Assume the Position

Monday, February 10, 2003
 
They Can Rally, They Can't March. Judge Barbara S. Jones, United States Court, Southern District of New York, has ruled in favor of NYC's decision to allow United for Peace and Justice to hold their anti-war rally, but not allow them to march past the UN. The ruling is here (121kB, PDF).


UPDATE: VINDICATION (and some fun with inline styles)

The various press reports stress the "security" and "public safety" issues for the ruling, confirming Diane's resasoning and giving her justification to say, "As for me, it smells like...victory."

As for my take on the leadtime, Judge Jones spends ample space in her decision addressing how the "short notice" and poor planning by United for Peace and Justice was behind the City's determination that the march was unsupportable.

[All internal cites removed, footnotes [inline] , bold added, and portions of my prior comments in boxes with original formatting.]

A. The City’s Ban on Plaintiff’s Request to March in front of the United Nations

Because the area surrounding the United Nations headquarters complex present heightened and somewhat different security concerns, the Court turns first to the City’s denial of a permit to march past the United Nations. The Court notes initially that the United Nations Headquarters is uniquely sensitive among locations in New York City because of its function, our country’s treaty obligations and its history as a terrorist target…

…Large marches past the UN are exceedingly rare.

…the complaint states, "On at least three prior occasions the City has permitted huge marches to take place on First Avenue past the United Nations." Then comes the list of those three occasions. Their purpose is unimportant, what matters is there were only three in twenty years (1994, 1988 and 1982).

While it is true that parades and demonstrations, indeed significant ones, have been permitted on First Avenue past the United Nations, the most recent one was in l994 prior to the events of September 11, 2001.

This Court finds that the City’s refusal to permit the march proposed in this case – past the United Nations – serves a significant governmental interest, the peace and security of the United Nations Headquarters and the U.S. Mission.8 [The United States Mission is on the west side of First Avenue opposite the United Nations and its ability to conduct its affairs and to be secure is an additional consideration in assessing security concerns posed by the proposed march.]

The Court finds no evidence that the restriction is being applied or justified in any way because of the anti-war message of the marchers. Moreover, the restriction does not prevent protestors from speaking from a platform at a nearby location (49th and First Avenue) and from demonstrating on Dag Hammarskjold Plaza, at 47th Street between First and Second Avenues. This location is at the very northern tip of the United Nations complex and is highly visible from the United Nations9 [This litigation has focused solely on the constitutionality of restricting a march past the United Nations in the manner proposed by the organizers of this event . The Court expresses no view on the constitutionality of a ban or other restrictions on any other type of demonstration.]

B. The City’s Decision to Ban a March

The City seeks to ban Plaintiff not only from marching in front of the United Nations, but also from marching anywhere in the City. Although the same specific security concerns surrounding the United Nations do not apply to the streets of New York, the City maintains that a ban on marching is necessary in this case, as Plaintiff’s proposed march poses an unreasonable risk to public safety.

Municipal support for a march requires much more manpower than a stationary rally or protest, which means a greater amount of schedule shifting and overtime, which would generally require greater leadtime to accommodate, which seems to be a valid reason why NYC is willing to permit the latter but not the former.

I think the "public safety" aspect could have been addressed and the march allowed if they had started working the permit process much earlier.

The Court has considered the testimony of Chief Esposito in support of this assertion and finds the following facts. Any event involving a large number of people presents a risk to safety and security. This risk can be reduced to a reasonable one through planning, security measures and policing. The Court credits the city’s assessment that the NYPD could not responsibly plan security for a march of this magnitude with only the limited amount of information that the organizers have offered the NYPD at this late point in the planning process. While it could prepare for a march of much smaller size with limited information and on short notice,10 [Chief Esposito remarked that: [n]ormally we are talking 1,000, 1,500, 2,000. If you overestimate and 1,000 come or you underestimate and 2,500 come, it is not ... too much of a problem to the police department. If you tell me that 50[,000] to 100,000 are coming and you are trying to get a lot more and 150,000 come, I have a very, very big problem.] with the large numbers expected in this case, it believes it can better protect public safety by permitting a rally as opposed to a moving procession.

…The NYPD is routinely able to handle large marches when given plenty of notice.

…the complaint states, "The NYPD routinely issues permits for marches in midtown Manhattan that are similar in size to the plaintiff's planned event and in some instances far larger." Then comes the supporting list of six large parades, and every one is an annual event. I think the NYPD knows there is a Thanksgiving Day Parade every year and plans accordingly.

Plaintiff argues to this Court that the City has denied Plaintiff the right to march specifically because it is a protest march as opposed to a “cultural” parade. Plaintiff points to the City’s issuance of parade permits in the past year for the Dominican Day parade, which had 100,000 participants; the Puerto Rican Day parade, which had 100,000 participants; and the Saint Patrick’s Day parade, which had 120,000 participants. Plaintiff maintains that the City’s decision to deny it a large scale march when it regularly grants permits for cultural events amounts to an impermissible regulation based upon the content of the speech. Forsyth Country v. The Nationalist Movement, 505 U.S. 123, 135 (1992).

The Court disagrees and finds the ban content neutral. The Court finds that Plaintiff’s proposed march is markedly different than the large scale annual parades that the City hosts. Annual parades are regular events with which the NYPD has substantial experience. For such events, the NYPD also has a firm notion of the turnout based on past attendance records. Annual parades provide the NYPD with the opportunity to conduct visual security checks and, with the assistance of parade marshals, identify the members of a groups as they arrive at their respective staging areas for the parade.

The City offered the planning procedures associated with the Saint Patrick’s Day Parade as an example of the planning usually undertaken by the police to ensure the safety of participants and the public for large scale marches. Chief Esposito explained that “long before the event the organizers would submit an application for the parade. They would tell us exactly when they want the parade, what time of the day, how many participants will be there, how many organizations will be there.” Thereafter, the police conduct several meetings with the organizers to establish the “formation blocks,” which are the street blocks to which groups are assigned for entry into the parade. The police know who the leaders are in each block to contact in an emergency or for organizational issues. These groups then enter onto the march route at different times to ensure proper spacing and crowd management. These groups are separated by sufficient space during the march so that emergency lanes are preserved for police access to both the marchers and the local community.

United for Peace and Justice, however, gave NYC officials about 25 days notice of their plans for a mass march past the UN.
In contrast, Plaintiff came to the City only three weeks ago with its request for a march to include potentially over 100,000 persons. Plaintiff has continued to change its estimate of the number of expected protesters, offering ranges from 50,000 to 100,000 to 150,000 people, and its website suggests its hope that hundreds of thousands will attend the event. Ms. Cagan testified that she has not and still could not provide the police department with “specific information about numbers of participants.” For example, she frankly explained that while she believed 150 buses would be bringing participants to New York City, she could not be sure whether a number of these buses had been cancelled due to uncertainty regarding the permit or whether more buses might be chartered.

In addition, the City has had insufficient time to prepare with any security volunteers and with groups leaders of various contingents that intend to march. While Plaintiff has provided the City with a list of names of 360 organizations that intend to participate, it has not yet provided the City with the names of contact individuals for those different organizations and groups. Chief Eposito credibly recounted the City’s position with regard to the unique combination of size and uncertainty when he stated his concern with

[t]he size of the crowd, especially the size of the crowd that [is] unknown to us. That application showed 50,[000] to 100,000. Then we were told it might be much more than 100,000. I asked, Can you give us a list of all the organizers? Can you really tell us how many are going to be there? And they said, No, we can’t. We don’t really know. This is going on all over the country. We expect people to come in from all over the country. They couldn’t give me any specifics at all to that. So the size of that was a large problem. That crowd, that number marching through where they wanted and not knowing how many would be there would be very difficult to police . . . It would be very difficult to do.
Further, the lack of more exact figures and names of personnel to contact create a likelihood that participants will descend at the march’s starting point at the same time. A large crowd at the starting point could lead to dangerous surges in the crowd as participants vie to be at the front of the march. Police anticipate trouble controlling such surges throughout the entire march, creating a continuing risk of injury to participants themselves, especially children.11 [Chief Esposito noted that there are often children in events such as these, creating special concerns for the police. In addition, Ms. Cagan informed the Court that organizers of the event plan to have a contingent of children march toward the front of the line.]

In short, this proposed march

does not have the discipline of an organized line or march where there is an established, carefully planned and paced sequence throughout the parade route. As such it is more difficult to control the progress of the procession, especially if there is a need to respond to unexpected events such as injuries, disruptions, or other emergencies in the surrounding community.
Plaintiff disputes this assessment of its preparedness. Ms. Cagan testified that she was planning this event just as she did the other successful marches she organized in the past, some of which occurred in New York City. To be sure, Ms. Cagan is in the process of recruiting volunteers to serve as peacekeepers and marshals for the event and renting walkie talkies for communication purposes, however, she has yet to turn over specific information regarding the names and contact information of such persons to the City. She corroborates the police department’s concerns when she concedes that large protest marches often do require long term planning. In fact, the large 1994 Stonewall march, for which Ms. Cagan was a coordinator, required months of planning and grew out of an annual march. She also acknowledged that the organization for this march was “on a fast track,” and that “[she has] actually never been involved in a large demonstration like this so quickly.”12 [During this testimony, Ms. Cagan expressed her confidence in the NYPD’s ability to safely police her organization’s proposed march. While the history of New York’s successfully policed marches and parades undoubtedly reflects the NYPD’s expertise and ability, this is but another reason to credit their concerns about this march.]

I'll reserve judgement on NYC's refusal to issue the parade permit under the rubric that "poor planning on your part does not automatically constitute an emergency on my part." I don't think that failing to jump through hoops to try and accommodate the parade request necessarily constitutes obstruction.
While the organization of large protest marches may never replicate the practiced coordination of annual parades, the evidence demonstrates that more planning than is present here is needed to ensure the safety of participants and the public. The Court recognizes world events dictate a rapid organization in this case. Indeed, it also recognizes that safety concerns will likely arise whenever there is a march dedicated to a pressing world event that engenders such great public support that over 100,000 participants are expected. These considerations, though, do not mitigate against the City’s reasonable and legitimate safety concerns.


 
Dark, Cold, and Mostly WRONG. The Shark takes a swim in the murky depths of the Left's March 1999 editorials about the "denigration of international law" displayed by Clinton's actions "resembling designs of the Roman or British empires" as NATO began bombing Yugoslavia, which would actually "support the survival of Milosevic" because his loss of control over Kosovo would make him "stronger" while the NATO campaign would lay the "groundwork for a new Cold War" with Russia. You'll want to see what he finds when he swims into San Francisco Bay.


 
United For Peace And Justice Needs An ANSWER. All things being equal, United for Peace and Justice should certainly receive at least the same consideration for rally and parade permits as International ANSWER. But as far as the February 15th march past the UN goes, I'm not sure all things are equal. The major difference seems to be leadtime.

Consider two items found in the International ANSWER archives.

First, the top lines from a February 27, 2002, announcement for a mass march on Washington scheduled for April 20, 2002:

Originally Issued: December 20, 2001
Re-issued: February 27, 2002
Mass Mobilization: SATURDAY, April 20, 2002
Now look at what shows up the bottom of this July 24, 2002, piece:
Go to http://www.internationalanswer.org for information about upcoming activities against a new U.S. war in Iraq, including the October 26 Internationally Coordinated Day of Mass Actions and the January 18, 2003, National March on the White House in Washington DC.
That shows at least five months of planning for the April 20, 2002, mass mobilization, at least three months for the October 26, 2002, mass actions and almost six months for the January 18, 2003, march in Washington DC. I don't think I'd be too far out on a limb by suggesting that ANSWER makes arrangements, including applying for permits, well in advance of their events.

United for Peace and Justice, however, gave NYC officials about 25 days notice of their plans for a mass march past the UN.

Diane, at Letter From Gotham, gets to a core issue:

WAIT A SECOND. There is a fundamentally incorrect meme being spread in the blogosphere about the refusal of the city to grant United For Peace and Justice a parade and rally permit to march past the UN. Their right to protest under the First Amendment is not an issue, because the city has indicated a willingness to issue a rally permit. They may gather in a large area at the intersection of 47th and 1st, in full view of the UN.

The problem is the march past the UN. The city is under a code orange alert; a friend who attended the hearing told me that the Police Department representative said that 8,000 cops would be needed to police the march. Manpower would be scoured from many precincts, including the transit police. Of course, it doesn't take too much to figure out that subways, buses and bridges would be among the ripest targets for terrorist attacks.

Municipal support for a march requires much more manpower than a stationary rally or protest, which means a greater amount of schedule shifting and overtime, which would generally require greater leadtime to accommodate, which seems to be a valid reason why NYC is willing to permit the latter but not the former. (And NYC didn't just upgrade to orange with the recent national alert, it's been there all along.)

The rest of Diane's post on the media and blogosphere response is worth reading, but I want to turn to the leadtime issue, which is something she doesn't address. She gives a link to the federal lawsuit filed by the New York Civil Liberties (NYCLU) against NYC, the mayor and police commissioner on behalf of United for Peace and Justice; and what I read in the complaint just doesn't support their case.

In trying to show why NYC should permit their march, they provide a history that indicates two things:

  1. The NYPD is routinely able to handle large marches when given plenty of notice.
  2. Large marches past the UN are exceedingly rare.
First, the complaint states, "The NYPD routinely issues permits for marches in midtown Manhattan that are similar in size to the plaintiff's planned event and in some instances far larger." Then comes the supporting list of six large parades, and every one is an annual event. I think the NYPD knows there is a Thanksgiving Day Parade every year and plans accordingly.

Next, the complaint states, "On at least three prior occasions the City has permitted huge marches to take place on First Avenue past the United Nations." Then comes the list of those three occasions. Their purpose is unimportant, what matters is there were only three in twenty years (1994, 1988 and 1982). Additionally, there is no information provided to indicate how much leadtime the City required to support those three marches.

But somehow, after the NYCLU places a telephone call to "a high-level official of the NYPD's Legal Bureau" on January 22 and tells them that United for Peace and Justice wants to march possibly more than 100,000 people past the UN on February 15th, everybody is supposed to believe it is an egregious and unpardonable violation of the First Amendment when NYC says it will permit "a stationary rally on First Avenue north of 47th Street and in Dag Hammarskjööld Plaza" but can't support and won't permit a march past the UN.

At this point, I'm in agreement with Diane that this is being miscast as a First Amendment issue; though I think the "public safety" aspect could have been addressed and the march allowed if they had started working the permit process much earlier.

I'm ready to change my mind and say they should get a parade permit if there's evidence that United for Peace and Justice started the permitting process months ago, or evidence that NYC routinely handles similar size marches with less than a month's notice (both seem unlikely since neither is indicated in the complaint), or even evidence that International ANSWER doesn't begin working their permits until the month before the march.

While I don't know if Jim Henley will find the response thus far is worthy of his Honor Roll under the strict scrutiny standard of having "troubled to stand up for the freedom we're supposed to be defending," I can easily qualify under the lesser standard of having "denounced the Bloomberg Administration and/or The Sun." This editorial in The New York Sun is vile. Consider The Sun denounced, but I'll reserve judgement on NYC's refusal to issue the parade permit under the rubric that "poor planning on your part does not automatically constitute an emergency on my part." I don't think that failing to jump through hoops to try and accommodate the parade request necessarily constitutes obstruction.

But I do get to go for the gold since this post does provide an answer to the ANSWER question: Maybe their affinity for 5-year-plans is paying off for the Stalinists in International ANSWER because it helps them organize early enough to get the permits they need; while the "I want it all, I want it now" and "No Justice - No Peace - No Compromise" attitude of groups in the United for Peace and Justice consortium tends to hamper their efforts.


UPDATE: So I write this based on the stuff in the cache, log on and post it, then go look around and find that Jim Henley has responded to Diane's post and she has responded to him, and they've been all over the leadtime issue. Like United for Peace and Justice, I'm apparently a day late and a dollar short.




Original content copyright © 2002-2005 Lynxx Pherrett. All rights reserved.