Jefferson v. Rose et al

Filing 16

ORDER granting 3 Motion for Preliminary Injunction. SO ORDERED that Plaintiff's motion for a preliminary injunction is GRANTED. Defts and the Suffolk County Police Department are hereby ENJOINED from:( 1) enforcing, or threatening or attempti ng to enforce, the now-repealed N.Y. PENAL LAW § 240.35(1) and( 2) arresting, threatening or attempting to arrest, anyone for loitering, remaining, or wandering about for the purpose of begging. Plaintiff is warned, however, that Defts are not enjoined from arresting individuals for violating other, valid sections of the Penal Law while panhandling. The court certifies pursuant to 28 U.S.C. § 1915(a) (3) that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of any appeal. The Clerk of the Court is directed to send a copy of this Memorandum and Order to the prose Plaintiff. CM to pro se plaintiff. Ordered by Judge Joanna Seybert on 4/23/2012. (Florio, Lisa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

---------------------------------------X
KEVIN JEFFERSON,
Plaintiff,

MEMORANDUM & ORDER
12-CV-1334 (JS) (ARL)

-against-

FILED

EDWARD ROSE, Police Officer, Shield
No. 5098; POLICE OFFICER CRONIN; JOHN
DOE, Patrol Unit 314; BARRY BOE, Patrol
Unit 323A; FREDDY FOE, Patrol Unit 232A;
GREGORY GOE, Patrol Unit; COUNTY OF
SUFFOLK,

IN CLERK'SCOURT~ONY

US DISTRICT

*

APR 23 7.011

LONG ISlAND OFFICE

Defendants.

---------------------------------------X
APPEARANCES
For Plaintiff:

Kevin Jefferson, pro se
P.O. Box 1469
Riverhead, NY 11901

For Named Defendants:

Susan A. Flynn, Esq.
Suffolk County Attorney's Office
P.O. Box 6100
Hauppauge, NY 11788

SEYBERT, District Judge:
Pending
Jefferson's

before

the

("Plaintiff")

Court

motion for

is
a

pro

se

Plaintiff

Kevin

preliminary injunction.

For the following reasons, Plaintiff's motion is GRANTED.
BACKGROUND
I.

Legal Framework
New

York

Penal

Law

§

240.35(1)

(the

"Statute")

provides that a person is guilty of loitering if he "[l] oiters,
remains or wanders about
begging."

*

in a public place for the purpose of

In 1990, a number of homeless individuals who begged

on the streets and in th
brought a
States

k
e par s

of New York City

class action lawsuit against

Distr'ct
~

Court

for

th e

(the

"City")

the City in the United

s ou th ern

·

·

D~str~ct

of

New

York

asserting that the Statute infringed on their rights under the
First Amendment.
1029,

1032-34

1993) .

The

received

a

ordered

them

See Loper v. N.Y.C. Police Dep't, 802 F. supp.

(S.D.N.Y.
plaintiffs

summons
to

Nonetheless,

plaintiffs,

and

order,

valid

aff'd,

Loper

1992,

and

the

granted

interest

in

but

the

police

move

along.

Id.

declared
judgment

1047-48

preventing

the

is

at

1033.

Statute
favor

defendants

of
from

the Government

preserving

public

interests of audiences

the interest in permitting free speech and the

therefore

unconstitutional

under

Amendment to the United States Constitution,
states.") .

or

frequently

message begging sends about our society predominates.
240.35(1)

Cir.

arrested

in

("While

fraud,

and protecting and promoting the

and bystanders,

(2d

the

enjoined
at

699

been

court

permanently

F.2d

never

summary

Id.

999

had

begging,

begging

enforcing the Statute.
a

in

for

stop

in

unconstitutional,

has

1992),

Section

the

First

as applied to the

This decision was affirmed by the

Second Circuit.

See Loper v. N.Y.C. Police Dep't, 999 F.2d 699 (2d Cir. 1993).
Notwithstanding the injunction,
Statute continued unabated.
2d 347,

352-53

the enforcement of the

See Casale v.

Kelly,

(S.D.N.Y. 2010); Brown v. Kelly,
2

710 F.

05-CV-5442,

Supp.
2007

WL 1573957,

at

*1

(S.D.N.Y.

May 31,

In 2005,

2007).

another

class action lawsuit was commenced in the Southern District of
New

York

seeking

defendants

for

unlawfully

Kelly,

05-CV-5442

action

entered

aimed at

relief

against

enforcing

(S.D.N.Y.).

into

preventing

a

York

the

City

and

Statute.

State

Brown

v.

Although the defendants in that

stipulation

future

New

"so-ordered"

enforcement

of

the

by

the

court

Statute,

their

efforts to stop its enforcement were minimal at best and largely
unsuccessful.

See Casale,

710

F.

Supp.

2d at

353-59.

After

years of litigation, the court ultimately held the defendants in
contempt for their continued enforcement of the Statute:
Given the City's
long history of noncompliance and routine apathetic attitude
towards ending the illegal enforcement, the
City has demonstrated that nothing less than
the prospective threat of immediate and
severe consequences will motive it to comply
with the Court's Orders.
The City is
therefore
prospectively
fined
for
each
future violation of the Orders, payable to
the Court.
To ensure compliance in the long
term, the fine shall grow progressively.
The fine shall begin at $500 per incident of
enforcement.
Every three months thereafter,
the fine shall increase by $500.
The
maximum fine shall be $5,000 per incident of
enforcement.
Id. at 364.
In June 2010, the Appellate Term of the New York State
Supreme

Court

unconstitutional

"agree [d]
because

that
it

Penal

Law

§

violates

the

freedom-of-speech

3

240.35(1)

is

guarantee of the First Amendment," People v. Hoffstead, 28 Misc.
3d 16,

18,

later,

the

905 N.Y.S.2d 736,
New

York

effective immediately,

State

738

(App. Term 2010),

Legislature

repealed

2010 N.Y. Sess. Laws,

and a month
the

statute

Ch. 232,

§ 1, eff.

at approximately 2:30AM,

Plaintiff

July 30, 2010.
II.

Factual Background
On March 14, 2012,

1

was arrested at or around 107 Main Street in Bay Shore, New York

H 1, 29.)

for loitering for the purpose of begging.

(Compl.

The

arresting

Violation

Information,

signed

by

charged Plaintiff with violating N.Y.

the

PENAL

officer,

LAw§ 240.35(1),

and

stated as follows:
The defendant,
at 107 Main Street,
Bay
Shore, in the town of Islip, Suffolk County,
New York, on or about March 14, 2012, at
approximately 1:42AM, did loiter in a public
place for the purpose of begging; in that
the defendant was personally observed by
your deponent leaning into a vehicle window
stopped at the McDonalds drive thru and
begging customers for money following a 911
call to that location complaining of the
same.
Plaintiff asserts that he was held overnight and arraigned the
following morning for violating the Statute.

1

The Complaint asserts that Plaintiff was arrested on March 15,
2012, however the Violation Information signed by the arresting
officer indicates that the incident took place on March 14.
At
this stage of the litigation, this inconsistency is irrelevant.
4

Plaintiff
2012

against

the

commenced this action pro se on March 16,
arresting

officer,

Edward

Rose,

and

Suffolk

unidentified

officers

(collectively,

the

First,

and Fourteenth Amendments

Fourth,

Constitution
Plaintiff

and

involved,

"Defendants"),

various

laws

simultaneously filed

restraining

order

Defendants

and

and

the

asserting

of

the

Suffolk

claims

County

continuing to enforce the Statute.

other
County

under

the

to the united States
State

an application

preliminary

the

of
for

New
a

injunction
Police

York.

temporary
enjoining

Department

from

The Court denied Plaintiff's

ex parte request for a temporary restraining order and scheduled
a hearing on the preliminary injunction for March 26, 2012. 2
Rather than consent to the entry of an order barring
the

enforcement

Defendants
such

an

of

the

now-repealed

appeared

for

the

order--arguing

satisfy

his

charges

against

dismissed.

burden.

that

Statute,

hearing and opposed the

entry of

the

Defendants

Plaintiff

The court,

unconstitutional

for

pro

se

advised
violating

plaintiff
the
the

Court

failed

to

that

the

statute

were

after hearing argument from both sides,

reserved judgment stating that a written decision would follow.

2

Between the date of his arrest and the preliminary injunction
hearing, Plaintiff asserts that Suffolk County police officers
in the Third and Fifth precincts threatened to arrest him for
panhandling.
5

DISCUSSION
I.

Standard of Review
In order to justify a preliminary injunction, a movant

must demonstrate:
2)

either a

1)

irreparable harm absent injunctive relief;

likelihood of success on the merits,

question going

to

trial,

balance

with

a

plaintiff's favor,
favor

the

merits
of

and 3)

of granting an

to make

hardships
that

them a

tipping

or a

fair

serious

ground

decidedly

for

in

the

the public's interest weighs in

injunction.

Metropolitan Taxicab Bd.

of

Trade v. City of N.Y., 615 F.3d 152, 156 (2d Cir. 2010).
II.

Likelihood of Success on the Merits
To

1983,

establish

Plaintiff

must

a

prima

show

facie

that:

case

(1)

the

occurred "under color of state law" and
Plaintiff of a
42,

48,

108

present case,

Ct.

2250,

101

L.

(2)

Ed.

42

U.S .c.

challenged

§

action

the action deprived

West v.

constitutional right.

S.

under

2d

Atkins,

40

487 U.S.
In

(1988).

the

it is undisputed that Defendants were acting under

color of law:

they arrived on the scene in uniform in marked

patrol cars and proceeded to arrest Plaintiff.
The
constitutional

second

issue

deprivation.

broadly to assert

the

is whether
The

following

Plaintiff

Court

claims

reads

for

has

alleged a

the

Complaint

relief:

(1)

false

arrest and imprisonment, under both the Fourth Amendment and New
York

state

law,

(2)

violation

of
6

Plaintiff's

right

to

free

speech under the First Amendment,
claim.

The

Court

will

and

now address

(3)

a

1983 conspiracy

§

Plaintiff's

likelihood of

success on the merits on each of his claims individually.
A.

False Arrest
To

imprisonment,

succeed
3

on

Plaintiff must

intended to confine him,
confinement,
confinement

and

privileged.'"
State,

37

( 3)

for

show that

plaintiff

( 4)

the

"' ( 1)

did

not

confinement

316 F.3d at 134-35

451,

456,

373

N.Y.S.2d

(1975)); see also Weyant, 101 F.3d at 852
a

false

arrest

and

the defendant [s]

the plaintiff was conscious of the

the

Jocks,

N.Y.2d

(2)

claim

a

plaintiff claiming false arrest must

consent

was

not

to

the

otherwise

(quoting Broughton v.
87,

335

N.E.2d

310

("Under New York law,

show,

inter alia,

that

the defendant intentionally confined him without his consent and
without justification.").
The Court finds that Plaintiff is likely to succeed on
the merits:

He was arrested, allegedly pursuant to a widespread

practice of the Suffolk County Police Department,

for violating

a section of the New York Penal Law that was repealed almost two

3

The Second Circuit has consistently held that "[a] § 1983 claim
for false arrest, resting on the Fourth Amendment right of an
individual to be free from unreasonable seizures, including
arrest without probable cause, is substantially the same as a
claim for false arrest under New York law." Weyant v. Okst, 101
F.3d 845, 852 (2d Cir. 1996)
(internal quotation marks and
citations omitted); accord Jocks v. Tavernier, 316 F.3d 128, 134
(2d Cir. 2003).
7

years ago and declared unconstitutional almost twenty years ago.
Defendants do not dispute this.
B.

First Amendment
'"To recover on a first amendment claim under § 1983,

a

plaintiff must demonstrate

first

his conduct

amendment protection and that

harassment

was

exercise of
208

that

motivated

free

speech.'"

(2d Cir. 1991)

Comm' rs,

834

by

or

is deserving of

the defendants'

substantially

Rattner v.

conduct of

caused

Netburn,

930

by

his

F.2d 204,

(quoting Donahue v. Windsor Locks Bd. of Fire

F. 2d 54,

58

(2d Cir.

1987));

see also People for

the Ethical Treatment of Animals v. Out Front Prods. L.L.C., No.
03-CV-6312T, 2006 WL 839442, at *7

(W.D.N.Y. Mar. 29,

2006)

("To

state a claim for a violation of its First Amendment rights to
freedom of speech, plaintiffs
absent
cloaked

a

legitimate
with

[sic] would have to establish that

reason,

governmental

a

governmental

power,

restricted

restrict speech based on its content."
v.

Baldwinsville Cent.

Sch.

entity,

Dist.,

or

or a

party

attempted

to

(citing Peck ex rel. Peck

426 F.3d 617,

626

(2d Cir.

2005)).
The court finds that Plaintiff is likely to succeed on
the merits of this claim as well.
in

New

York

Plaintiff

was

have

recognized

doing

protected speech.

in

the

Both state and federal courts

that

begging

present

See Loper,

999
8

case,

F.2d at

or

panhandling,

is

constitutionally

704

(2d Cir.

as

1993)

("(T]he presence of an unkempt and disheveled person holding out
his or her hand or a cup to receive a donation itself conveys a
message

of

need

for

support

and

assistance.

We

see

little

difference between those who solicit for organized charities and
those

who

sol'c't
~ ~

conveyed.

The

for

former

themselves
are

·

~n

regar d

communicating

the

to

th e

needs

message

of

others

while the latter are communicating their personal needs.
solicit

the

charity

of

others.

This

distinction

Both
is

not

significant for First Amendment purposes.") ,

aff' g 802 F. Supp.

1029

3d

(S.D.N.Y.

1992);

N.Y.S.2d at

737-38;

Kelly,

WL

2007

Hoffstead,

Casale,

1573957,

at

28

710 F.
*1.

Misc.

Supp.

Further,

at

2d at

905

352;

Brown v.

Defendants

arrested

Plaintiff for violating the now-repealed Statute,
stop Plaintiff from panhandling.

18-20,

Accordingly,

presumably to

the Court finds

that Plaintiff is likely to succeed on the merits of his First
Amendment claim.•

Defendants do not dispute this.

4

Plaintiff also appears to be asserting a First Amendment
retaliation claim.
To succeed on a claim for retaliation in
violation of the First Amendment, Plaintiff must show that:
" ( 1) he has an interest protected by the First Amendment; ( 2)
defendants' actions were motivated or substantially caused by
his exercise of that right;
and
(3)
defendants'
actions
effectively chilled the exercise of his First Amendment right."
Curley v. Vill. of Suffern, 268 F.3d 65, 73 (2d Cir. 2001)
(citing Connell v. Signoracci, 153 F.3d 74, 79 (2d Cir. 1998)).
While, as discussed above, Plaintiff is likely to succeed in
proving the first two elements, the Court finds that Plaintiff
is not likely to succeed in establishing the chilling effects of
Defendants' actions.
"Where a party can show no change in his
behavior, he has quite plainly shown no chilling of his First
9

C.

Section 1983 Conspiracy
Plaintiff

also

claim

against

conspiracy
conspired
however,

to

violate

appears

to

assert

Defendants--i.e.,

his

constitutional

a

Section

that

1983

Defendants

rights.

Court,

that Plaintiff's claim is barred by the

finds

The

intra-

corporate conspiracy doctrine which "posits that the officers,
agents, and employees of a single corporate or municipal entity,
each

acting

legally

within

incapable

the

of

scope

of

his

or

her

employment,

conspiring with each other."

Long Island Hous. P'ship,

Inc., No.

at *9 (E.D.N.Y. Mar. 13, 2009)

08-CV-1455,

Daniel

are
v.

2009 WL 702209,

(citations omitted).

III. Irreparable Harm
"To

Plaintiff[]

satisfy
must

the

irreparable

demonstrate

that

harm

absent

requirement,
preliminary

a

injunction [he] will suffer an injury that is neither remote nor
speculative,

but

actual

and

imminent,

and one

that

cannot be

remedied if a court waits until the end of trial to resolve the
harm."

Grand River Enter. Six Nations, Ltd. v. Pryor,

60,

(2d Cir.

66

2007)

(internal

quotation marks

481 F.3d

and citation

omitted).
Defendants

argue

that

Plaintiff have been dismissed,

since

the

charges

against

he is not currently facing any

Amendment right to free speech," id.; and, here, Plaintiff
admits that he will continue to -panhandle notwithstanding
Defendants' threats of arrest (Pl. TRO/PI App. 4).
10

"irreparable

Even threats

of

(Flynn Aff.

harm."

arrest

,

7.)

or being told

The
to

Court disagrees.

"move along"

by the

police violate Plaintiff's rights and constitute actual injury.
See

Loper,

802

F.

Supp.

at

1034

("Even

though

this

precinct

formally prosecutes people under the Statute rarely, the Statute
is

used

by

the

restricting

the

Department
Plaintiffs'

as

a

source

assumed

of

authority
As

rights.

for
the

such,

Plaintiffs have suffered a concrete injury.").
Defendants

further argue that

Plaintiff's claim that

he is "at risk" of further arrest is too speculative to warrant
(Flynn

injunctive

relief.

disagrees.

At the hearing,

arrest on March 15,

Aff.

,

9.)

The

Court

again

Plaintiff asserted that between his

2012 and the hearing on March 26,

2012,

he

was threatened with arrest for panhandling by the Suffolk County
Police three times in two separate precincts.

Since Plaintiff

continues to beg, and Defendants continue to enforce (or attempt
to enforce) the ban on panhandling,
Plaintiff[]

is real."

Id.

"the threat of injury to the

at 1035-36

(citing United States v.

Students Challenging Regulatory Agency Procedures

(SCRAP),

412

U.S. 699, 688-89, 93 S. Ct. 2405, 37 L. Ed. 2d 254 (1973)).
Finally,
Plaintiff
monetary

is

not

damages

Defendants
irreparable
in

this

argue
because

action.

that
he
This

any

injury

can

seek

is

also

and

to

the

obtain

incorrect.

"Where a plaintiff alleges an injury from a rule or regulation
11

that directly limits speech,
may be presumed."

the irreparable nature of the harm

Bronx Household of Faith v. Bd. of Educ., 331

F.3d 342, 349 (2d Cir. 2003); see also Elrod v. Burns,
347, 373, 96 S. Ct. 2673, 49 L. Ed. 2d 547
First

Amendment

freedoms,

even

for

(1976)

minimal

u.s.

427

("The loss of

periods

of

time,

unquestionably constitutes irreparable injury.").
Accordingly,

the

Court

finds

that

Plaintiff

is

entitled to a preliminary injunction.
IV.

Scope of the Requested Preliminary Injunction
Plaintiff asks the Court to issue an order "enjoining

the

Suffolk

County

Police

Department

from

enforcing

the

now

repealed statute (Penal Law 240.35[1]) that prohibited loitering
in

public

places

for

the

pendency of this action.

purposes

of

begging"

(Pl. TRO/PI App. 5.)

during

the

Defendants argue

that this proposed order is too broad because it is not limited
specifically to Plaintiff and "[i] t

is possible that there are

currently ongoing prosecutions under the statute which arise out
of arrests which took place prior to the repeal of the statute."
(Flynn Aff.

,

14.)

Thus,

according to Defendants,

the Court is

required to abstain from interfering with such proceedings.

The

Court strongly disagrees.
"As the Supreme Court emphasized in Younger v. Harris,
federal
otherwise

courts

should

interfering

generally
in

ongoing
12

refrain
state

from

enjoining

proceedings.

or
This

principle of abstention is grounded in interrelated principles
of

comity

Judicial

and

federalism."

Conduct,

omitted) .

351

However,

Spargo

F.3d

65,

N.Y.

State

Comm'n

(2d

74

v.

Cir.

2003)

(citations

abstention is not required "when great and

immediate irreparable harm may result,
in

flagrantly

unconstitutional

enforced in bad faith."
F.3d 391, 393
37,

56,

such

a

action

Ct.

showing
can

746,

can

'have

made

no

or

statutes

Town Ct.

of Springfield,

Ed.
if

2d 669
the

reasonable

(1971)).

made,

56

"Generally,

party

bringing

expectation

of

N.Y., 64 F. Supp. 2d 184, 195 (E.D.N.Y. 1999)
18

being

the

state

obtaining

a

Brooklyn Inst. of Arts & Scis. v. City of

favorable outcome. '"

Fliegner,

are

(citing Younger v. Harris, 401 U.S.

27 L.

be

a state court is engaging

acts,

Hansel v.

(2d Cir. 1995)

91 S.

on

F. 3d 96,

103

can also

be

reasonable expectation of success,

even if there is a

(2d Cir.

(quoting Cullen v.

1994)) .

"It

if

the state action 'has been brought to retaliate for or to deter
constitutionally protected conduct.'"

Id.

(quoting Cullen,

18

F.3d at 103).
The
here.

Court

The

unconstitutional

finds

Statute
by

the

that

both

such

in

question

United

States

circumstances
here

District

exist

was

declared

Court

for

the

Southern District of New York in 1992, Loper, 802 F. Supp. 1029,
its

unconstitutionality was

1993,

Loper,

999

F.2d

affirmed by the
699,
13

its

Second Circuit

unconstitutionality

in
was

recognized

by

a

New

Hoff stead,

28 Mise.

York

State

3d 16,

Supreme

Court

905 N.Y. S. 2d 736,

in

June

2010,

and the New York

State Legislature repealed the statute in July 2010.

As was the

case with Plaintiff, any future arrests and prosecutions must be
dismissed because the challenged conduct is no longer illegal,
and

any

vacated

ongoing
on

prosecutions

appeal)

must

because

be

the

dismissed
statute

(or
was

else

be

declared

unconstitutional by both state and federal courts in New York.
Accordingly, Defendants' argument is entirely without merit.
CONCLUSION
For

the

foregoing

reasons,

preliminary injunction is GRANTED.

Plaintiff's motion

for

a

Defendants and the Suffolk

County Police Department are hereby ENJOINED from:
( 1)

( 2)

enforcing,
or
threatening
enforce,
the
now-repealed
240.35(1) and

or
attempting
N . Y.
PENAL LAW

to
§

arresting, threatening or attempting to arrest,
anyone for loitering,
remaining, or wandering
about for the purpose of begging.

Plaintiff is warned,

however,

that Defendants are not enjoined

from arresting individuals for violating other,

valid sections

of the Penal Law while panhandling.

N.Y. PENAL LAw §

See,

~·

240.20 (disorderly conduct); N.Y. PENAL LAW§ 240.26 (harassment in
the second degree); N.Y. PENAL LAw§ 140.05 (trespass).
The court certifies pursuant to 28 U.S.C. § 1915(a) (3)
that any appeal from this Order would not be taken in good faith
14

and therefore in forma pauperis status is denied for the purpose
of

any appeal.

See Coppedge v.

United States,

369 U.S.

438,

444-45, 82 S. Ct. 917, 8 L. Ed. 2d 21 (1962).
The Clerk of the Court is directed to send a

copy of

this Memorandum and Order to the prose Plaintiff.

SO ORDERED.

/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
Dated:

April
23
, 2012
Central Islip, NY

15