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No.

13-776 In the

Supreme Court of the United States


ROBERT LEDERMAN AND JACK NESBITT, Petitioners, -againstNEW YORK CITY DEPARTMENT OF PARKS AND RECREATION, a municipal agency, ADRIAN BENEPE, Parks Commissioner in his individual and official capacity, CITY OF NEW YORK, a municipality, and MICHAEL BLOOMBERG, Honorable Mayor in his individual and official capacity, Respondents. _________________ ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

JULIE M. MILNER, MILNER LAW OFFICE, PLLC 8302A Broadway, Third Floor Sui ! El"hur# , N$ %%3&3 '&%8( &))* +2,2 -i./ri0h #/!#120"ail/-o" A or3!y# 4or P! i io3!r# Cou3#!l o4 R!-ord

TABLE OF CONTENTS

TABLE OF CONTENTS ............................................. i TABLE OF AUTHORITIES ...................................... ii REPLY ........................................................................ 1 CONCLUSION ......................................................... 10

TABLE OF AUTHORITIES

Cases In re New York Skyline. Inc. v. City of New York, 94 A.D.3d 23 (App. Div. 1't Dept. 2012) ..7 Lederman v. Benepe, et al., 12-cv-6028 (S.D.N.Y. 2012) 5 Lederman et al. v. Giuliani, 1998 U.S. Dist. LEXIS 5468 (S.D.N.Y. 1998) ...10 Statutory Authority 56 RCNY 1-05(b)(2) . in passim N.Y.A.D.C. 17-306 et seq. 9 N.Y.A.D.C. 20-452 et seq. 9 N.Y.A.D.C. 20-465(k) ...4

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REPLY BRIEF OF PETITIONERS New York Citys attempt to dissuade this Court from determining the constitutionality of park rule revisions reflects a startling broad conception of an administrative agencys commissioners unbridled powers that could eliminate the protections guaranteed by the Constitution against the infringement of free speech and personal liberty. Can this Court allow a governmental official to pick and choose who is allowed to speak and who will be foreclosed on public land? This Brief is submitted to correct Misstatements in the Citys Response (a) There are not 29,000 park acres available to artists. The City does not dispute petitioners explanation of how the park rules prohibitions foreclosed almost the entire citys parkland to artists. Instead, the City craftily paints a picture in its response, with not one scintilla of evidence of support, where most of the 29,000 park acres are still available to the artists, who may vend, without a permit, anywhere in the Citys parks provided they comply with certain minimum requirements such as keeping a clear pedestrian path, not lean[ing] against any park furniture or plants; and not block[ing] anyone from using any park furniture. (Resp. 7-8). If it is true, as the City asserts, that only about 52 acres [are] affected (Resp. 29) then why couldnt the Parks Commissioner or any of his enforcement officials, who patrol the parks thoroughly on a daily basis, articulate a single legal spot still available to artists outside the medallions? %

Petitioners have submitted sufficient evidence below showing that the rule revisions foreclose almost the entire parkland to artists, as they were clandestinely designed to do. Even former Assistant Commissioner Jack Linn, who helped choose the medallion locations and was involved with the issue of art vendors for three decades was flabbergasted that the City had been claiming that there were 29,000 acres of parkland still available to artists, and found it unbelievable that anyone had made such a claim. Linn admitted that there was no way for the City to support its position that there were alternative spots available outside the medallions. (b) The Park Commissioner was not confused by a tourist map. The City blames a tourist map for former Parks Commissioner Adrian Benepes failure to articulate even a single legal spot still available to artists outside the medallions. They neglected to mention that this was actually a highly detailed, colored map published by the Central Park Conservancy, a private partner with the City which manages that park. The City also failed to mention that of the ten parks officials deposed, no one could even point out any legal spot on any of the over one hundred maps printed out from the parks department own website. Quite tellingly, former Assistant Commissioner Linn testified wryly in his deposition that there were two artists that thought they had found a legal spot in Strawberry Fields, [referring to petitioner Jack Nesbitt and his partner]. Yet less than a week later, Mr. Nesbitt was summonsed in that exact spot. That summons was made part of the record. (c) When the City says 12 clearance, they really mean 15. 2

Once again, the City does not dispute petitioners explanation of how the change in the parks 12 clearance rule really means that there now must be a pathway at least 15 in width, and how this forecloses almost the entire system of pathways in the parks to the artists since there are almost no pathways that wide without other obstructions that would make them illegal or inappropriate to use. They could not possibly dispute it, because the Parks Departments own FAQs illustrating this point with a diagram was made part of the record. Instead the City disingenuously presents it as an incidental afterthought that in no way diminishes the 29,000 acres supposedly still available to artists. (Resp. 29). When asked in his deposition about how many miles of pathways were in Central Park, right away Assistant Commissioner Linn knew the answer to be 58 miles. When asked how many had a clearance of 15 or more, he exclaimed, Wouldnt have a clue! Yet he admitted in his testimony that he and his staff would regularly use a measuring wheel in Central Park South to measure the distances between the curb and the obstructions that would prevent someone from setting up a display or selling their wares. The petitioners were entitled to the reasonable inference that meticulous measurements were made to ensure the rules could be written in such a way as to drive artists from the parks. (d) There was no regulatory gap.

The City argued below that there was some sort of regulatory gap where the artists were not subject to any regulation. This could not be more farther than the truth. If there were no regulations for the artists, then under what authority did the City arrest petitioners and issue them hundreds of summonses over the years? While selling his art, petitioner Lederman was arrested by the Parks 3

Enforcement Patrol on parks property twelve times and summonsed 21 times between 1998 and 2014. Petitioner Nesbitt was arrested and summonsed a similar number of times during that same period. In each and every instance they were charged with violating the park rules concerning art vending. The petitioners submitted evidence establishing that there were sufficient regulations in place to address any concern the parks department might have concerning congestion or blight. There is an exigent circumstances provision in the General Vending section of the Administrative Code of the City of New York (N.Y.A.D.C. 20-465(k)) that can be used by any city agency official to immediately clear an area. There is an Enforcement Memo by former Parks Enforcement Patrol Director Raymond Brown that was used to issue summonses. There was deposition testimony by the parks departments top enforcement officials that the rules in place prior to the revision going into effect were sufficient to deal with congestion and blight. In fact, Raymond Brown, a 9/11 hero, testified that the exigent circumstances provision was sufficient even for a catastrophic event such as 9/11. (e) Artists must follow all Park Regulations except the licensure requirement. The City should be well versed on its own laws, yet incredulously endorses a patently false conclusion reached by the District Judge that the artists were not subject to the regulatory schemes that governed other vendors. (Resp. 15, quoting 901 F. Supp. 2d at 475-476 (Pet. App. B-33a)). Artists are subject to all of the park regulations, including the vending regulations, except for the licensing requirement of 56 RCNY 1-05. Petitioners established in the record that corporate vendors are given plumb contracts that ,

exempt them from complying with many of the rules the artists must follow. This creates an anomaly where commercial activity is less heavily regulated than speech. (f) The record is rife with evidence of animus, pre-text and selective enforcement. Astonishingly, the City claims there is absolutely nothing in this extensive record suggesting pretext or retaliation. (Resp. 27). The petitioners submitted in the record former Parks Commissioner5s private communications showing the true intent of the rules is to eliminate artists from parks in order to provide space for money generating concessions. In his e-mail to Patricia Harris in October 2005, when the initial stages for drafting the revised rules had already begun, the Commissioner 5s intention to severely curb art vendors 5 expressive activities is crystal clear from his lament that there were more artist5 vendors than ever before, and that the GVL (General Vending Law) clearly was not having a chilling effect on selling their stuff in the parks. [emphasis added]. Indeed, nowhere is the former Parks Commissioner5s animus towards artists more revealed than when he compares their advocates with Nazis, and characterizes them as forces of private personal greed usurping public property that utilize Nazi propaganda tactics. Even the former Commissioners public statements were rife with animus. News quote after news quote were authenticated in Commissioner Benepes deposition. And, most shockingly, the day the new rule revisions were announced on the television news, Benepe attributed them to petitioner Robert Lederman! +

Moreover, private emails spanning two decades between Adrian Benepe and Robert Lederman clearly illustrated the bad blood between the two. If those didnt paint a clear enough picture, the Citys settlement of false arrests personally ordered by Benepe against the two petitioners on the High Line Park speaks volumes. The City settled these claims even before any litigation was filed. And while litigation was pending in this present case, Benepe had petitioner Lederman falsely arrested again at a public panel while Lederman was engaging in peaceful protest. That case is pending in the Southern District of New York as Lederman v. Benepe, et al., case no. 12-cv-6028. Petitioners believe this last order to have Lederman falsely arrested and the subsequent embarrassment of the media attention led to the sudden announcement that Benepe was leaving his tenure as parks commissioner. (g) Parks anticipated and targeted display only. The Citys claim that it seldom if ever, encountered people engaging in [display without selling] (Resp. 25) is astounding in light of the many summonses both petitioners have received for that very activity. Display without selling is technically allowed under the rule revisions. This gives rise to a facial challenge because an impermissible distinction is made between speech that is sold and speech that is merely displayed, since both have the identical impact on parkland. However, as applied, display without selling is actually not allowed at all. In the record is proof that the Parks Department anticipated that artists would )

engage in that activity. Petitioners obtained a secret internal Parks Enforcement Memo, authenticated by parks top enforcement officials in their depositions, which instructed officers to summons anyone displaying without selling as if they were selling! (h) Parks Policy towards Performers is so Erratic it fails Rational Basis Review. The rule revisions initially included performers in the enforcement rubric as a way to defeat an Equal Protection challenge in petitioners anticipated lawsuit. Indeed, the City has pointed to performers to argue that artists were not targeted and that enforcement would occur fairly across the board. However, in deposing the parks departments top enforcement officials, it become exceedingly clear that placing performers into the medallion spots was untenable and would create a public hazard as any mediocre performer can expect to attract dozens of onlookers, and a good performer can attract hundreds. Given that many medallions are in close proximity to oncoming traffic, this was a recipe for disaster. When the performers threatened suit, the parks department negotiated a deal with their attorney to exempt them from enforcement after the summary judgment motion in this case was fully submitted. Petitioners moved to enter this new evidence into the summary judgment record. Without disputing the deal made with the performers, the City instead offered a newly decided state case, In re New York Skyline. Inc. v. City of New York, 94 A.D.3d 23 (App. Div. 1't Dept. 2012), as the impetus for the new exemption for performers. However, petitioners established through the parks departments statements to the press that the decision to exempt performers occurred months &

before the Skyline decision! Yet the District Judge wholly endorsed this fallacy in his decision. (Resp. 13; Pet. App. B-28a-29a). Shortly after petitioners filed their notice of appeal to the Second Circuit, the parks department promulgated yet another revision adding performers back into the enforcement rubric by including the word entertainment in its definition of expressive matter. (Resp. 11). In response to the media uproar over the broken deal with the performers, Manhattan Parks Commissioner William Castro held a community meeting assuring the public that the amendment to the rules was simply a slight adjustment and technical legal response to a court ruling. He assured the public that performers were exempt from regulation unless they were selling so many CDs that they needed a table, and even then enforcement would only occur if people were tripping over them. An audiotape and transcript of this meeting were submitted to the record, along with an FAQ sheet which makes the enforcement disparity readily apparent. Under the section Will The Rules Be Enforced Differently? performers are exempt from the 50 feet from a monument prohibition that governs artists; performers are exempt from the five feet from park furniture prohibition that govern artists; and performers are exempt from the definition of vending if they do not use a table, although artists are considered vendors if using "carts, display stands or other devices." Despite Castros public assurances that no enforcement would take place against performers, the City used the new rule to argue the mootness doctrine against petitioners Equal Protection claims to the Second Circuit.

(i) Petitioners will never attempt to get one of the Medallion Spots as a matter of principal. The City makes much of the petitioners refusal to attempt to obtain a medallion. (Resp.28). Robert Lederman is the president of Artists Response To Illegal State Tactics (A.R.T.I.S.T.), an international artists advocacy group that advises artists around the globe on their rights to display and sell their work. Jack Nesbitt is a long time member and organizer of that group. As Lederman explained in one of his Declarations to the court below, as the leader of a group that advocates for artists rights, it would go against his principals to appear as if he is going along with the parks departments attempt to abrogate his rights by attempting to obtain one of those medallion spots. The City also makes much of Ledermans statement that he has hardly made any sales at all in recent years. (Resp. 28). What the City failed to include was his reason. Robert Lederman clearly testified in his deposition that fighting these rules and helping artists understand the new restrictions have been his full time jobs since the rules went into effect July 2010. Moreover, as testified in his deposition and documented in various video recordings submitted as evidence virtually every time he attempts to set up his display in a park he is immediately harassed by the Park Enforcement Patrol, as demonstrated by the many arrests and summonses he has been issued. (j) Artists cannot sell on any City sidewalk they choose. The City makes it appear that artists are free to vend on any public sidewalk (Resp. 29), but this is certainly not the case. Although there are some sidewalks available to artists, as Robert Lederman testified in his Declaration which is preserved in the 6

record, the fact remains that there are many hundreds of avenues and blocks in Manhattan alone that are totally restricted to artists by the Administrative Code 17-306 et seq. and 20-452 et seq., and as published in the Department of Consumer Affairs pamphlet Streets Restricted to Written Matter Vendors. Thousands of blocks are similarly restricted in the other four Boroughs. (k) Petitioners submitted direct evidence showing the Mayors personal knowledge. Contrary to the Citys assertion of the District Judges incorrect statement that petitioners failed to demonstrate personal knowledge (Resp. 21), petitioners submitted to the record an audio taped conversation between Robert Lederman and Mayor Michael Bloomberg that took place just prior to the rules being revised where the Mayor discusses his take on the necessity for the rules. In that conversation the Mayor initiates a discussion with Lederman about the street artists who are set up near the Metropolitan Museum of Art in Central Park (which includes both Lederman and Nesbitt), right across the street from the Mayors longtime home. The Mayor states that there are too many artists; that they sell junk; that they unfairly compete with taxpaying businesses and that the police refuse to summons them. The Mayor has been directly involved in the street artist controversy for years predating the park rules controversy. One of the very first laws directly proposed by the Mayor upon taking office was Intro #160, a law intended to reinstitute the artist permit system that the Federal Courts had previously struck down in Lederman et al. v. Giuliani. And, on the day this lawsuit was filed in 2010, the Mayor went on his weekly radio show to talk %0

about the lawsuit, knowledgeably describing Ledermans previous lawsuits as successful and vowing that the City would definitely win this one. While it is true that petitioners maintain that former Commissioner Adrian Benepe was the driving force behind the rules (Resp. 21), it was impossible to get the information needed from him as he said I dont know or cant remember 155 times in his deposition. (l) Newsweeks interest in this issue reflects a national significance. Contrary to the Citys attempt to portray Newsweeks coverage of the artists rights issue as a mere reference to the Second Circuits decision (Resp. 24), there have been three in-depth articles published to date which indicates the venerable magazine is watching this case quite closely. This is in addition to the other numerous localized coverage in the New York Times, Wall Street Journal, and other periodicals and legal journals. ***** CONCLUSION For the foregoing reasons and those stated in the petition for a writ of certiorari, the petition should be granted.

Respectfully submitted, JULIE M. MILNER, Counsel for Petitioners MILNER LAW OFFICE, PLLC 8302A Broadway Third Floor Suite Elmhurst, NY 11373 (718) 766-5242 %%

civ.rights.esq@gmail.com

Dated:

Elmhurst, New York February 3, 2014

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