Public park speech case goes to trial

Protesters Ousted From Park During Celebration of Israel Must Show Free Speech Violations at Trial

Joel Stashenko
New York Law Journal
September 08, 2010

ALBANY - Kingston police officers did not necessarily violate the constitutional rights of pro-Palestinian protesters by ordering them out of a city-owned park where local Jews were celebrating the 60th anniversary of the formation of Israel, a judge has ruled.

Northern District Judge Lawrence E. Kahn denied summary judgment to the Middle East Crisis Response and 11 of its members for the city's alleged violation of their constitutional free-speech and equal-protection rights during a May 4, 2008 protest.
The case will now go to trial to resolve what the judge said in Middle East Crisis Response v. City of Kingston, 1:08-cv-0690, was an "ambiguity" about the actions and motivations of the police.

Judge Kahn wrote that the First Amendment does not guarantee the right of an individual to express his views at any time or place or in any manner of his own choosing. "Reasonable restrictions" may be placed on protected speech, especially if the restrictions are not based on content and are "narrowly tailored to serve a significant governmental interest," the judge said, quoting Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288 (1984).

Here, he said that "There exist issues of material fact as to whether the actions of Defendant officers were motivated by the content of Plaintiffs' speech, as Plaintiffs' argue, or whether the measures were taken in furtherance of public safety," the judge observed.

Based on the preliminary papers, a "reasonable jury" might well find either that the police officers were justified in ordering the Middle East Crisis Response members out of the park to avoid a confrontation, or that they should have allowed the protesters to stay in an area safely removed from the Jewish celebrants, the judge ruled.

"This ambiguity demonstrates an issue of fact as to whether the conduct of Defendant officers was warranted in order to further the City's interest in public safety and order, and whether their actions were narrowly tailored to further this interest," Judge Kahn held.

According to the ruling, members of the Ulster County Jewish Federation had received permission from the city to use Kingston's T.R. Gallo Waterfront Park for the commemoration of the anniversary of Israel's birth. The event, which attracted more than 100 people, was co-sponsored by the city and open to the public.

About a dozen members of Middle East Crisis Response gathered outside the park to leaflet and display signs protesting Israeli and American policies in the Middle East. Some protesters entered the park and ended up in what one police officers calls "heated" discussions with Jews.

When Kingston Sergeant James Maisenhelder arrived, four or five protesters and several of the Jewish celebrants were only a foot apart, appeared to be moving toward each other and were yelling.

At that point, according to Judge Kahn, Sergeant Maisenhelder ordered the protesters to leave and relocated them to a designated "protest area" on a public street outside the park. The sergeant also prohibited the protesters from displaying signs or leafletting.

Judge Kahn noted that the protesters still could get their message out despite the restrictions.

"Plaintiffs … contend that the location was not an ample alternative because their protest was pointless when removed from the context of the celebration," the judge wrote. "Plaintiffs, however, were not protesting the celebration itself, rather they were protesting and advocating political issues in connection with the State of Israel that may or may not have been directly implicated by the celebration."
According to its Web site, the protesters are part of a Woodstock-based group of Hudson Valley residents "joined in support of human rights for Palestinians and an end to the US's aggressive policies in the Middle East."

The group was formed after the Israel-Gaza conflict of 2006.

Judge Kahn rejected a facial challenge the plaintiffs made to Kingston's permit and insurance policies for use of city parks. The plaintiffs failed to show how the policy was used to suppress free speech, Judge Kahn wrote.

He also noted that no permit is needed to use the Gallo Waterfront park.

Judge Kahn also refused to grant summary judgment to the group on its equal protection clause violation claim. The clause is invoked when First Amendment activities are regulated based on their content, but the judge ruled that whether police acted because of the content of the group's political message remains an issue of material fact.

Stephen Bergstein, attorney for the protesters, said in an interview that the participants captured 95 percent of their protest on video.

The video was not mentioned in the judge's ruling.

Among other things, Mr. Bergstein said in an interview, the video shows that there was ample room to relocate the protesters within the park. It also shows Sergeant Maisenhelder saying, "I am the law" when protesters argue that evicting them from the park is against the law, Mr. Bergstein said.

"We go to trial from here," said Mr. Bergstein, of the Bergstein, Ullrich Law Firm of Chester. "We are disappointed that we did not get summary judgment. …We moved for summary judgment because we thought as a matter of law moving the protesters out of the park was a violation of the First Amendment."

Robert S. Cook of Cook, Netter, Cloonan, Kurtz, & Murphy of Kingston represented the city and the police officers.

Mr. Cook said yesterday that while his opponents may well go to trial, he was "pleased" and "satisfied" with the decision from Judge Kahn.
"There are questions of fact, but the judge said that a reasonable jury might find that the officers were acting to maintain peace and order, based on the facts presented him," Mr. Cook said.

The action names as defendants the city of Kingston and four of its policemen: Sergeant Maisenhelder, Officers William Hadsel, Scott Williams and Harry Woltman.
The city did not file a motion for summary judgment on its own behalf.