Berg v. Village of Scarsdale et al

Filing 6

OPINION AND ORDER: Before the Court is Plaintiff Robert J. Berg's application for a preliminary injunction and temporary restraining order. The Court has carefully reviewed Plaintiff's submissions and considered the arguments m ade by both parties at a show cause hearing held on February 6, 2018 at the United States Courthouse, 300 Quarropas St., White Plains, NY 10601. For the reasons set forth herein, Plaintiff's application is GRANTED. It is ORDERED that Defen dants are enjoined from enforcing the provisions of Section 256-1 of the Scarsdale Village Code or taking any other actions against Plaintiff and other persons with respect to posting political lawn signs in the Village of Scarsdale right of way in front of private homes, so long as said political lawn signs pose no safety or traffic hazards. (Signed by Judge Nelson Stephen Roman on 2/6/2018) (mro)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
Robert J. Berg.,

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Plaintiff,
-against-

OPINION AND ORDER
18-cv-1002 (NSR)

Village of Scarsdale and Village of
Scarsdale Police Department.,
Defendants.

NELSON S. ROMAN, United States District Judge
Before the Court is Plaintiff Robert J. Berg's application for a preliminary injunction and
temporary restraining order. The Comt has carefully reviewed Plaintiffs submissions 1 and
considered the arguments made by both parties at a show cause hearing held on February 6, 2018
at the United States Courthouse, 300 Quarropas St., White Plains, NY 10601. For the following
reasons, Plaintiffs application is GRANTED.
The Court applies the same standard to Defendant's applications for a preliminary
injunction and a temporary restraining order. Local 1814, int'/ Longshoremen 's Ass 'n, AFL-CIO

v. New York Shipping Ass'n, Inc., 965 F.2d 1224, 1228 (2d Cir. 1992) (the "standards which
govern consideration of an application for a temporary restraining order [] are the same standards
as those which govern a preliminary injunction."); Spencer Trask Software & Info. Servs., LLC v.

RPost Int'/ Ltd., 190 F. Supp. 2d 577,580 (S.D.N.Y. 2002) (same). It is well established that in
order to grant Plaintiffs applications, Plaintiff must show: (1) irreparable harm absent injunctive
relief and (2) "either ... that it is likely to succeed on the merits of the action, or ... that there
are sufficiently serious questions going to the merits to make them a fair ground for litigation,

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The Court notes that Defendants failed to submit any written opposition to Plaintiff's application for a preliminary
injunction.

provided that the balance of hardships tips decidedly in favor of the moving party." Mullins v.

City ofNew York, 626 F.3d 47, 52-53 (2d Cir. 2010) (citing Citigroup Global Mkts., Inc. v. VCG
Special Opportunities Master Fund Ltd., 598 F.3d 30, 34---35 (2d Cir. 2010)). Where, however,
"a paity seeks an injunction that will affect governmental action taken in the public interest
pursuant to a statutory scheme, the plaintiff must typically show a likelihood of success on the
merits-a serious question going to the merits is usually insufficient .... " Id.
The Court assumes the parties' familiarity with the facts underlying this motion. In
essence, Plaintiff, a resident of the Village of Scarsdale, brings this action pursuant to 42 U.S.C.

§ 1983 challenging the constitutionality of Section 256-1 of the Scarsdale Village Code. Section
256-1 provides, in relevant part, that residents may not "obstruct any street, public easement or
other public place without first securing a written permit from the Village Engineer and
complying with such regulations affecting obstructions as the Village Engineer may prescribe."
(Aff. of Robert J. Berg in Supp. ofTRO and Prelim. Inj. at 48.) Because the Village of Scarsdale
maintains "ownership of[] paved roads [and] thirteen feet (13') on each side of [each] paved
road," (Id.), the Village has interpreted Section 256-1 as allowing for the removal of
unauthorized political signs from the front lawns of residents within the thi1teen foot Village
"right-of-way." (Id.) Plaintiff claims, and the Village apparently does not contest, that the
Village Police Department has in fact removed such signs pursuant to Section 256-1. (See Id. at
47-52.) Plaintiff contends that the provision, thus, unconstitutionally burdens, and has chilled
the exercise of, his First and Fomteenth Amendment right to free speech.
As a preliminary matter, this Court finds that while Plaintiff has not yet personally faced
enforcement, he neve1theless has standing to challenge the provision. Courts should "assess pre-

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enforcement First Amendment claims ... under somewhat relaxed standing and ripeness rules."

Nat'/ Org.for Marriage, Inc. v. Walsh, 714 F.3d 682,689 (2d Cir. 2013). Accordingly:
[a] plaintiff bringing a pre-enforcement facial challenge against a statute need not
demonstrate to a certainty that it will be prosecuted under the statute to show injury, but
only that it has an actual and well-founded fear that the law will be enforced against it. The
alleged danger of the statue is, in large measme, one of self-censorship; a harm that can be
realized even without an actual prosecution. When the Plaintiff has alleged an intention to
engage in a course of conduct arguably affected with a constitutional interest, but
proscribed by a statute, and there exists a credible tlu-eat of prosecution thereunder, that
plaintiff should not be required to await and undergo a criminal prosecution as the sole
means of seeking relief.

Id at 689-90 (internal quotation marks and citations omitted).
Here, Plaintiff has established an actual and well-founded fear that Section 256-1 will be
enforced against him ifhe exercises his First Amendment right to place political signs on his
lawn, which is almost entirely within the thirteen foot Village "right-of-way." (Aff. ofRobe1t J.
Berg in Supp. ofTRO and Prelim. Inj. at 44.) Plaintiff even received confu-mation of the
Village's position that it is entitled to remove such signs and even commence criminal
proceedings against residents who post them pmsuant to New York Penal Law§ 145.30. (See Id
at 48.) Plaintiff has, thus, shown a sufficiently credible threat of enforcement and prosecution to
satisfy standing and ripeness considerations.
Plaintiff has also successfully satisfied the showing of irreparable harm absent injunctive
relief. As the Supreme Court has held, "[t]he loss of First Amendment freedoms, for even
minimal periods of time, unquestionably constitutes irreparable injmy." Elrod v. Burns, 427 U.S.
347, 373 (1976); see also Mitchell v. Cuomo, 748 F.2d 804,806 (2d Cir. 1984) ("[W]hen an
alleged deprivation of a constitutional right is involved most courts hold that no fu1ther showing
of irreparable injury is necessary." (internal quotation marks and citations omitted)). Indeed, the
Second Circuit has elaborated that "[t]he harm is particularly irreparable where, as here, a

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plaintiff seeks to engage in political speech, as timing is of the essence in politics and a delay of
even a day or two may be intolerable." New York Progress & Prof. PAC v. Walsh, 733 F.3d 483,
486 (2d Cir. 2013) (internal quotation marks and citations omitted). Time is particularly of the
essence in the present action, where the highly contested school bond referendum will take place
in three days. The only remaining. consideration is, therefore, whether Plaintiff has demonstrated
that he is likely to succeed on the merits ofthis action.
With regard to the merits of Plaintiffs claims, both the Supreme Court and the Second
Circuit have previously addressed decidedly similar issues. In City ofLadue v. Gilleo, 512 U.S.
43 (1994), the Supreme Court struck down a city regulation that prohibited residential signs,
much like the ones at issue in the present action, as violative of the First Amendment. The Comt
reasoned that "residential signs have long been an important and distinct medium of expression"
with no practical substitute. Id. at 55. Where a regulation forecloses an entire medium of
expression, the Court elaborated, "the danger [it] pose[s] to the freedom of speech is readily
apparent~by eliminating a common means of speaking, such measures can suppress too much
speech." Id. In Lusk v. Vil/. ofCold Spring, 475 F.3d 480 (2d Cir. 2007), the Second Circuit took
the Court's ruling one step further and invalidated an ordinance that required prior approval,
which could take up to seventy days to procure, before residents could post signs in front of their
homes. Id. Although the ordinance in Lusk did not institute an outright prohibition on residential
signs, the Second Circuit ruled that it neve1theless constituted "an impermissibly broad ban on
such speech." Id at 492. Indeed, the Circuit Court found that requiring residents to obtain prior
approval before erecting residential signs, "no less than the [ordinance] at issue in City ofLadue,
almost completely foreclose[ s] a venerable means of communication that is both unique and

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important, at least pending ... approval [of the signs]." Id at 491 (internal quotation marks and
citations omitted).
The regulatory scheme invalidated by the Second Circuit in Lusk is largely
indistinguishable from the ordinance presently at issue. For residents like Plaintiff, whose entire
lawn space falls within the Village's "right-of-way," Section 256-1 constitutes a near complete
foreclosure of an impmtant means of communication. Indeed, Section 256-1 does not place any
time limitations on the approval process, allowing for an indefinite restriction on residents'
political expression-which is undoubtedly even more troubling than the seventy-five day
approval period invalidated by the Second Circuit in Lusk.
The Court is mindful that both City ofLadue and Lusk involved residential signs on
private prope1ty, whereas Section 256-1 regulates the placement of signs on what is ostensibly
property owned by the Village of Scarsdale. However, to the extent that the Section 256-1
permits the Village to police the posting oflawn signs in front of private homes, the First
Amendment concerns articulated in Lusk and City ofLadue remain all too relevant: the Village
may not indefinitely foreclose such a historically important means of expression for its residents.

See City ofLadue, 512 U.S. at 54. ("Signs that react to a local happening or express a view on a
controversial issue both reflect and animate change in the life of a community. Often placed on
lawns or in windows, residential signs play an important part in political campaigns .... They
may not afford the same opportunities for conveying complex ideas as do other media, but
residential signs have long been an important and distinct medium of expression.")
Accordingly, for the foregoing reasons, Plaintiffs application is GRANTED.
It is ORDERED that Defendants are enjoined from enforcing the provisions of Section
256-1 of the Scarsdale Village Code or taking any other actions against Plaintiff and other

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persons with respect to posting political lawn signs in the Village of Scarsdale right of way in
front of private homes, so long as said political lawn signs pose no safety or traffic hazards.

Dated:

February~, 2018
White Plains, New York

SO ORDERED:

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NELSONS. ROMJ\N
United States DistrictJudge

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