MEMORANDUM-DECISION and ORDER
I. INTRODUCTION
Plaintiff James Deferio (“Plaintiff’) commenced this action against the City of Syracuse and three of its police department personnel
Five days after filing his Complaint, Plaintiff moved for a preliminary injunction concerning the upcoming 2016 Pride Parade and Festival, which is scheduled to occur on June 18, 2016. Dkt. No. 6-15 (“Plaintiffs Memorandum”) at 9; Festival Information, Cent. N.Y. Pride, http:// www.cnypride.com/festivaLinfo.aspx (last visited June 8, 2016). Plaintiff seeks an injunction prohibiting the enforcement of a “40-foot buffer zone” around the festival entrance. Dkt. -No. 6-1 (“Motion”) at 1. The Constitution requires that, as citizens, we “must tolerate insulting, and even outrageous, speech in order to provide ‘adequate “breathing space” to the freedoms protected by the First Amendment.’ ” Boos v. Barry,
II. BACKGROUND
The facts discussed here are largely derived from the affidavit Plaintiff submitted in conjunction with his Motion, Dkt. No. 6-2 (“Plaintiffs Affidavit”), along with several other accompanying Exhibits, Dkt. Nos. 6-3 to -14 (“Plaintiffs Exhibits B-M”). As discussed below, Defendants have not—at the preliminary injunction stage—raised any actual dispute regarding this factual background.
Plaintiff in this case is a self-described “Christian evangelist” who “engage[s] in public ministry.” PL’s Aff. ¶ 3. In so doing, he attempts to “address[ ] religiously sensitive, but important topics” at public events—in this case, at the Central New York Pride Festival and Parade in Syracuse. Id. ¶¶ 13-14. Though not explicitly stated in his papers, this “public ministry” appears to partially stem from or consist of anti-LGBTQ sentiments. See Pl.’s Ex. F at 1:23-1:27 (noting Plaintiffs opinion that his removal resulted from his disagreement with 'the festival organizers’ “views on homosexuality”); PL’s Ex. L at 0:33-0:36 (“[T]his parade is an uncivil parade,1 and I will rain on that.”).
The 2014 CNY Pride Festival occurred on June 21, 2014, in Syracuse at an area known as the Inner Harbor. See PL’s Aff. ¶ 16. A main entrance to the festival was located on the north side of Kirkpatrick Street where it intersects with the Onondaga Creekwalk, with the northern leg of the Creekwalk serving as the entranceway. See id. ¶ 18-19; PL’s Exs. B-C. Plaintiff, armed with a banner and a “personal voice amplifier,” see PL’s Aff. ¶¶ 8-9, 37; PL’s Ex. D; PL’s Ex. F at 0:28-0:32, positioned himself on the sidewalk at the northwest corner of the Kirkpatrick Street-Onondaga Creekwalk intersection and began “explaining [his] beliefs to those nearby.” PL’s Aff. ¶¶ 18, 20; PL’s Ex. C. This area of sidewalk, at the corner of those two streets (and thus immediately outside of the festival entrance), appears to be over three times wider than the surrounding area of normal sidewalk. PL’s Aff. ¶¶ 18-19; PL’s Exs. B-C. The area appears to have remained open to ordinary pedestrian traffic, see PL’s Aff. ¶ 17; PL’s Ex. D; PL’s Ex. F, and Plaintiff claims that pedestrians “could easily walk by [him] and stay on the sidewalk,” PL’s Aff. ¶ 18.
After some period of Plaintiffs demonstration, Sergeant Jamey Locastro and another City of Syracuse police officer approached and confronted Plaintiff, who video recorded the ensuing conversation. Id. ¶ 21; PL’s Ex. D. Sgt. Locastro told Plaintiff that he was “in violation of the permit that the parade has,” that CNY Pride was possessed a permit for the sidewalk on the side of the street adjacent to the festival entrance, and that Plaintiff was only allowed to be on the other side of the street. PL’s Ex. D 0:04-0:16. Sgt. Lo-castro showed Plaintiff a copy of the permit, which (according to Sgt. Locastro) included hundreds of feet of the north Kirkpatrick Street sidewalk surrounding the festival entrance. See PL’s Aff. ¶¶22-23, 36-37; PL’s Ex. D 0:27-0:46; PL’s Ex. F 0:09-0:26. Sgt. Locastro then ordered Plaintiff to move across Kirkpatrick Street, and later specified that if Plaintiff “refuse[d] to move across the street, [he would] be arrested.” PL’s Ex. D at 2:36-2:41.
B. Correspondence with the City of Syracuse
Following the events at the 2014 Pride Festival, Plaintiff retained counsel (the same attorneys representing, him in the present action), who, on September 5, 2014, sent a letter on his behalf to representatives of the City of Syracuse and to Chief of Police Frank Fowler. Id. ¶ 43; Pl.’s Ex. G. In the letter, Plaintiffs counsel asserted that Sgt. Locastro’s order for Plaintiff to move across Kirkpatrick Street was unconstitutional, demanding a written assurance of Plaintiffs right to demonstrate on the public sidewalks, nominal damages, and attorney’s fees. PL’s Ex. G.
On October 24, 2014, the City of Syracuse—through the Office of the Corporation Counsel—responded to Plaintiffs' letter. PL’s Ex. H. In the letter, the City’s attorney noted his- previous telephone conversation with Plaintiffs counsel and noted, in relevant part, that
the City will closely review the geographic aspects of similar future permit applications as they relate to locations of traditional public fora in order to ensure that such fora, and citizens’ access to them, remain uninhibited within the requirements of any applicable and lawful time, • manner, or place restrictions on religious or other similarly protected expression.
Id.
On October 30, 2014, Plaintiffs counsel responded to the City’s attorney, noting receipt of his letter but complaining that it was “vague and deficient” in assuring Plaintiff that his future demonstrations would go undisturbed. PL’s Ex. I.
C. The 2015 Pride Festival
On June 20, 2015, Plaintiff again attempted to engage in his “public ministry” at the 2015 CNY Pride Festival, this time positioning himself on the public sidewalk at the northeast corner of the Kirkpatrick Street-Onondaga Creekwalk intersection. Id. ¶¶ 48-49; PL’s Ex. J. Once again, soon after Plaintiff began his demonstration, he was approached by City of Syracusе police officers, including Captain Joseph Sweeny. PL’s Aff. ¶ 51.
At the start of this interaction, Capt. Sweeny asked Plaintiff to move “to the other side of the street ... [b]ecause
Once on the other side of the street, Capt. Sweeny explained that the “Corporation Counsel [of the City of Syracuse] stated that what they are doing is giving a 40-foot buffer on the area around the entrance to and across the street for anybody that’s protesting that’s using any kind of sound amplification device, they can’t be in that area.” Pl.’s Ex. L at 0:01-0:16. Capt. Sweeny noted that this policy came from “Joe Doyle” in the Corporation Counsel’s office,
D. The Present Litigation
On March 31, 2016, Plaintiff filed his Verified Complaint in this action, alleging violations of his constitutional rights based on the events described above. See Dkt. No. 1. On April 5, 2016, Plaintiff also filed his Motion, along with 13 Exhibits and a Memorandum in support of the Motion. Dkt. Nos. 6 to 6-15.
On April 25, 2016, Defendants responded to the Complaint by filing their Verified Answer, in which Defendants denied knowledge or information sufficient to form a belief as to all of the substantive allegations in the Complaint. See Dkt. No. •12 (“Answer”).
The Declaration only makes one factual assertion relating to the Motion, attaching a “Syracuse Police Department Training Bulletin” that purports to “order[ ] all offi
III. LEGAL STANDARD
A district court has wide discretion in determining whether to grant preliminary injunctive relief. Moore v. Consol. Edison Co. of N.Y.,
IV. DISCUSSION •
A. Likelihood of Success on the Merits
In determining whether Plaintiff has established a likelihood of success on the merits, the Court looks to whether the evidence presented demonstrates that he is likely to prevail at trial on -a claim concerning the conduct complained of—in this case, the enforcement of a buffer zone surrounding the entrance to the Pride Festival. Because Defendаnts agree that Plaintiff’s speech is entitled to First Amendment protection, Defs.’ Mem. at 13, the question in this case is whether or not the buffer zone is a permissible restriction on Plaintiffs right to free speech. Because such a buffer zone would restrict Plaintiffs right to expression within a traditional public forum, and is not narrowly tailored
1. Public Forum Analysis
When considering whether a government entity can regulate private speech, location matters. “Members' of the public retain strong free speech rights when they venture into public streets and parks, ‘which “have immemorially beеn held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.”’” Pleasant Grove City v. Summum,
Even in a public forum, however, the government may still “impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions ‘are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.’ ” Ward v. Rock Against Racism,
2. Narrowly Tailored Requirement
“A regulation is narrowly tailored ‘so long as [it] .., promotes a.substantial government interest that would be achieved less effectively absent the regulation,’ and is ‘not substantially broader than necessary to achieve the government’s .interest.’ ” Marcavage,
Approximately one year before the 2015 Pride Festival, the Supreme Court decided McCullen v. Coakley, — U.S. —,
While it was uncontroverted that the buffer zones in McCullen burdened the petitioners’ speech, such a regulation could still be permissible if it were narrowly tailored to promote a significant governmental interest. Ward,
The facts specific to the present case further demonstrate that a buffer zone is not narrowly tailored to promote a significant governmental interest. The interests asserted by Defendants include “maintaining peace and order in the community,” preventing violence, and avoiding congestion. Defs.’ Mem. at 14, 16. Undoubtedly, these are legitimate governmental interests. See, e.g., Heffron v. Int’l Soc’y for Krishna Consciousness, Inc.,
The Court’s review of the video evidence and other exhibits provided by Plaintiff indicate that a buffer zone policy “burden[s] substantially more speech than is necessary to further the government’s legitimate interests.” Ward,
Additionally, Defendants’ assertion of a specific risk to Plaintiff based on the content of his speech, Defs.’ Mem. at 16, cannot justify a restriction of his First Amendment rights. See Watson v. City of Memphis,
For all of these reasons, Plaintiff has established a likelihood of success oh the merits. Also, because the enforcement of a buffer zone surrounding the entrances to the Pride Festival would not be narrowly tailored to serve a significant governmental interest, the Court does not address whether the restriction is content neutral or permits alternative channels of communication.
S. Burden of Proof
' Because Plaintiff has established a likelihood of success on the merits of his claim, the Court need not reach Defendants’ argument that the “fair ground for litigation” аlternative is unavailable in this case. See Defs.’ Mem. at 2; Oneida Nation of N.Y. v. Cuomo,
Defendants claim that the heightened preliminary injunction standard applies when the requested injunction is “mandatory” as opposed to prohibitory. See id. (quoting New York ex rel. Schneiderman v. Actavis PLC,
Nor is this a case in which Plaintiff is seeking “substantially all the relief sought and that relief cannot be undone even if the defendant prevails at a trial.” Defs.’ Mem. at 2 (quoting Actavis,
In either case, the Court also finds that Plaintiff has established a substantial likelihood of success on the merits. Defendants have submitted no evidence rebutting Plaintiffs affidavit and exhibits, agree that Plaintiffs speech is subject to First Amendment protections, and admit that the sidewalks surrounding the entrance to
B. Other Preliminary Injunction Factors
' While, “in the First Amendment context, ., ‘ the likelihood of success on the merits is the dominant, if not the dispositive, factor,” N.Y. Progress & Prot. PAC v. Walsh,
1. Irreparable Harm
First, “[w]here a plaintiff alleges injury from a rule or regulation that directly limits speech, the irreparable nature of the harm may be presumed.” Bronx Household of Faith v. Bd. of Educ.,
Defendants argue that this presumption is inapplicable because the complained-of policy “may only potentially affect speech,” Defs.’ Mem. at 6-7 (quoting Bronx Household,
2. Balance of Equities
Second, in determining whether the balance of equities tips in Plaintiffs favor, the Court “must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.” Winter,
The Court recognizes the additional effort that may be required in order to maintain the peace and prevent foot-traffic congestion without removing Plaintiff, and that the job of law enforcement in protecting citizens at public events is both difficult and serious. This increased burden, however, cannot upset Plaintiffs constitutional right to free speech, especially when—as discussed above—there are other, less restrictive alternatives by which Defendants’ legitimate governmental objectives could be achieved.
S. Public Interest
Third, the Court finds that the issuance of the requеsted injunction serves the public interest. While the Court generally assumes that the acts of a governmental entity are aligned with the interests of the public it serves, see N.Y. Progress & Prot. PAC,
C. Laches
In addition to their arguments that Plaintiff failed to meet his burden as to the preliminary injunction factors, Defendants alternatively assert the defense of laches. As Defendants note, “[l]aches is an equitable defense which bars injunctive relief where a plaintiff unreasonably delays in commencing an action.” Tri-Star Pictures, Inc. v. Leisure Time Prods., B.V.,
In this case, Plaintiff did not unreasonably delay his motion for a preliminary injunction, and Defendants were hot prejudiced by any reliance on this delay. Defendants point to the 2014 Pride Festival as the date “that [Plaintiff] took Constitutional issue with the City’s policies,” Defs.’ Mem. at 21, but any delay in litigation between the 2014 and 2015 festivals came as a result of the parties’ settlement correspondence and Plaintiffs belief that he would not be barred from demonstrating at the 2015 Festival, see Pl.’s Aff. ¶¶ 43-47; PL’s Exs. G-I. When Plaintiff was again barred from demonstrating on the sidewalk outside of the 2015 Festival, he filed this action well within one year of this
Nor can Defendants point to any way in which they were prejudiced by Plaintiff’s delay. Plaintiffs prompt filing of his Motion afforded Defendants a full, unexpedit-ed briefing schedule in accordance with the Local Rules of this District. See L.R. 7.1(b). Defendants’ complaint that a limited time now remains between the date of this Decision and the 2016 Pride Festival cannot establish prejudice when they are only being ordered not to take some action against the Plaintiff. None of the cases cited by Defendants—cases in which the motions were filed just days before the events in question, and in which the defendants were consequently limited in their ability to respond—command any different result. See Defs.’ Mem. at 20-21; see also N.Y. Progress & Prot. PAC,
D. Security
Under the Federal Rules of Civil Procedure, the Court may not issue a preliminary injunction without first determining an appropriate security “in an amount that the court considers proper to pay the costs -and damages sustained by any party found to have been wrongfully enjoined or restrained.” Fed. R. Civ. P. 65(c); see also Corning Inc. v. PicVue Elecs., Ltd.,
IY. CONCLUSION
Accordingly, it is hereby:
ORDERED, that, for the reasons stated above, Plaintiffs Motion (Dkt. No. 6-1) for preliminary injunction is GRANTED; and it is further
ORDERED, that Defendants in this action are enjoined from excluding Plaintiff from or restricting his ability to demonstrate in the areas surrounding the entranсes to the 2016 CNY Pride Festival based on the establishment of a buffer zone; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Memorandum-Decision and Order on all parties in accordance with the Local Rules.
IT IS SO ORDERED.
Notes
. The three named officer Defendants are Chief of Police Frank Fowler, Captain Joseph Sweeny, and Sergeant Jamey Locastro.
. The video recordings provided by Plaintiff show a relatively normal degree of pedestrian traffic and no congestion in this area at the time in question (excepting, perhaps, a small crowd that was observing Plaintiff’s police interaction and that appears to have later dispersed). See Pl.’s Ex. D; PL’s Ex. F.
. It is unclear to the Court how the permit itself would serve to exclude Plaintiff or other protestors from the area it encompasses, provided that Plaintiff complies with any other applicable city ordinances. See Syracuse, N.Y., Code of Ordinances § 16-35 (defining permits as a requirement in order for persons to “assemble, congregate, parade or march in or through any of the streets of the city,” and not as limiting the rights of others to access the areas in question). As such, it appears that the removal of' Plaintiff was instead based on some other policy (though the Court was unable to find any other applicable ordinance) or an ad hoc determination by the officers assigned to the event.
. Plaintiff’s counsel also complained that the City did not address his request for nominal damages and attorney’s fees. Pl.’s Ex. I.
. Capt. Sweeny also noted that a permit was required for Plaintiff to use a sound amplification device. Pl.’s Ex. K at 0:33-0:52; see also Syracuse, N.Y., Code of Ordinances § 40-16 (restricting the use of sound amplifiers). Plaintiff did not raise a claim related to his use of the sound amplifier in his Complaint or Motion.
. Mr. Doyle was also the author of the City’s letter discussed above. Pl.’s Ex. H.
. The Answer denies knowledge or information for some 79 sequential paragraphs of factual allegations, among others. This includes the denial of "knowledge or information sufficient to form a belief” as to direct quotes of the named Defendants in this action, which were also captured on video provided to Defendants prior to when they filed their Answer. See, e.g,, Compl. ¶ 54; PL's Ex. D; Answer ¶ 54; see also Fed. R. Civ. P. 11(b) (noting that "denials of factual allegations” must be "reasonably based on ... a lack of information” determined "after an inquiry reasonable under the circumstances”).
. Defendants later filed a new Declaration with an updated version of this bulletin, reflecting formatting changes from the original , version filed with the Court. Dkt. No. 19.
. The bulletin also attaches an earlier bulletin and other ordinance sections discussing sound reproduction/amplification and the rights of religiоus and other organizations, but neither of these discuss the interplay between the rights discussed therein and the issuance of a permit for a public assembly such as the CNY Pride Festival. See Defs.’ Ex. A.
. Restrictions that are content specific can still be upheld, but only if they satisfy strict scrutiny, i.e., “the restriction must be narrowly tailored to serve a compelling government interest.” Pleasant Grove,
. It appears that much of this grouping occurred when bystanders stopped to observe Plaintiffs interaction with the police, and not as a result of his typical "open-air preaching.” Compare Pl.’s Exs. D, K, with PL’s Exs. F, L. Given the current procedural posture of this case, however, the Court assumes that such a crowd would have existed regardless of Defendants’ actions.
. The Bronx Household court itself noted this distinction, calling ”[w]hatever tension may be said to exist in our case law ... more apparent than real” and explaining the difference between direct and potential restrictions on speech.