Adams v. City Of New York, et al

Filing 62

OPINION AND ORDER......The defendants October 24, 2016 motion for summary judgment is granted and the plaintiffs motion is denied. The Clerk of Court shall enter judgment for the defendants and close the case. (Signed by Judge Denise L. Cote on 12/21/2016) (gr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------- X
:
MICHAEL ADAMS,
:
:
Plaintiff,
:
:
-v:
:
CITY OF NEW YORK, POLICE OFFICER
:
CASTILLO, POLICE OFFICER DANIEL
:
O’NEILL, SERGEANT MICHAEL VENTO, JOHN :
DOE #1-3,
:
:
Defendants. :
:
-------------------------------------- X

15cv6741(DLC)
OPINION AND ORDER

APPEARANCES:
For the plaintiff:
Nicholas Mindicino
Stoll, Glickman & Bellina, LLP
475 Atlantic Avenue, 3rd Floor
Brooklyn, NY 11217
For the defendants:
Michael K. Gertzer
Zachary W. Carter
New York City Law Department
100 Church Street
New York, NY 10007
DENISE COTE, District Judge:
This case arises from the arrest of Michael Adams (“Adams”)
on November 16, 2014, during his protest against the demolition
of a Harlem landmark.

Adams has sued the City of New York

(“City”), Police Officers Jason Castillo (“Castillo”) and Daniel
O’Neill (“O’Neill”), and Sergeant Michael Vento (“Vento”) for
false arrest, malicious prosecution, and violation of his First

Amendment rights.

The plaintiff and defendants both move for

summary judgment under Rule 56, Fed. R. Civ. P.

For the reasons

that follow, the defendants’ motion is granted.
Background
The following facts are undisputed or taken in the light
most favorable to Adams, unless otherwise noted.

Adams authored

a book on the architectural history of Harlem, and has long
sought to preserve historically important buildings in Harlem.
On Sunday, November 16, 2014, at about 10:00 a.m., Adams went to
the Renaissance Ballroom and Casino (“Renaissance”), which was
located on 7th Avenue between 137th and 138th Street in Harlem,
to protest its planned demolition.

Adams was the sole

protester, although photographer Antwan Minter (“Minter”)
attended to document the protest.

The Renaissance was located

next to the Abyssinian Baptist Church (the “Church”), and around
one hundred and fifty tourists visiting the Church were on the
sidewalk in front of the Renaissance waiting to enter the
Church.

Adams wanted to conduct his demonstration before and

after a Sunday service at the Church so that as many people as
possible could see his protest.
Adams’ protest largely consisted of him chanting “Save
Harlem Now” and walking in a circle on the sidewalk.

Adams

concedes that he was “speaking in a loud voice,” which he
describes as “declaiming,” and that it was “louder than a usual
2

voice.”

He denies, however, that he was being unreasonably loud

or that he was blocking pedestrian or vehicular traffic.
Someone who Adams assumed to be the Deacon of the Church said
“You should stop this[.]

[W]hy are you doing this[?]” and other

Church members asked him “Why are you yelling?
screaming?

Why are you

Why are you here?”

At 11:19 a.m., a neighborhood resident called 911 to
complain that a man was “standing on the corner yelling” outside
of his apartment building and “waking up the whole building.”
The caller stated that “three or four residents have come out
here and asked him to be quiet because, you know, this is a
residential –- this is a neighborhood -- and he’s out here
yelling and waking up the neighborhood and we’re asking him to
be quiet.”

The caller asked the police to come and ask the man

to be quiet or to move.

Adams can be heard yelling in the

background of the call.

At times, his voice on the recording is

as loud as the voices of the caller and dispatcher.

The

dispatcher put out a radio call of a “disorderly” in front of
145 W. 138th Street who was “standing on the corner yelling.”
The dispatcher gave a description of the man.
Officers Castillo and O’Neill responded to the dispatcher’s
call and arrived at the scene at approximately 11:28 a.m.
officers observed Adams protesting by chanting “save Harlem

The

now,” spoke with Adams, and then requested that their
3

supervisor, Vento, come to the scene.

After Vento arrived and

observed Adams’ protest, the three officers approached Adams,
and according to Adams said “there had been a [noise] complaint”
and asked “if I would not mind continuing my protest across the
street.”

Adams responded that he “understood of New York’s

noise ordinance that you had to be over a certain number of
decibels and . . . that you could demonstrate on any public
sidewalk you wanted to and that’s it.”

The officers responded

that “there’s been a complaint and if you won’t go across the
street we’ll have to arrest you,” to which Adams responded
“[W]ell then, you have to arrest me because I’m not doing
anything wrong.” 1
As the officers placed Adams under arrest and put him in
handcuffs, Adams continued his chant at the same volume.

The

officers took Adams to the police station, where two summonses
were issued for disorderly conduct in violation of NYPL
§§ 240.20(2) (unreasonable noise) and (4) (disturbing a lawful
assembly).

Adams was released at approximately 1:00 p.m.

Vento testified that he told Adams, “[S]ir, if you cross the
street, you could demonstrate across the street in a safe manner
so people can go to church.” Castillo testified that he “heard
Sergeant Vento give Mr. Adams an order to stop protesting the
shouting and screaming to the people going into the church and
move over to the next corner.” O’Neill testified that the
officers “instructed him that you can’t yell like this on a
corner. You’re bothering people and . . . he was instructed to
go on the other side of the street to be quiet with a sign with
no stick.”
1

4

Before Adams was required to appear in court the summons were
dismissed.
Immediately after Adams’ arrest, Franklyn Mackey, who is
affiliated with the Church, told Castillo that Adams was
“shouting at people on the corner ‘save Harlem now,’ blocking
tourists and people and church goers from lining up going to
church and disturbing people from enjoying their day.”

After

the November 16 arrest, Adams protested the demolition of the
Renaissance every Sunday until it was torn down around Easter.
Adams testified that these protests followed the “same form,”
except that he stood across the street from the location of the
November 16 protest, and while the police arrived three times
during his protests, he was not arrested.
Adams brings three causes of action under 42 U.S.C. § 1983
for false arrest, malicious prosecution, and the violation of
his First Amendment rights. 2

He also brings a state law claim

for false arrest and illegal imprisonment and contends that the
City is liable for those claims under a theory of respondeat
superior.

The original complaint was filed on August 25, 2015

and amended on June 9 to include O’Neill and Vento.

Both the

plaintiff and defendants filed motions for summary judgment on

Adams’ claims for municipal liability under Monell were
dismissed on March 22, 2016. Adams v. City of New York, No.
15cv6741(DLC), 2016 WL 1169520 (S.D.N.Y. Mar. 22, 2016).
2

5

October 24, 2016.

The motions became fully submitted on

November 17.
Discussion
Summary judgment may not be granted unless all of the
submissions taken together “show[] that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”

Fed. R. Civ. P. 56(a).

“Summary

judgment is appropriate where the record taken as a whole could
not lead a rational trier of fact to find for the non-moving
party.”

Smith v. Cty. of Suffolk, 776 F.3d 114, 121 (2d Cir.

2015) (citation omitted).

The moving party bears the burden of

demonstrating the absence of a material factual dispute.
Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451, 456
(1992); Gemmink v. Jay Peak Inc., 807 F.3d. 46, 48 (2d Cir.
2015).
Once the moving party has asserted facts showing that the
non-movant’s claims cannot be sustained, “the party opposing
summary judgment may not merely rest on the allegations or
denials of his pleading; rather his response, by affidavits or
otherwise as provided in [Rule 56], must set forth specific
facts demonstrating that there is a genuine issue for trial.”
Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009) (citation
omitted).

“[C]onclusory statements, conjecture, and

inadmissible evidence are insufficient to defeat summary
6

judgment,” Ridinger v. Dow Jones & Co. Inc., 651 F.3d 309, 317
(2d Cir. 2011) (citation omitted), as is “mere speculation or
conjecture as to the true nature of the facts.”

Hicks v.

Baines, 593 F.3d 159, 166 (2d Cir. 2010) (citation omitted).
“An issue of fact is genuine and material if the evidence is
such that a reasonable jury could return a verdict for the
nonmoving party.”

Cross Commerce Media, Inc. v. Collective,

Inc., 841 F.3d 155, 162 (2d Cir. 2016).
Adams’ three federal claims are brought pursuant to 42
U.S.C. § 1983 and the relevant provisions of the United States
Constitution.

Section 1983 provides a cause of action for

damages against “[e]very person who, under color of any statute
. . . of any State . . . subjects, or causes to be subjected,
any citizen . . . to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws.”

“To state

a claim under § 1983, a plaintiff must allege that defendants
violated plaintiff’s federal rights while acting under color of
state law.”

McGugan v. Aldana-Bernier, 752 F.3d 224, 229 (2d

Cir. 2014).
I.

False Arrest and Imprisonment
The plaintiff and defendants move for summary judgment on

the false arrest and imprisonment claims.

A false arrest claim

under either federal or New York law requires a plaintiff to
prove that “(1) the defendant intended to confine the plaintiff,
7

(2) the plaintiff was conscious of the confinement, (3) the
plaintiff did not consent to the confinement, and (4) the
confinement was not otherwise privileged.”

Liranzo v. United

States, 690 F.3d 78, 95 (2d Cir. 2012) (citation omitted); see
also Simpson v. City of New York, 793 F.3d 259, 265 (2d Cir.
2015).

“To avoid liability for a claim of false arrest, an

arresting officer may demonstrate that either (1) he had
probable cause for the arrest, or (2) he is protected from
liability because he has qualified immunity.”

Simpson, 793 F.3d

at 265.
“Probable cause is determined on the basis of facts known
to the arresting officer at the time of the arrest.”

Shamir v.

City of New York, 804 F.3d 553, 557 (2d Cir. 2015) (citation
omitted).

The probable cause defense to a false arrest claim

requires only that there was probable cause for an arrest; it
does not require that the officer had probable cause to arrest
for the specific offense charged.

Marcavage v. City of New

York, 689 F.3d 98, 109-10 (2d Cir. 2012).
“[Q]ualified immunity provides a broad shield . . . to
ensure that those who serve the government do so with the
decisiveness and the judgment required by the public good.”
Zalaski v. City of Hartford, 723 F.3d 382, 389 (2d Cir. 2013)
(citation omitted).

“Qualified immunity protects public

officials performing discretionary functions from personal
8

liability in a civil suit for damages insofar as their conduct
does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.”
Fusto, 804 F.3d at 546 (citation omitted).

Morse v.

An officer “is

entitled to qualified immunity against a suit for false arrest
if he can establish that he had arguable probable cause to
arrest the plaintiff.”

Garcia v. Does, 779 F.3d 84, 92 (2d Cir.

2015) (citation omitted).

“Arguable probable cause exists if

either (a) it was objectively reasonable for the officer to
believe that probable cause existed, or (b) officers of
reasonable competence could disagree on whether the probable
cause test was met.”

Id. (citation omitted).

Courts “look to

the information possessed by the officer at the time of arrest”
when determining whether an officer’s conduct was objectively
reasonable.

Id. (citation omitted).

The defendants identify NYPL §§ 240.20(2), (4) and (5) as
the statutory sections that provided probable cause for Adams’
arrest. 3

This statute provides, in relevant part:

Defendants’ motion to dismiss Adams’ complaint was predicated
on his violation of NYPL § 240.20(6), which makes it unlawful to
“with intent to cause public inconvenience, annoyance or alarm,
or recklessly creating a risk thereof . . . congregate[] with
other persons in a public place and refuse[] to comply with a
lawful order of the police to disperse.” The complaint had
alleged that Adams was protesting on November 16 with others.
After discovery revealed that the plaintiff protested alone on
that day, and Adams removed the allegation that others were
protesting with him, § 240.20(6) was no longer relevant.
3

9

A person is guilty of disorderly conduct when, with
intent to cause public inconvenience, annoyance or
alarm, or recklessly creating a risk thereof . . .
2. He makes unreasonable noise; . . .
4. Without lawful authority, he disturbs any lawful
assembly or meeting of persons; or
5. He obstructs vehicular or pedestrian traffic[.]
Id.
The offense of disorderly conduct has three elements: “(i)
the defendant’s conduct must be ‘public’ in nature, (ii) it must
be done with ‘intent to cause public inconvenience, annoyance or
alarm’ or with recklessness as to ‘a risk thereof,’ and (iii) it
must match at least one of the descriptions set forth in the
statute.”
Cir. 2001).

Provost v. City of Newburgh, 262 F.3d 146, 157 (2d
“[E]vidence of actual or threatened public harm

(‘inconvenience, annoyance or alarm’) is a necessary element of
a valid disorderly conduct charge.”

People v. Johnson, 22

N.Y.3d 1162, 1164 (2014).
In determining whether the person who was arrested
possessed the requisite intent courts consider “many factors,
including the time and place of the episode under scrutiny; the
nature and character of the conduct; the number of other people
in the vicinity; whether they are drawn to the disturbance and,
if so, the nature and number of those attracted; and any other
relevant circumstances.”

People v. Baker, 20 N.Y.3d 354, 360
10

(2013) (citation omitted).
An assessment of intent frequently depends on
circumstantial evidence. But unlike at trial, where
circumstantial evidence must support a finding of
culpable intent beyond a reasonable doubt, a probable
cause determination, and thus an arguable probable
cause determination, can be made on substantially less
evidence. Moreover, because the practical restraints
on police in the field are greater with respect to
ascertaining intent, the latitude accorded to officers
considering the probable cause issue in the context of
mens rea crimes must be correspondingly great.
Zalaski, 723 F.3d at 393 (citation omitted).
The officers are entitled to qualified immunity with
respect to the false arrest claims because they had arguable
probable cause to arrest Adams for “mak[ing] unreasonable noise”
in violation of NYPL § 240.20(2).

It is undisputed that Adams’

conduct was public in nature, as it was on a public street and
directed at members of the public waiting in line to visit the
Church.

Based on undisputed facts, the officers also had

sufficient circumstantial evidence to determine that Adams
either intended to cause, or recklessly created a risk of
causing, public inconvenience, annoyance or alarm: The officers
were aware that a complaint had been made about a man “standing
on the corner yelling,” could observe that Adams had chosen a
location in front of a large, captive audience waiting to attend
church services, heard Adams refuse to move his protest across
the street, and could hear that he was using a “loud” voice and
repetitive three-word chant.
11

While the parties dispute whether Adams’ chant was
“unreasonably” loud, the officers were not unreasonable in
believing that the noise was unreasonably loud.

Their arrival

at the location of the protest was prompted by a noise
complaint, Adams admits he was “loud,” and they had the
opportunity to listen to him chant before and during his arrest.
At the very least, officers of reasonable competence could
disagree as to whether the volume was unreasonable.
New York law’s immunity doctrine is similar to that under
§ 1983, and therefore the officers are also entitled to
qualified immunity as to the state law claim for false arrest
and illegal imprisonment.
F.3d 76, 88 (2d Cir. 2007).

See Jenkins v. City of New York, 478
Further, because the officers are

entitled to qualified immunity, Adams’ respondeat superior
theory of liability as to the City also fails, as it is
derivative of the claims against the officers.
Adams makes three arguments in opposition to the
defendants’ motion for summary judgment on the false arrest
claim.

First, Adams argues that his voice was not “unreasonably

loud.”

“The term ‘unreasonable noise’ means a noise of a type

or volume that a reasonable person, under the circumstances,
would not tolerate.”

Provost, 262 F.3d at 159.

Adams admits

that he was chanting in a loud voice intended to communicate his
protest to those attending the Church service, and it is
12

undisputed that several of those persons approached Adams to
inquire why he was “yelling” and “screaming,” that a
neighborhood resident called 911 to complain about Adams’
“yelling,” and that his chanting was loud enough to be heard
clearly in the 911 tape.

This is sufficient to demonstrate that

there is no genuine dispute that Adams’ chanting was at a volume
that reasonable persons would not (and did not) tolerate in the
circumstances.
Adams next argues that the defendants should not be able to
rely in opposing his motion or in support of their own motion on
the complaint that a Church member made to the police about the
volume of Adams’ chanting since the officers were not aware of
the complaint at the time of the arrest, and did not speak to
Mackey to record his complaint until after Adams’ arrest.

The

defendants have shown, however, that they had arguable probable
cause to arrest Adams even without regard to this complaint.
Finally, Adams argues that he did not intend to disturb
anyone, and that the officers understood that his intent was to
exercise his First Amendment rights.

To violate NYPL § 240.20 a

person must intend to cause or recklessly create a risk of
causing public “inconvenience” or “annoyance.”

There is,

however, no requirement in the statute that this be a person’s
sole intent.

Cf. Ostrowski v. Atl. Mut. Ins. Companies, 968

F.2d 171, 180 (2d Cir. 1992) (to meet burden plaintiff must show
13

“animus was at least one of the ‘motivating’ factors in the
employment decision; he or she need not show that it was the
sole reason”).

The fact that Adams had other motivations behind

his actions does not negate that there was arguable probable
cause to conclude that Adams was engaging in behavior with the
intent to cause public inconvenience or annoyance, or at the
very least that he acted recklessly in creating a risk of public
inconvenience or annoyance.
II.

Malicious Prosecution

The plaintiff and defendants move for summary judgment on
the malicious prosecution claim brought under 18 U.S.C. § 1983.
“To establish a malicious prosecution claim . . . a plaintiff
must prove (1) the initiation or continuation of a criminal
proceeding against plaintiff; (2) termination of the proceeding
in plaintiff’s favor; (3) lack of probable cause for commencing
the proceeding; and (4) actual malice as a motivation for
defendant’s actions.”

Stampf v. Long Island R. Co., 761 F.3d

192, 198 (2d Cir. 2014) (citation omitted).

Additionally, to

maintain a § 1983 claim for malicious prosecution under the
Fourth Amendment, there must be a deprivation of liberty
effected “pursuant to legal process,” because “the essence of
malicious prosecution is the perversion of proper legal
procedures.”

Singer v. Fulton Cty. Sheriff, 63 F.3d 110, 117

(2d Cir. 1995) (citation omitted); see Heck v. Humphrey, 512
14

U.S. 477, 484 (1994).

An arrest does not serve as the predicate

deprivation of liberty where it occurred prior to arraignment
and without a warrant, because it is not “pursuant to legal
process.”

Singer, 63 F.3d at 117 (citation omitted).

“[T]o be

actionable under section 1983 there must be a post-arraignment
seizure, the claim being grounded ultimately on the Fourth
Amendment’s prohibition of unreasonable seizures.”

Swartz v.

Insogna, 704 F.3d 105, 112 (2d Cir. 2013).
“[T]he existence of probable cause is a complete defense to
a claim of malicious prosecution.”

Stansbury v. Wertman, 721

F.3d 84, 94-95 (2d Cir. 2013) (citation omitted).

“The probable

cause standard in the malicious prosecution context is slightly
higher than the standard for false arrest cases.”

Id. at 95.

“Probable cause, in the context of malicious prosecution, has
. . . been described as such facts and circumstances as would
lead a reasonably prudent person to believe the plaintiff
guilty.”

Id. (citation omitted).

The deprivation of liberty inherent in Adams’ arrest and
brief detention is akin to the tort of false arrest, addressed
above, and does not rise to the level of malicious prosecution.
See Singer, 63 F.3d at 117.

The arrest was not pursuant to a

warrant and therefore cannot be a deprivation of liberty
“pursuant to legal process.”

Further, it is undisputed that the

summonses against Adams were dismissed, and that Adams was never
15

required to appear in court.

Thus, there was no “post-

arraignment seizure” to violate Adams’ constitutional rights.
Summary judgment for the defendants is granted on the malicious
prosecution claim.
III. First Amendment
Finally, the plaintiff and defendants move for summary
judgment on Adams’ First Amendment claim.

Adams contends that

NYPL § 240.20(2) is unconstitutional as applied to him. 4
The First Amendment provides that “Congress shall make no
law . . . abridging the freedom of speech.”
protections, while broad, are not absolute.”
465 F.3d 46, 56 (2d Cir. 2006).

“First Amendment
Jones v. Parmley,

“The preferred position of

freedom of speech in a society that cherishes liberty for all
does not require legislators to be insensible to claims by
citizens to comfort and convenience.

To enforce freedom of

speech in disregard of the rights of others would be harsh and
arbitrary in itself.”

Kovacs v. Cooper, 336 U.S. 77, 88 (1949).

In assessing this First Amendment claim, a court should
first consider whether Adams was engaged in activity protected
by the First Amendment, whether the activity occurred in a
traditional public forum, and if the restriction on speech was

Adams does not assert that the defendants retaliated against
him in violation of his First Amendment rights. See, e.g.,
Curley v. Vill. Of Suffern, 268 F.3d 65, 73 (2d Cir. 2001).
4

16

unrelated to content.

Marcavage, 689 F.3d at 103.

If a

plaintiff is
engaged in expressive activity in a public forum and
the regulation was content neutral, . . . restrictions
are permissible if they [1] are justified without
reference to the content of the regulated speech, [2]
are narrowly tailored to serve a significant
governmental interest, and [3] leave open ample
alternative channels for communication of the
information.
Id. at 104 (citation omitted).

“For a content-neutral time,

place, or manner regulation to be narrowly tailored, it must not
burden substantially more speech than is necessary to further
the government’s legitimate interests.”

McCullen v. Coakley,

134 S. Ct. 2518, 2535 (2014) (citation omitted).
The requirement that ample alternative channels exist
does not imply that alternative channels must be
perfect substitutes for those channels denied to
plaintiffs by the regulation at hand; indeed, were we
to interpret the requirement in this way, no
alternative channels could ever be deemed ample.
Mastrovincenzo v. City of New York, 435 F.3d 78, 101 (2d
Cir. 2006) (citation omitted).
Adams was protesting the demolition of the Renaissance on a
public sidewalk.

It is undisputed that he was engaged in

protected speech, and a sidewalk is a traditional public forum.
Marcavage, 689 F.3d at 104 (2d Cir. 2012).

It is also

undisputed that the restriction on speech imposed through NYPL
§ 240.20(2) is content neutral.

The statute prohibits a level

of noise which a reasonable person could not be expected to
17

tolerate, without regard to the content of the speech.
For the reasons already discussed, undisputed facts
establish that the statute was not unconstitutional as applied
to Adams.

Those facts include the volume of Adams voice, which

he admits was loud, and which was so loud that it prompted a 911
call by a neighborhood resident, complaints to Adams by those
waiting to attend Church services, and Mackey’s complaint.

As

was true in Costello v. City of Burlington, 632 F.3d 41 (2d Cir.
2011), Adams’ “noise impinged on the use of the neighborhood by
others with equal claim: residents in adjacent apartments,”
tourists, worshippers, and Church officials.

Id. at 46.

In Costello, the police responded to a noise complaint by a
store owner at a pedestrian mall.

The officer noticed that

“Costello’s voice stood out as a singular sound much louder than
anything else.”

Id. at 44.

The officer approached Costello and

asked that he lower his voice.

When Costello responded that he

had a “right to preach the gospel with a . . . loud voice,” the
officer issued him a written warning for violating the local
noise control ordinance, which prohibits “unreasonable noise.”
Id.

In affirming the district court’s grant of summary judgment

in favor of the officer, the Second Circuit held that the noise
ordinance as applied to Costello did not burden substantially
more speech than was necessary to achieve the city’s goal of
curbing excessive noise, and that Costello had alternative
18

means, namely he could have lowered his voice.

Id. at 46.

Finally, the time, place, and manner restriction as applied
to Adams was narrowly tailored to meet a substantial government
interest.

The statute was applied to Adams without regard to

the content of his speech, but rather, with regard to the
volume.

The restriction also serves a significant governmental

interest, because the “[G]overnment ha[s] a substantial interest
in protecting its citizens from unwelcome noise.”
(citation omitted).

Id. at 45

Adams had ample alternatives for speech, in

that he could have lowered his voice or continued his protest
across the street, which the defendants asked him to do.

While

these might not have been perfect substitutes, reasonable
alternatives need not be perfect substitutes.
In any event, the defendants are entitled to qualified
immunity as to the First Amendment claim.

While Adams has a

right to engage in speech in a public forum, he does not have an
unlimited right to do so as loudly as he would like.
NYPL § 240.20(2) is a valid and content-neutral restriction on
speech.

The officers had arguable probable cause to arrest

Adams for a violation of that statute and there is no evidence
that they were motivated at any point by the content of Adams’
chant.

Therefore, the defendants are entitled to qualified

immunity.
Adams cites several cases in opposition to the defendants’
19

motion for summary judgment.

Adams first argues that

restrictions of speech made purely by a human voice raise
different issues than restrictions on amplified sound, citing
Kovacs v. Cooper, 336 U.S. 77, 89 (1949).

But, an unamplified

human voice may also create public inconvenience or annoyance
and may be regulated.

See Costello, l32 F.3d at 46.

Adams relies as well on Deegan v. City of Ithaca, 444 F.3d
135 (2d Cir. 2006).

In Deegan, the Second Circuit found that a

regulation restricting “unreasonable noise,” interpreted to
prohibit any noise that can be heard “25 feet away,” was
unconstitutional as applied to a street preacher because it
would also make illegal activities such as footsteps,
conversation, and the sounds of a child playing.

Id. at 143.

A

single store employee had complained to the police about Deegan.
Id. at 138.

In contrast, Adams’ admittedly loud chanting

rousted neighborhood residents from their beds, prompted a 911
call, and prompted those waiting to attend Church services to
complain to Adams and Minter.

These facts find no parallel in

Deegan.
Adams finally argues that even if he violated the
disorderly conduct statute, his conduct is still protected by
the First Amendment, citing Edwards v. South Carolina, 372 U.S.
229 (1963).

In Edwards, African American citizens in “small

groups, walked single file or two abreast in an orderly way
20

through the [South Carolina State House] grounds, each group
carrying placards” to protest against discrimination.
231.

Id. at

The Supreme Court noted that the petitioners’ conduct

might constitute a breach of the peace under state law, but
overturned their criminal convictions.

Id. at 235.

The Court

observed that the protest was an exercise of First Amendment
rights “in their most pristine and classic form,” and that the
charged offense was so general as to be “not susceptible of
exact definition.”

Id. at 234-35.

It concluded that the “the

Fourteenth Amendment does not permit a State to make criminal
the peaceful expression of unpopular views.”

Id. at 237.

Here,

there is no evidence, and Adams does not contend, that any of
the numerous complainants or the three officers acted in
response to Adams’ message as opposed to the volume at which
Adams delivered the message.
Conclusion
The defendants’ October 24, 2016 motion for summary
judgment is granted and the plaintiff’s motion is denied.

The

Clerk of Court shall enter judgment for the defendants and close
the case.
Dated:

New York, New York
December 21, 2016
__________________________________
DENISE COTE
United States District Judge
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