the United States Constitution.
194. Defendants have engaged and continue to engage in behavior
that violates Plaintiffs' constitutional rights of free speech
and have thereby irreparably injured Plaintiffs.
TENTH CLAIM FOR RELIEF
(Civil Rights - 42 U.S.C. § 1985[3])
195. Plaintiffs repeat and reallege each and every allegation contained hereinabove as though set forth more fully herein.
196. Defendants and each of them have entered into conspiracies with each other, at one time or another, to deprive one or more of Plaintiffs, either directly or indirectly, of his or her privileges and immunities under the laws, specifically Plaintiffs' civil rights guaranteed by the First and Fourteenth Amendments of the United States Constitution.
197. Plaintiffs have been injured by being deprived of their rights and privileges as citizens of the United States, and have been damaged as a result thereof.
MALICIOUS AND HABITUAL HARASSMENT AND PROSECUTION
OF LEDERMAN BY NEW YORK CITY LAW ENFORCEMENT OFFICIALS
198. By all appearances, the Giuliani Administration and law enforcement personnel have selected Lederman, the president of A.R.T.I.S.T., as a focal point of the "Quality of Life" platform Giuliani is attempting to foist on New Yorkers. Lederman has been targeted; he has become the focus of police harassment, random prosecution, threats of violence, coercion and intimidation.
i. February 17, 1998 Lederman Court Appearance
199. On February 17, 1998, Lederman appeared in the Criminal Court at 346 Broadway, New York, New York, as required by the summonses issued for the January 14, 1998 and January 21, 1998 "chalking arrests" described above.
200. While Lederman was sitting in the courtroom waiting for his case to be called, Sgt. Brown and Officer Haynes, court officers, called out Lederman's name and motioned for him to step into the hallway.
201. Lederman complied, whereupon Brown and Haynes each grabbed Lederman by an arm and dragged him into a small room across the hall.
202. Upon entering the room, Brown viciously shoved Lederman into a wall and punched Lederman in the back.
203. Lederman asked Brown and Haynes what they were doing. Brown or Hayes responded that they were going to search Lederman for a tape recorder.
204. Brown and Haynes thereupon searched Lederman in a manner that was intended to make Lederman experience great discomfort and embarrassment.
205. No tape recorder was found.
206. Brown and Haynes pulled a camera out of Lederman's coat pocket and removed the film from the camera, thus destroying the photographic images recorded on the film.
207. At no time he was in the courtroom, had Lederman removed the camera from his bag or shown it to anyone.
208. Brown and Haynes refused to return the camera, despite Lederman's request that they do so.
209. Brown and Haynes conducted a "search" of Lederman's briefcase by dumping the contents and tearing apart the papers it contained.
210. Lederman was thereupon released by Brown and Haynes, and he telephoned 911 to report that he had been assaulted by two court officers.
211. Lederman requested that the 911 operator send an ambulance, as the violent treatment at the hands of Brown and Haynes had greatly aggravated Lederman's pre-existing back injury.
212. Five police officers from the First Precinct and several police officers from the Fifth Precinct responded to the 911 call, as did an ambulance.
213. The police who responded to the 911 call located Brown and Hayes and conferred with them.
214. In the presence of several of the police officers, Brown and Haynes handcuffed Lederman and led him away, without allowing him to be examined by the paramedics.
215. Brown and Haynes dragged Lederman down a hallway in the courthouse, up a flight of stairs and through a long corridor of empty and seemingly deserted offices.
216. Lederman began to fear for his life and safety.
217. Lederman asked Brown and Haynes if he was being arrested, and they responded that he was not.
218. Brown and Haynes forcibly searched Lederman again.
219. Haynes handcuffed Lederman to a bench and wrote out a summons for disorderly conduct under Penal Law § 240.20(4).
220. Brown and Haynes removed Lederman's handcuffs after twenty minutes, and allowed Lederman to return to the Courtroom.
221. When Lederman's case was called, Lederman described to the Judge presiding the events that had transpired, at which time Lederman's camera was returned to him, without the film.
ii. May 27, 1998 Lederman Disorderly Conduct Arrest
222. On May 27, 1998, Mayor Giuliani gave the commencement address to the graduating class of the Cooper Union Art, Architecture and Engineering School ("Cooper Union").
223. Lederman protested the commencement address by displaying satirical portraits of Mayor Giuliani outside of Cooper Union.
224. Lederman was arrested for disorderly conduct and the portraits he was displaying were confiscated by the police, although Lederman did not engage in disorderly conduct and no reason has been given by Defendants as to how the confiscated artwork could be evidence of disorderly conduct.
ELEVENTH CLAIM FOR RELIEF
(Fourth, Fifth and Fourteenth Amendments)
225. Plaintiffs repeat and reallege each and every allegation contained hereinabove as though set forth more fully herein.
226. As a result of their actions, defendants City, OCA, Brown and Haynes have denied Lederman his right to be secure in his person and property, to be free from the excessive use of force and summary punishment, and to due process of law, as guaranteed by the Fourth, Fifth and Fourteenth Amendments to the United States Constitution and Article 1, § 11, of the New York State Constitution.
TWELFTH CLAIM FOR RELIEF
(Civil Rights - 42 U.S.C. § 1983)
227. Plaintiffs repeat and reallege each and every allegation contained hereinabove as though set forth more fully herein.
228. Defendants City, OCA, Brown and Haynes are persons who, under color of law, have subjected Lederman to the deprivation of his civil rights as guaranteed by the Fourth, Fifth and Fourteenth Amendments of the United States Constitution.
229. Defendants have engaged in behavior that violates Plaintiffs' constitutional rights of free speech and have thereby irreparably injured Lederman.
THIRTEENTH CLAIM FOR RELIEF
(Civil Rights - 42 U.S.C. § 1985[3])
230. Plaintiffs repeat and reallege each and every allegation contained hereinabove as though set forth more fully herein.
231. Defendants City, OCA, Brown and Haynes and each of them have entered into conspiracies with each other, at one time or another, to deprive one or more of Plaintiffs, either directly or indirectly, of his or her privileges and immunities under the laws, specifically Plaintiffs' civil rights guaranteed by the First and Fourteenth Amendments of the United States Constitution.
232. Lederman has been injured by being deprived of his rights
and privileges as a citizen of the United States, and has been
damaged as a result thereof.
FOURTEENTH CLAIM FOR RELIEF
(Assault and Battery)
233. Plaintiffs repeat and reallege each and every allegation contained hereinabove as though set forth more fully herein.
234. Brown and Haynes, individually and as agents of the City and OCA, assaulted and battered Lederman.
235. By reason of such assault and battery, Lederman has been damaged.
FIFTEENTH CLAIM FOR RELIEF
(False Imprisonment)
236. Plaintiffs repeat and reallege each and every allegation contained hereinabove as if set forth more fully herein.
237. Brown and Haynes, individually and as agents of the City and OCA, falsely imprisoned Lederman.
238. By reason of such false imprisonment, Lederman has been damaged.
WHEREFORE, Plaintiffs respectfully request the following relief:
a. A declaratory judgment that 56 R.C.N.Y. §§ 1-03(b)(6), and 1-05(b) are unconstitutional facially and as applied under the United States Constitution and the New York State Constitution, and that enforcement of those regulations violate Plaintiffs' civil rights under 42 U.S.C. § 1983.
b. A permanent injunction enjoining Defendants and their agencies, officers, employees, agents and all persons acting in concert with them from enforcing, by means of arrest, threats of arrest, issuance of summonses, confiscation of materials or any other means of enforcement, 56 R.C.N.Y. §§ 1-03(b)(6), and 1-05(b) against Plaintiffs for selling fine art of their own creation on the streets of New York City.
c. A declaratory judgment that 56 R.C.N.Y. § 104(a) and §§ 19-138 and 10-117 of the New York Administrative Code are unconstitutional facially and as applied under the United States Constitution and the New York State Constitution, and that they violate Plaintiffs' civil rights under 42 U.S.C. § 1983.
d. A permanent injunction enjoining Defendants and their agencies, officers, employees, agents and all persons acting in concert with them from enforcing, by means of arrest, threats of arrest, issuance of summonses, or any other means of enforcement, 56 R.C.N.Y. § 104(a) and §§ 19-138 and 10-117 of the New York Administrative Code against Plaintiffs' writing in chalk on the sidewalks of New York City.
e. An award of monetary damages to Plaintiffs for those compensable injuries suffered by Plaintiffs as a result of Defendants enforcement of 56 R.C.N.Y. §§ 1-03(b)(6) and 1-05(b).
f. An award of monetary damages to Plaintiffs for injuries suffered by Plaintiffs as a result of Defendants' violations of Plaintiffs' constitutional and civil rights, as follows:
i. On the First Claim against Defendants, the sum of $50,000,000.00, together with interest thereon in general damages and $200,000,000.00 in punitive damages;
ii. On the Second Claim against Defendants, the sum of $50,000,000.00, together with interest thereon in general damages and $200,000,000.00 in punitive damages;
iii. On the Third Claim against Defendants, a sum to be determined at trial but in no event less than $50,000,000.00 in general damages and $200,000,000.00 in punitive damages;
iv. On the Fourth Claim against Defendants, a sum no less than $50,000,000.00 in general damages and $200,000,000.00 in punitive damages;
v. On the Fifth Claim against Defendants, a sum no less than $50,000,000.00 in general damages and $200,000,000.00 in punitive damages;
vi. On the Sixth Claim against Defendants, a sum no less than $50,000,000.00 in general damages and $200,000,000.00 in punitive damages;
vii. On the Seventh Claim against Defendants, a sum no less than $50,000,000.00 in general damages and $200,000,000.00 in punitive damages;
viii. On the Eighth Claim against Defendants, a sum no less than $50,000,000.00 in general damages and $200,000,000.00 in punitive damages;
ix. On the Ninth Claim against Defendants, a sum no less than $50,000,000.00 in general damages and $200,000,000.00 in punitive damages;
x. On the Tenth Claim against Defendants, a sum no less than $50,000,000.00 in general damages and $200,000,000.00 in punitive damages;
xi. On the Eleventh Claim against Defendants, a sum no less than $50,000,000.00 in general damages and $200,000,000.00 in punitive damages;
xii. On the Twelfth Claim against Defendants, a sum no less than $50,000,000.00 in general damages and $200,000,000.00 in punitive damages;
xiii. On the Thirteenth Claim against Defendants, a sum no less than $50,000,000.00 in general damages and $200,000,000.00 in punitive damages;
xiv. On the Fourteenth Claim against Defendants, a sum no less than $50,000,000.00 in general damages and $200,000,000.00 in punitive damages;
xv. On the Fifteenth Claim against Defendants, a sum no less than $50,000,000.00 in general damages and $200,000,000.00 in punitive damages;
g. An award of the attorneys' fees, costs, and disbursements of this action; and
h. Such other and further relief as this Court may deem just and proper.
_ DEMAND FOR TRIAL BY JURY
Plaintiffs hereby demand trial by jury.
Dated: New York, New York
June 8, 1998
NESENOFF & MILTENBERG
Attorneys for Plaintiffs
By:
Andrew T. Miltenberg
(ATM 7006)
245 Fifth Avenue, Suite 901
New York, New York 10016
212.481.4242
To: MICHAEL D. HESS, ESQ.
CORPORATION COUNSEL OF THE
CITY OF NEW YORK
(Robin Binder, Esq.)
Attorney for Defendants
Rudolph Giuliani, City of
New York, New York City Police
Dep't, Howard Safir, New York
City Dep't of Parks and
Recreation and Henry J. Stern
100 Church Street, Room 5-171
New York, New York 10007
212.788.0818
DENNIS VACCO, ESQ.
Attorney General of the
State of New York
Attorney for State Defendants
120 Broadway
New York, New York 10271
212.416.8597
a:\atmd-27.55 6.7.98 11:40
_ 97 F.3d at 698.
_ Code §§ 10-117 and 19-138 are sometimes referred to collectively as the "Defacement Statutes."