NYCLU Files Federal Lawsuit Challenging NYPD Policy Barring Leafleting And Petitioning On Public Sidewalks Near Public Schools

October 22, 2003 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK —————————————————– YA-YA NETWORK and AMY WAGNER, Plaintiffs, vs. The CITY OF NEW YORK and RAYMOND KELLY, Commissioner of the New York City Police Department, Defendants. —————————————————– x : : : : : : : : : : : x COMPLAINT 03 Civ. Preliminary Statement 1. This is an action to vindicate the civil rights of those who wish to engage in peaceful and nondisruptive leafletting, petitioning, and other related First Amendment activity in the vicinity of schools in New York City. The New York City Police Department has adopted and is enforcing a policy of construing a New York State anti-loitering statute to prohibit expressive activity on public sidewalks abutting upon school buildings or grounds, regardless of whether the activity disrupts school activities and regardless of whether it blocks or otherwise improperly impedes public access to the public sidewalk or adjoining school property. Pursuant to this policy, police officers have told single leafletters that they are not permitted to remain on public sidewalks adjoining schools and school grounds and have arrested and threatened to arrest young people who have engaged in protected activity on such sidewalks. 2. The plaintiff Ya-Ya Network is a not-for-profit organization of young people who engage in advocacy on behalf of teenagers and young adults. The group is in the midst of a campaign to distribute informational flyers and forms on public sidewalks at New York City high schools about the rights of students to “opt-out” of ongoing efforts by the United States military to obtain student information from schools for military-recruitment purposes. However, because its staff members recently have had the NYPD policy enforced against them and because it is aware of earlier arrests pursuant to the policy, the Ya-Ya Network is afraid to continue its campaign. 3. The New York State anti-loitering provision concerning schools is unconstitutionally vague, and the NYPD policy and practice of invoking that statutory provision to bar peaceful, nondisruptive First Amendment activity on public sidewalks adjoining schools and school grounds violates the First Amendment. The plaintiffs seek a declaratory judgment, preliminary and permanent injunctive relief against further enforcement of the policy, and attorneys fees. Jurisdiction And Venue 4. This court has subject-matter jurisdiction over the plaintiffs’ claims pursuant to 28 U.S.C. §§ 1331, 1343(3-4). 5. Venue is proper pursuant to 28 U.S.C. § 1391(b) in that plaintiffs’ claims arise in the Southern District of New York. 6. Jurisdiction to grant declaratory judgment is conferred by 28 U.S.C. §§ 2201, 2202. Injunctive relief is authorized by Rule 65 of the Federal Rules of Civil Procedure. An award of costs and attorneys fees is authorized pursuant to 42 U.S.C. § 1988. Parties 7. Plaintiff YA-YA NETWORK is a not-for-profit organization based in Manhattan. 8. Plaintiff AMY WAGNER is the Executive Director of the Ya-Ya Network. 9. Defendant the CITY OF NEW YORK is a municipal corporation within the State of New York. 10. Defendant RAYMOND KELLY is the Commissioner of the New York City Police Department, which has its headquarters at 1 Police Plaza in Manhattan and which is responsible for security at public schools in New York City. He is sued in his official capacity for injunctive relief. Facts 11. Ya-Ya Network is a not-for-profit organization whose employees include teens and young adults who engage in advocacy on behalf of teens and young adults. The Ya-Ya Network is in the midst of a campaign of handing out informational flyers and forms on public sidewalks at New York City high schools about the rights of students to “opt-out” of military recruitment taking place in the City’s public high schools. 12. Earlier this year another youth advocacy group called Youth Organizers United (YOU) launched a program designed to monitor and promote the provision of HIV/AIDS education in New York City public high schools. Called “Hit the Schools,” the program involved YOU organizers going to public schools, providing HIV/AIDS literature to students leaving school at the end of the school day, asking students whether they were receiving mandated HIV/AIDS education from their school, and collecting petition signatures from students who reported they were not receiving the mandated education. At those schools where students were reporting to YOU organizers that they were not receiving mandated HIV/AIDS education, YOU intended to present the petitions to the school principal as a first steps towards assuring that the education was provided. If that did not solve the problem, YOU then intended to present the petitions to higher-level New York City Department of Education officials. 13. As part of its Hit the Schools program, YOU youth organizers intended to visit public high schools around the City to leaflet and to petition on public sidewalks outside those schools. 14. On April 4, 2003, two YOU organizers went to Erasmus High School in the Flatbush area of Brooklyn to leaflet and to collect petition signatures about HIV/AIDS education at that school. Standing on the public sidewalk in front of the school, the two youth organizers started talking with students, handing out literature, and collecting petition signatures. A police officer approached one of the organizers, who was seventeen years old, told him that he was not allowed to leaflet and petitin on the public sidewalk, and ordered him to move to the end of the block. 15. The organizer then moved to the end of the block and resumed his activity. The police officer approached him again and ordered him again to move further away from the school. When the organizer attempted to complete the immediate activity in which he was involved before moving again, the officer grabbed the organizer, pushed him up against a gate along the sidewalk, and demanded that he produce identification. Even though the organizer produced his identification and explained his activity, the officer refused to allow him to leave, grabbing him by the neck at one point. The officer issued the organizer a summons for loitering in violation of section 240.35(5) of the New York Penal Law. He also issued a similar summons to the second YOU organizer. 16. After two of its organizers received summons on April 4, 2003, YOU halted its “Hit the Schools” initiative out of fear that other organizers would receive summonses or even possibly be arrested. 17. On or about May 15, 2003, an individual went to Madison High School in the Marine Park area of Brooklyn to distribute leaflets while standing on the public sidewalk in front of the school. Officers from 61st Precinct arrived on the scene and informed the leafletter that he was not permitted to stand on the sidewalk and distribute leaflets. As a result of the officers’ actions, the leafletter stopped leafletting and left the area. 18. On May 20, 2003, the NYPD informed the New York Civil Liberties Union, which is serving as counsel for the plaintiff in this matter, that it construed and was enforcing section 240.35(5) of the New York Penal Law to bar any person from engaging in leafletting, picketing or other expressive activity on any public sidewalk abutting a school or school grounds. 19. In relevant part, section 240.35(5) of the Penal Law provides as follows:

20. Pursuant to its interpretation of section 240.35(5) of the Penal Law, the NYPD informed the NYCLU that the person seeking to distribute leaflets at Madison High School was not permitted to do so on any sidewalk that abutted upon the school’s building or grounds. Rather, the leafletter’s only option was to stand on a sidewalk across the street from the school or to stand on an area of the sidewalk on the same side of the school beyond the point where the school’s building and grounds ended. 21. In May 2003 the NYCLU informed a senior member of the New York City Law Department of its objections to the NYPD’s enforcement of the statute and requested that the City take immediate steps to suspend and terminate the policy. The Law Department informed the NYCLU that it would consider such actions, and special arrangements were made to allow the leafletter and YOU to engage in limited expressive activity. Afterwards. the NYCLU made many inquiries about the status of the City’s actions but as of the filing of this complaint has not been informed of appropriate formal action being taken by the NYPD to assure that individuals and groups would be able to engage in First Amendment activity on sidewalks abutting schools and school grounds. 22. The plaintiff Ya-Ya Network recently initiated its campaign of informing New York City high school students of their right under federal law to “opt-out” of efforts by military recruiters to obtain information about the students from the students’ schools. As part of that campaign, the Ya-Ya Newtwork wishes to go to public high schools and hand out informational flyers and special “opt-out” form to students at those schools. Having access to the public sidewalks is essential for this campaign, as those are the best areas to interact with students. 23. On Tuesday, October 14, 2003, Ms. Wagner and other young staff members of the Ya-Ya Network went to Environmental High School in Manhattan to distribute military-recruitment, opt-out information to students leaving the school at the end of the school day. After the Ya-Ya Network staff members started to distribute materials on a sidewalk in front of the school, school officials approached them and told them they could not be anywhere on the entire block — on either side of the street — where the school is located. As a result of this, they left the area. 24. On Tuesday, October 21, 2003, Ms. Wagner and other young staff members of the Ya-Ya Network went to Martin Luther King, Jr. High School in Manhattan to distribute military-recruitment, opt-out information to students leaving the school at the end of the school day. School security officials told them that they were not permitted to hand out materials on a sidewalk abutting the school and that if they did they could be arrested for loitering or for other offenses. Ya-Ya Network staff members then left the sidewalk area. 25. After leaving the area near Martin Luther King, Jr. High School on October 21, Ya-Ya Network staff members proceeded to nearby LaGuardia High School to distribute military-recruitment, opt-out information to students leaving the school at the end of the school day. An NYPD officer approached them and told them that they were not allowed to distribute materials on the sidewalk. As a result of this, the Ya-Ya Network staff members left the area. 26. When it has attempted to engage in similar activity in the past, the Ya Ya Network has encountered problems with the NYPD and school officials. For instance, in the spring of 2002 the group sought to collect signatures from New York City high school students to restore funding for summer-job programs at a school on the West Side of Manhattan. Police officers ordered the group’s members to leave the public sidewalk and threatened to arrest them if they did not. Consistent with this, several Ya-Ya Network staff members have been told that public schools are surrounded by “red zones” into which they may not enter. 27. One of the two YOU members who was arrested on April 4, 2003, was also a staff member of the Ya-Ya Network. After he was arrested, he related his experience to other staff members of the Ya-Ya Network. 28. As a result of the earlier experiences it has had, the April 2003 arrests, and its experiences on October 14 and October 21, 2003, the Ya Ya Network fears that its teen and young-adult employees will be arrested if they continue their counter-military recruitment informational campaign on public sidewalks abutting public schools. If they cannot use these sidewalks, their ability to reach high-school students will be substantially impaired. 29. Upon information and belief, the NYPD routinely has informed persons and groups that they are not permitted to assemble or engage in expressive activity on public sidewalks adjoining public schools in New York City. 30. Because there are more than one thousand schools in New York City, the NYPD’s policy of enforcing section 240.35(5) of the Penal Law to bar leafletting, petitioning, and other First Amendment activity on sidewalks abutting on schools and school grounds results in large numbers of City sidewalks being off-limits to core First Amendment activity. 31. The NYPD policy of barring leafletting, petitioning, and other First Amendment activity on public sidewalks adjoining public schools and grounds substantially undermines the ability of the plaintiff and others to convey their message to students and other members of school communities. As the Supreme Court of the United States explained over thirty years ago,

32. Because it bars leafletting, petitioning, or other expressive activity regardless of how peaceful and nondisruptive it may be, the NYPD policy is not narrowly tailored to any legitimate concern about disruption to school activities. 33. The defendants’ actions are being taken under color of law. First Cause Of Action 34. The defendants’ official policy and practice of enforcing section 240.35(5) of the New York State Penal Law to bar leafletting, petitioning, and other expressive activity on public sidewalks adjoining schools or school grounds violates the First Amendment of the United States Constitution and 42 U.S.C. § 1983. Second Cause Of Action 35. Section 240.35(5) of the New York State Penal Law violates the Fourteenth Amendment of the United States Constitution. WHEREFORE, the plaintiff requests that this court: (1) Assume jurisdiction over this matter; (2) Issue a declaratory judgment that the defendants’ policy and practice of prohibiting leafletting, petitioning, and other expressive activity on public sidewalks adjoining schools or school grounds violates the First Amendment of the United States Constitution; (3) Issue a declaratory judgment that section 240.35(5) of the New York Penal Law violates the Fourteenth Amendment of the United States Constitution; (4) Issue a preliminary injunction enjoining the defendants from enforcing their policy and practice of prohibiting leafletting, petitioning, and First Amendment protected activity on public sidewalks adjoining schools or school grounds and ordering them to take appropriate steps to implement the preliminary injunction; (5) Issue a permanent injunction enjoining the defendants from enforcing their policy and practice of prohibiting leafletting, petitioning, and First Amendment protected activity on public sidewalks adjoining schools or school grounds and ordering them to take appropriate steps to implement the injunction; (5) Award the plaintiffs attorneys’ fees; and (6) Grant any other relief the court deems appropriate. Respectfully submitted, NEW YORK CIVIL LIBERTIES UNION FOUNDATION, by _____________________________ CHRISTOPHER DUNN (CD-3991) ARTHUR EISENBERG (AE-2012) DONNA LIEBERMAN (DL-1268) 125 Broad Street, 17th Floor New York, N.Y. 10004 (212) 344-3005 Counsel for the Plaintiffs Dated: October 22, 2003 New York, N.Y.