No.

13-____ _____________________________________
In the Supreme Court of the United States
=====***=====

ROBERT LEDERMAN and JACK NESBITT, -v.-

Petitioners,

NEW 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, _______________________________________
On Petition for a Writ of Certiorari to the United States Court of Appeals for the Second Circuit

Respondents.

PETITION FOR A WRIT OF CERTIORARI Julie M. Milner* Svetlana Minevich MILNER LAW OFFICE, PLLC 8302A Broadway, Third Floor Suite Elmhurst, NY 11373 (718) 766-5242 civ.rights.esq@gmail.com

_______________________________________

Attorneys for Petitioners * Counsel of Record, Admission Pending

QUESTIONS PRESENTED The Parks Department of the City of New York in 2010 revised the park rules in such a manner as to foreclose almost the entire interior and much of the exterior public parkland to artists wishing to display and sell their art. Now only a handful of artists who arrive at pre-dawn hours to compete for a few medallion spaces located in undesirable areas mostly on the perimeter of the parks on the Citys sidewalks may legally express themselves by showing or selling art through use of an easel, hand cart or display table. Petitioners were denied meaningful discovery when the District Court issued a protective order shielding high level government officials with direct knowledge from being deposed. The new rule articulated by the Second Circuit effectively bars future litigants from deposing those officials, even where they were directly involved in the violations. Four questions are presented: 1. Whether the Second Circuit applied an abuse of discretion standard of review notwithstanding articulating the correct de novo standard when the summary judgment dismissal was upheld despite the existence of facts in controversy. 2. Whether the Second Circuit erred in deciding the Revised Park Rules are content

ii

neutral when on their face they target so-called Expressive Matter Vendors who sell and as applied they only target visual artists who display or sell. 3. Even if this Court finds that the Revised Park Rules are content neutral, whether they are reasonable time, place and manner regulations when they foreclose almost the entire interior of the Citys parkland and severely restrict the use of Citys sidewalks adjacent to parks for artists wishing to display or vend their art. 4. Whether the new exceptional circumstances standard announced for deposing high level officials offends Due Process where the official is a named defendant and is accused of civil rights violations, or a third party material witness with direct knowledge.

iii

PARTIES TO THE PROCEEDING All petitioners and respondents are listed in the caption. CORPORATE DISCLOSURE STATEMENT The City of New York is a municipality, and the New York City Department of Parks and Recreation is a municipal agency.

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TABLE OF CONTENTS

QUESTIONS PRESENTED..i PARTIES TO THE PROCEEDING .... iii CORPORATE DISCLOSURE STATEMENT .. iii TABLE OF CONTENTS .iv

Page

TABLE OF AUTHORITIES .. vi TABLE OF APPENDICES ...xiv OPINIONS BELOW . 1 JURISDICTION 1 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED.. 1 STATEMENT OF THE CASE ... 6 REASONS FOR GRANTING THE PETITION.... 14 I. PRESSING AND PERSISTENT CONSTITUTIONAL QUESTIONS MUST BE RESOLVED CONCERNING A MUNICIPALITYS RESTRICTIONS ON EXPRESSIVE ACTIVITY ON PUBLIC LAND... 15

II. INCONSISTENCIES AMONG THE CIRCUITS MUST BE RESOLVED REGARDING DEPOSITIONS OF HIGH LEVEL GOVERNMENT OFFICIALS.. 17 CONCLUSION 22

vi

TABLE OF AUTHORITIES Cases

Page

Alberto v. Toyota Motor. Corp.,

289 Mich. App. 328, 796 N.W.2d 490 (2010) . 18 121 (D. Conn. 1974) 13

Amherst Leasing Corp. v. Emhart Corp., 65 F.R.D. Atkinson v. Goord,

01 Civ. 0761 (LAK) (HBP), 03 Civ. 7759 (LAK) (HBP), 2009 WL 890682 (S.D.N.Y. Apr. 2, 2009) .... 12 141 F.R.D. 332 (M.D.Ala.1991) ... 20 97 F.3d 689 (2d Cir. 1996) . 15, 16 489 F.3d 417 (1st Cir. 2007) . 17 599 F.Supp. 765 (D. D.C. 1984) ... 21 2007 OK 77, 174 P.3d 996 (OK Oct. 9, 2007) 20

Baine v. General Motors Corp., Bery v. City of New York, Bogan v. City of Boston,

Broadcasting Co. v. U.S. Info. Agency, Crest Infiniti, II, LP v. Swinton,

vii

Cifra v. General Electric Co., Citigroup, Inc. v. Holtsberg,

252 F.3d 205 (2d Cir. 2001) 8 915 So.2d 1265 (Fla. 1st DCA 2005) . 20

Community Federal Sav. & Loan Assn v. FHLBB, Crown Cent. Petroleum Corp. v. Garcia,

96 F.R.D. 619 (D.D.C. 1983) 21 904 S.W.2d 125 (Tex. 1995) .. 18

EchoStar Satellite, LLC v. Splash Media Partners LLC, 2009 WL 1328226 (D.Colo. May 11, EEOC v. Bloomberg LP,

2009) .. 20

No. 07-cv-8383 (LAP), Docket Entry # 54, (S.D.N.Y. May 5, 2009) ..... 14 936 F.2d 889 (6th Cir. 1991) 18

Elvis Presley Enter., Inc. v. Elvisly Yours, Inc., ETW Corp. v. Jireh Pub., Inc.,

332 F.3d 915 (6th Cir. 2003) 15

General Star Indemnity Company v. Atlantic Hospitality of Florida, LLC, 57 So.3d 238 Gibson v. Carmody,

(Fla. 3rd DCA 2011) . 20-21 89 Civ. 5358 (LMM), 1991 WL 161087 (S.D.N.Y. Aug.14, 1991) ... 12

viii

In re AIR CRASH AT TAIPEI, TAIWAN on October 31, 2000, MDL1394-GAF (RCX),

2002 WL 32155478 (C.D. Cal. Nov. 6, 2002) .... 20

In re Alcatel USA, Inc.,

11 S.W.3d 173 (5th Cir. 2000) . 18 205 F.R.D. 535 (S.D. Ind. 2002) .. 19

In re Bridgestone/Firestone Inc. Tires,

In re: Columbia Rio Grande Healthcare, L.P.,

977 S.W. 2d 433 (Tex. App. Corpus Cristi 1998) .. 18 197 F.3d 310 (8th Cir. 1999) 19 533 F.2d 963 (5th Cir. 1976) 18 No. 98 Civ. 2024 (LMM), 1998 WL 186753 (S.D.N.Y. Apr. 17, 1998) .. 13, 15, 16

In re United States (Holder), James v. Wallace,

Lederman v. Giuliani,

Lederman v. N.Y.C. Dep't of Parks & Recreation, passim

901 F. Supp. 2d 464 (S.D.N.Y. 2012) .. in

Lederman v. N.Y.C. Dep't of Parks & Recreation, _F.3d __ (2d Cir. September 25, 2013) . in passim

ix

Leroy v. City of Houston,

906 F.2d 1068 (5th Cir. 1990) . 18 879 F.2d 212 (6th Cir. 1989) .. 18

Lewelling v. Farmers Ins. of Columbus, Inc., Liberty Mutual Ins. Co. v. Superior Court,

10 Cal.App.4th 1282, 13 Cal.Rptr.2d 363 (1992) 20 95 F. Supp. 2d 161 (S.D.N.Y. 2000) ... 13

Locurto v. Giuliani,

M.A. Porazzi Co. v. The Mormaclark, Mastrovincenzo v. City of New York, Morales v. E.D. Etnyre & Co., Mule v. Chrysler Corp., NAACP v. Hunt,

16 F.R.D. 383 (S.D.N.Y. 1951) 13 435 F.3d 78 (2d Cir. 2006) ... 16

229 F.R.D. 661 (D.N.M. 2005) . 20 106 F.R.D. 364 (D.R.I. 1985) ... 17 891 F.2d 1555 (11th Cir. 1990) ... 20

Northwestern University v. City of Evanston,

2001 WL 743756 (N.D. Ill., 2001) ... 19

Oba Hassan Wat Bey, et al., v. City of New York Olivieri v. Rodriguez,

99 Civ. 3873 (S.D.N.Y. August 2, 2007) 13 122 F.3d 406 (7th Cir. 1997) 19 20 F.R.D. 228 (S.D.N.Y. 1956) . 13 203 F. Supp. 2d 261 (E.D.N.Y. 2002) . 14 281 F.3d 676 (7th Cir. 2002) 19

Overseas Exchange Corp. v. Inwood Motors, Inc., Padberg, et al. v. McGrath-McKechnie, Patterson v. Avery Dennison Corp.,

Pisani v. Westchester County Health Care Corp.,

05 Civ. 7113 (WCC), 2007 WL 107747 (S.D.N.Y. Jan. 16, 2007) 12 593 F.2d 649 (5th Cir. 1979) 18

Salter v. Upjohn Co.,

Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105 (1991) .. 9 Six W. Retail Acquisition v. Sony Theatre Mgmt. Corp., 203 F.R.D. 98 (S.D.N.Y. 2001) . 13 Speadmark Inc. v. Federated Department Stores Inc., 176 F.R.D. 116 (S.D.N.Y. 1997) . 13

xi

State ex rel. Ford Motor Company v. Messina, State of Florida v. Trevous, et al.,

71 S.W.3d 602 (Mo. 2002) . 19 (Seventh Judicial Circuit, St. Johns County Case Nos: 07000015MOMA, 07000041MOMA; & 07000067MOMA) . 16 193 F.3d 581(2d Cir.1999) .. 7 05 Civ. 1814 (JS) (ARL), 2006 WL 1982687(E.D.N.Y. Jul. 13, 2006) . 12 116 F.R.D. 140 (D. Mass. 1987) .. 17

Tenenbaum v. Williams,

Toussie v. County of Suffolk,

Travelers Rental Co. v. Ford Motor Co., Tye v. City of Jacksonville, Florida, United States v. Morgan,

707 F.Supp. 1298 (M.D. Fla., 1989) 21

313 U.S. 409 (1941) .... 12

United States of American and The Vulcan Society, Inc. v. City of New York, 07-cv-2067
(E.D.N.Y. August 5, 2009) . 12, 14

Wantanabe Realty Corp. v. City of New York,

2002 WL 31075822 (S.D.N.Y., 2002) .. 14

xii

Ward v. Rock Against Racism,

491 U.S. 781 (1989) .. 9

WebSide Story, Inc. v. NetRatings, Inc.,

No. 06cv408, 2007 WL 1120567 (S.D. Cal. Apr. 6, 2007) .... 19 267 F.Supp 2d 559 (E.D. LA, 2003) ... 16 500 F.3d 953 (9th Cir. 2007) . 15, 16

Wexler v. City of New Orleans, White v. City of Sparks,

Constitutional Provisions U.S. Const., amend. I (Speech) . in passim XIV (Due Process) . 3, 17 Statutory Provisions 28 U.S.C. 1254(1) .. 1 42 U.S.C. 1983, 1985, 1986 1, 14 Rules Fed. R. Civ. P. 26(c)(1) ...19 Fed. R. Civ. P. 56 .. 7 Regulations 56 Rules of the City of New York ("R.C.N.Y.") 1-02, 1-05, 1-06 in passim

xiii

Tertiary Sources Bekiempis, Victoria, New York Citys War On Artists, Newsweek, December 9, 2013 (available online at: http://www.newsweek. com/new-york-citys-war-artists-224075).... 17

xiv

TABLE OF APPENDICES APPENDIX A:

Page

Opinion of the Second Circuit Court of Appeals affirming the District Court 1a APPENDIX B: United States District Court for the Southern District of New York granting summary judgment ... 10a APPENDIX C United States District Court for the Southern District of New York granting protective order barring depositions .. 48

OPINIONS BELOW The Second Circuits opinion (Pet. App. 1) is available at Lederman v. N.Y.C. Dep't of Parks & Recreation, _F.3d __ (2d Cir. September 25, 2013). The District Courts summary judgment opinion is reported at Lederman v. N.Y.C. Dep't of Parks & Recreation, 901 F. Supp. 2d 464 (S.D.N.Y. 2012). JURISDICTION This Courts jurisdiction is invoked pursuant to 28 U.S.C. 1254(1). The judgment of the Second Circuit was entered on September 25, 2013. CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED Relevant constitutional and statutory provisions are U.S. Const., amend. I (Freedom of Speech); U.S. Const., amend. IV (Due Process); 42 U.S.C. 1983 (Civil Rights); and 56 Rules of the City of New York ("R.C.N.Y.") 1-02, 1-05, 1-06. The most relevant portions provide as follows: First Amendment Congress shall make no law... abridging the freedom of speech.

Fourteenth Amendment No person shall be deprived of property without due process of law. 1983 Every person who, under color of any regulation, custom or usage subjects, or causes to be subjected, any citizento the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured R.C.N.Y. 1-05(b) (b) Unlawful Vending. (2) Persons may vend expressive matter without a permit, but must comply with all applicable provisions of these rules. However, in the specific locations enumerated in paragraph (3) expressive matter vendors may only vend expressive matter at the specifically designated spots unless they are only vending expressive matter without using a cart, display stand or other device and without occupying a specific location for longer than necessary to conduct a transaction and are otherwise in compliance with Department rules.

(3) Expressive matter vendors may not vend in the following general areas unless they vend at the specifically designated spots for such vending on the accompanying maps and in compliance with all other applicable Department rules: (i) Central Park at the following locations: (A) the perimeter of the park between East 85th Street and East 60th Street, including all sidewalks and plazas (B) the perimeter of the park between West 86th Street and West 60th Street, including all sidewalks and plazas (C) all of Central Park South, including all sidewalks and plazas (D)Wien Walk and Wallach Walk, (E) pedestrian pathways parallel to East Drive between Grand Army Plaza and the Center Drive, (F) Grand Army Plaza, (G) Pulitzer Plaza, and (H) Columbus Circle. (ii) Battery Park, including all perimeter sidewalks.

(iii) Union Square Park, including all perimeter sidewalks. (iv) Elevated portions of High Line Park. (4)(i) No vendor in or on any property under the jurisdiction of the Department shall allow any item or items used or offered in conjunction with vending to touch, lean against or be affixed permanently or temporarily to any street or park furniture installed on public property or any rock formation, tree, shrub or other planting. (ii) No vendor shall block any person from using any street or park furniture installed on public property by way of the vending activity. (iii) No vendor shall vend anything in such a manner that would damage or otherwise injure Department property, including, but not limited to lawns, plants, animals or buildings (vii) No vendor shall vend anything in an unsuitable location because the location is a specialized area including, but not limited to, a zoo, swimming pool, playground, athletic field or court, or skating rink; (5) No vendor shall vend anything whatsoever using a display stand that:

(i) provides less than a twelve (12) foot wide clear pedestrian path measured from the display on the sidewalk or park path to the opposite edge of the sidewalk or park path, except that when there is street or park furniture on the pedestrian path the measurement must be taken from the display to two feet from the street or park furniture in order to determine whether there is less than a twelve (12) foot wide clear pedestrian path; (ii) is placed on any other part of a sidewalk under the Departments jurisdiction other than that which abuts the curb, unless otherwise authorized; (iii) is within any bus stop, carriage horse stand, pedicab stand, or taxi stand, or is within ten (10) feet of any subway entrance or exit; (iv) is within five (5) feet from any street or park furniture, public telephone, disabled access ramp, tree, or from individuals or entities authorized by permit or license by the Commissioner to operate at a specific location; (v) is within ten (10) feet from any crosswalk on any path or on any sidewalk under the jurisdiction of the Department;

(vi) is placed within fifty (50) feet from any monument or other public art installation, including, but not limited to ornamental fountains; (7) For the purposes of this section, street or park furniture shall mean any City-installed, maintained or approved structure, including but not limited to, benches, newspaper boxes, tree guards, fire hydrants, trash receptacles, telephone kiosks, newsstands, bus shelters, barricades, bollards, traffic signs, traffic lights, walls, water fountains, or fences located in any property under the jurisdiction of the Department[.] STATEMENT OF THE CASE Since 2010, the New York City Parks Department has implemented a rule revision that forecloses most of the interior parkland and much of the exterior adjacent sidewalks to artists displaying and vending their art. Other favored speakers, including corporate interests that pay fees to the Parks Department, are not similarly restricted. This creates an anomaly where purely commercial speech is more protected than expression which is sold. 1. The Second Circuit panel failed to address petitioners argument that the District Court judge ignored five crucial fact controversies. The Second Circuit must review a district court's

grant of summary judgment de novo, construing the evidence in the light most favorable to the nonmoving party. Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir.1999). Petitioners were entitled to a de novo review, and the Second Circuit panel articulated this standard in its decision. But it is clear that the panel instead gave blind deference to the decision below when it found the Revised Park Rules to be content neutral and leaving open ample alternative channels. A single fact controversy is sufficient to overcome a summary judgment motion. Fed. R. Civ. P. 56(e). The petitioners submitted sufficient evidence to make a prima facie showing that artists were (a) treated worse than any other parkgoer; (b) treated differently from other socalled Expressive Matter Vendors, especially performers, based on the messages they conveyed; (c) targeted based on animus; (d) regulated more restrictively than purely commercial interests; and (e) foreclosed from seeking a general vendor permit as an alternative because the waiting list has been closed to new applicants since 1993. The Second Circuit ignored these controversies and deferred to the "District Court's thorough and well-reasoned opinion" in affirming the dismissal of Petitioners' case. Lederman v. N.Y.C. Dep't of Parks & Recreation, _F.3d __, p. 7 (2d Cir. September 25, 2013). The Second Circuit panel also failed to address petitioners argument that the District

Court judge tried the facts in the movants favor. Petitioners were entitled to all reasonable inferences. Cifra v. General Electric Co., 252 F.3d 205, 216 (2d Cir. 2001). Yet the District Court assessed credibility in favor of the movants even where petitioners presented evidence to the contrary showing (a) respondents were not truthful when they asserted they were forced by a state court decision to suspend enforcement of the revised rules against performers, because their official statements to the press proved that the decision to suspend enforcement predated the state court decision by at least three months; (b) the respondents internal documents indicated that artists alone and no other type of so-called expressive matter vendor were to be targeted for enforcement; (c) respondents conclusory assertion that much of the 2,700 acres of parkland in Manhattan is still available to artists is patently false because none of the respondents could articulate one single bona fide legal spot outside the medallions; and (d) the respondents proffered reasons for the revised rules were pretextual because the respondents solicited corporate vendors in the very areas they had foreclosed to artists. 2. The Second Circuit panel gave deference to the District Court judges rejection of strict scrutiny despite the rule revisions being content-based on their face and as applied. Laws that single out income derived from expressive activity for a burden the State places on no other

income are content-based. Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 116 (1991). Not only does the revision facially target expression, but an impermissible distinction was made between art that is displayed and art that is sold despite Respondents acknowledgment that both have the same impact on parkland. The new rules expressly allow artists to display without selling, which impermissibly discriminates against speech that is sold. However, a secret internal enforcement memo revealed a policy to ticket artists display only set-ups anyway as if they were selling. There was a policy to target artists only for their displays while observing a hands-off policy towards other so-called Expressive Matter Vendors such as performers. The courts below ignored these arguments. 3. The rule revision still fails under intermediate scrutiny because there are no ample alternative channels. Regulations cannot stand if sufficient alternative avenues of communication are not left open. Ward v. Rock Against Racism, 491 U.S. 781, 802 (1989). The Second Circuit ignored Petitioners argument that the new rules prohibitions foreclosed almost the entire citys parkland to artists, and incredulously found that all remaining park areas [outside the medallion spots are] open for vending. Lederman v. N.Y.C. Dep't of Parks & Recreation, _F.3d __, p. 7 (2d Cir. September 25, 2013). Had the Second Circuit panel

10

accorded Petitioners the de novo review to which they were entitled, a simple reading of the entire relevant portions of the revised rules and common sense would have debunked this erroneous assumption. The panel instead gave broad deference to J. Sullivans flawed fact-finding where he endorsed the conclusory and patently false assertion of the Respondents that a significant amount of the Parks Departments 2700 acres of parkland in Manhattan is available to expressive matter vendors (Lederman v. N.Y.C. Dep't of Parks & Recreation, 901 F. Supp. 2d 464, 478 S.D.N.Y. 2012)), citing in their decision to RCNY 1-05(b)(2) which states in relevant part that Persons may vend expressive matter without a permit, but must comply with all applicable provisions of these rules. However, compliance with all the other provisions necessarily forecloses most of the parkland. For instance, there can be no art displayed anywhere other than a curb or edge of a pathway RCNY 1-05(b)(5)(ii). The lawn and other interior land is prohibited 1-05(b)(4)(i)(iii). Once a sidewalk or pathway is found, it must have a minimum 15-ft width because the new rule increases the clearance from the art display to the other side of the pathway by 3-ft. The old rule only required a 12-ft clearance from one side of the pathway to the opposite side, which left a good

11

amount of pathways and sidewalks available. The new rule requires a 12-ft clearance from the art display 1-05(b)(5)(ii)[emphasis added], which is three feet in depth 1-05(b)(5)(viii). However, there are very few areas that have the newly required 15-ft width. The extra 3-ft had the design and effect to foreclose most of the 58 miles of pathways within the parks to artists. Even if an artist is lucky enough to stumble upon a 15-ft wide pathway, the new rules further prohibit artists from, inter alia, being 5-ft from any park bench, tree, fence, sign, or other structure (which is broadly defined), and 50-ft from a monument or public art display, or anywhere near a special use area such as zoos, pools, playgrounds, fields, courts or rinks 1-05(b)(4)vii). Moreover, not a single Parks official, including the Commissioner himself, could articulate a single legal spot outside the medallions in any park in the entire city of New York. Thus this fact controversy alone was sufficient enough to defeat the summary judgment motion. 4. In articulating a new exceptional circumstances standard for deposing any high governmental official, the Second Circuit placed an insurmountable hurdle on future litigants complaining of constitutional and other torts committed by those officials. This Court never intended the standard to bar depositions of named defendants or material witnesses with direct

12

knowledge, but rather protect a high ranking official called merely to testify regarding the reasons for taking official action. United States v. Morgan, 313 U.S. 409, 422 (1941). The Second Circuits ruling is out of sync with the other circuits (as discussed infra) as well as the long established practice in its own district courts. A municipal policymaker cannot avoid being deposed if he "has been personally involved in the events at issue in the case." Toussie v. County of Suffolk, 05 Civ. 1814 (JS) (ARL), 2006 WL 1982687, at *2 (E.D.N.Y. Jul. 13, 2006) (Lindsay, MJ.) Personal involvement is broadly defined, such as where an official has engaged in conversations related directly to the claim, Pisani v. Westchester County Health Care Corp., 05 Civ. 7113 (WCC), 2007 WL 107747, at *3 (S.D.N.Y. Jan. 16, 2007) (Conner, DJ.); has reviewed and made decisions concerning the case, Atkinson v. Goord, 01 Civ. 0761 (LAK) (HBP), 03 Civ. 7759 (LAK) (HBP), 2009 WL 890682, at *2 (S.D.N.Y. Apr. 2, 2009) (Pitman, MJ.); or made public statements relate to the case, Gibson v. Carmody, 89 Civ. 5358 (LMM), 1991 WL 161087, at*1 (S.D.N.Y.Aug.14, 1991)(McKenna, DJ.). Thus, in United States v. City of New York, Judge Garaufis allowed the plaintiffs to depose Mayor Bloomberg after he publicly stated that he had "chosen to fight" a lawsuit filed against the City of New York. 2009 WL 2423307, at *2 (E.D.N.Y. Aug. 5, 2009).

13

The Southern District has consistently declined to issue protective orders where there is evidence of direct knowledge. See Six W. Retail Acquisition v. Sony Theatre Mgmt. Corp., 203 F.R.D. 98, 10206 (S.D.N.Y. 2001); Speadmark Inc. v. Federated Department Stores Inc., 176 F.R.D. 116 (S.D.N.Y. 1997); Overseas Exchange Corp. v. Inwood Motors, Inc., 20 F.R.D. 228 (S.D.N.Y. 1956). If knowledge is disputed, both the Southern District and the District Court of Connecticut have deferred protective orders until lower level parties could be deposed to ascertain whether the higher level individual has unique knowledge. See M.A. Porazzi Co. v. The Mormaclark, 16 F.R.D. 383 (S.D.N.Y. 1951); Amherst Leasing Corp. v. Emhart Corp., 65 F.R.D. 121, 123 (D. Conn. 1974). In Amherst, the district judge even ordered the deposition of a high level officer who claimed he had no knowledge in order to allow the deposing party an opportunity to test his knowledge. Id. at 122. Even in cases involving deposing the sitting mayor, the Southern District has continually denied protective orders where the deponent failed to show he did not possess direct knowledge. See Lederman v. Giuliani, No. 98 Civ. 2024 (LMM), 1998 WL 186753 (S.D.N.Y., April 17, 1988); Locurto v. Giuliani, 95 F. Supp. 2d 161 (S.D.N.Y. 2000); Oba Hassan Wat Bey, et al., v. City of New York, et al., 99 Civ. 3873(LMM)(RLE) (S.D.N.Y.

14

August 2, 2007); Padberg, et al. v. McGrathMcKechnie, 203 F. Supp. 2d 261 (E.D.N.Y. 2002); Wantanabe Realty Corp. v. City of New York, 2002 WL 31075822 (S.D. N.Y., 2002); EEOC v. Bloomberg LP, No. 07-cv-8383 (LAP), Docket Entry # 54, (S.D.N.Y. May 5, 2009); United States of

American and The Vulcan Society, Inc. v. City of New York, 07-cv-2067(NGG)(RLM), Docket Entry
#301 (E.D.N.Y. August 5, 2009). Here, the standard long practiced in the Southern District for deposing high level government officials was easily met because of the Mayors direct involvement, his statements to the press and both the Mayors and his Deputys communications and interactions with the lead Petitioner. Thus Petitioners were entitled to depose both because they possess direct knowledge and other relevant evidence pertaining to the Petitioners 1985 and 1986 conspiracy claims. REASONS FOR GRANTING THE PETITION This case offers this honorable Court an ideal vehicle to resolve pressing and persistent constitutional questions arising out of a municipalitys restrictions on expressive activity in public land. This case further offers this Court an opportunity to resolve inconsistencies among the

15

circuits regarding depositions government officials. I.

of

high

level

PRESSING AND PERSISTENT CONSTITUTIONAL QUESTIONS MUST BE RESOLVED CONCERNING A MUNICIPALITYS RESTRICTIONS ON EXPRESSIVE ACTIVITY ON PUBLIC LAND.

Petitioners are artists who are challenging the park rules on several grounds, including the First and Fourteenth Amendments. They believe that the regulations violate their right to freedom of expression, that the Citys stated interest in protecting the aesthetics of the parks, balancing usage, and preventing congestion are pretextual, and that visual artists are unfairly targeted to be eradicated in order to advance the purely commercial interests of corporate vendors who pay the Parks Department a premium to use the land. Only three circuits have held that art is entitled to full First Amendment protection, even if sold. Bery v. City of New York, 97 F.3d 689, 696 (2d Cir. 1996) cert. den., 520 U.S. 1251 (1997); ETW Corp. v. Jireh Pub., Inc., 332 F.3d 915, 924-37 (6th Cir. 2003); White v. City of Sparks, 500 F.3d 953, 956 (9th Cir. 2007). The Second Circuit has ruled that the City cannot require permits on the sidewalks (Bery at 713) or in the parks. Lederman v. Giuliani, No. 98 Civ. 2024 (LMM), 1998 WL 186753 (S.D.N.Y. Apr. 17, 1998).

16

Other jurisdictions afford less protection under an expression classification, and have even banned the sale of art in public places like Honolulu and parts of Florida; required general vending permits, such as in Seattle; and imposed special permits for expression, such as in Los Angeles and Miami. Some artists have been successful in securing their First Amendment rights. A town in Maryland reached a pre-litigation settlement to exempt artists from the permit requirement. Book sellers were able to overturn a ban in New Orleans. Wexler v. City of New Orleans, 267 F.Supp 2d 559 (E.D. Louisiana, 2003). Artists overcame a permit requirement in Nevada. White v. City of Sparks. And a Florida criminal court used the predominant expressive purposes test from the Second Circuit (Mastrovincenzo v. City of New York, 435 F.3d 78 (2d Cir. 2006)) to find charges of vending without a permit against quilt and mask makers unconstitutional. State of Florida v. Trevous, et al., (Seventh Judicial Circuit, St. Johns County Case Nos: 07000015MOMA. 07000041MOMA; and 07000067MOMA). Despite these pyrrhic victories, many artists elsewhere have reported difficulties in raising funds to challenge these unconstitutional ordinances, or in finding pro bono, capable counsel. Because the artists line of cases in the Second Circuit (Bery, Lederman, and Mastrovincenzo) have been successfully cited to establish rights in other jurisdictions, many artists across America

17

have contributed what they could afford (anywhere from $5 to $100) to fund the printing of this petition. If these Petitioners rights are not vindicated, it will have an adverse domino effect on all other artists. Moreover, the national significance of this case was recently reported by Newsweek (Bekiempis, Victoria, New York Citys War On Artists, Newsweek, December 9, 2013 (available online at: http://www.newsweek.com/ new-york-citys-war-artists-224075). II. INCONSISTENCIES AMONG THE CIRCUITS MUST BE RESOLVED REGARDING THE DEPOSITIONS OF HIGH LEVEL GOVERNMENT OFFICIALS.

The Second Circuits application of the exceptional circumstances standard to affirm a protective order barring the depositions of two high level government officials with direct knowledge because Petitioners could not identify with particularity the information possessed is at odds with the jurisprudence of the other circuits. The First Circuit has also articulated the exceptional circumstances standard (Bogan v. City of Boston, 489 F.3d 417, 423 (1st Cir. 2007)), but allows depositions where the high level official was directly involved. Travelers Rental Co. v. Ford Motor Co., 116 F.R.D. 140, 145 (D. Mass. 1987); Mule v. Chrysler Corp., 106 F.R.D. 364 (D.R.I. 1985).

18

The Third and Fourth Circuits have been silent on the issue, but the Fifth and Sixth follow an apex standard which is similar to exceptional circumstances (Crown Cent. Petroleum Corp. v. Garcia, 904 S.W.2d 125 (Tex. 1995); Alberto v. Toyota Motor. Corp., 289 Mich. App. 328, 796 N.W.2d 490, 502 (2010)), and allows the deposition of a high level official who is directly involved after a good-faith effort to obtain the information through less intrusive means. See In re Alcatel USA, Inc., 11 S.W.3d 173 (5th Cir. 2000); Crown Cent., 904 S.W.2d at 128 (Tex. 1995); Leroy v. City of Houston, 906 F.2d 1068, 1073 (5th Cir. 1990). If the party resisting being deposed claims lack of knowledge, the apex doctrine requires an affidavit (In re: Columbia Rio Grande Healthcare, L.P. 977 S.W. 2d 433 (Tex. App. Corpus Cristi 1998; Elvis Presley Enter., Inc. v. Elvisly Yours, Inc., 936 F.2d 889, 894 (6th Cir. 1991)) and the opposing counsel can depose lower level officials to test whether the higher official has knowledge. Salter v. Upjohn Co., 593 F.2d 649 (5th Cir. 1979). A sitting governor could not escape being deposed because his testimony was relevant to the civil rights claims alleging his direct involvement regarding state board appointments and commissions. James v. Wallace, 533 F.2d 963, 965 (5th Cir. 1976). The Sixth Circuit protects the high level official by allowing sanctions and attorneys fees where discovery abuses occur. Lewelling v. Farmers Ins. of Columbus, Inc., 879 F.2d 212, 218 (6th Cir. 1989).

19

The Seventh Circuit does not adhere to the apex doctrine and instead utilizes FRCP 26(c) to quash burdensome discovery. Patterson v. Avery Dennison Corp., 281 F.3d 676, 681 82 (7th Cir. 2002), and has prevented high level government officials from being deposed about the performance of their official duties unless there is some reason to believe that the deposition will produce or lead to admissible evidence. Olivieri v. Rodriguez, 122 F.3d 406, 409-10 (7th Cir. 1997). However, the district court did not bar the depositions of the mayor and city manager when the judge found they likely possessed relevant information. Northwestern University v. City of Evanston, 2001 WL 743756, *4 (N.D. Ill., 2001). The Eighth Circuit follows the exceptional circumstances doctrine (In re United States (Holder), 197 F.3d 310, 316 (8th Cir. 1999)), but the district courts employ a balancing test to ensure fairness to both sides. State ex rel. Ford Motor Company v. Messina, 71 S.W.3d 602, 607 (Mo. 2002); In re Bridgestone/Firestone Inc. Tires, 205 F.R.D. 535 (S.D. Ind. 2002). The Ninth Circuit has no controlling authority, but because of discovery abuse the district courts shifted the burden to show the need to obtain the deposition of a high ranking official. WebSide Story, Inc. v. NetRatings, Inc., No. 06cv408, 2007 WL 1120567, at *3-4 (S.D. Cal. Apr. 6, 2007). However, the courts will not issue protective orders if there is a showing of direct

20

knowledge. In re AIR CRASH AT TAIPEI, TAIWAN on October 31, 2000, MDL1394-GAF (RCX), 2002 WL 32155478 (C.D. Cal.Nov. 6, 2002); Liberty Mutual Ins. Co. v. Superior Court, 10 Cal.App.4th 1282, 13 Cal.Rptr.2d 363 (1992). The Tenth Circuit is yet to resolve inconsistencies among its district courts. Colorado declined to issue a protective order where there was direct knowledge (EchoStar Satellite, LLC v. Splash Media Partners LLC, 2009 WL 1328226, *2 (D.Colo. May 11, 2009)), Oklahoma requires a burden shift to the resistor (Crest Infiniti, II, LP v. Swinton, 2007 OK 77, 174 P.3d 996), and New Mexico sets limits to avoid abuse and harassment. Morales v. E.D. Etnyre & Co., 229 F.R.D. 661 (D.N.M. 2005). In the Eleventh Circuit a protective order will not issue where there is direct knowledge. Alabama's Governors deposition was warranted regarding the law he helped legislate to allow the confederate flag to fly above the state capitol building. NAACP v. Hunt, 891 F.2d 1555, 1562 (11th Cir. 1990). However, an Alabama district court found a year later that the knowledge must be truly unique in denying access to the Vice President of General Motors. Baine v. General Motors Corp., 141 F.R.D. 332, 334 (M.D.Ala.1991). Florida, on the other hand, has not adopted the apex doctrine (Citigroup, Inc. v. Holtsberg, 915 So.2d 1265 (Fla. 1st DCA 2005); General Star

Indemnity Company v. Atlantic Hospitality of

21

and set limits to depose the Mayor of Jacksonville only when alleged to be an active participant in discriminatory conduct, including retaliation against city employees who seek legal redress for Tye v. City of perceived discrimination. Jacksonville, Florida, 707 F.Supp. 1298 (M.D. Fla., 1989). Finally the DC Circuit requires a showing by the party seeking the deposition that the high level official has unique personal knowledge, (Community Federal Sav. & Loan Assn v. FHLBB, 96 F.R.D. 619 (D.D.C. 1983)), but allows depositions of lower level officials to ascertain whether the higher official has that knowledge. Broadcasting Co. v. U.S. Info. Agency, 599 F.Supp. 765 (D. D.C. 1984). The Second Circuits imposition of the exceptional circumstances standard in this case, where the Petitioners established that the officials had direct knowledge, and the officials failed to dispute this in an affidavit, creates a per se rule that requires potential future civil rights litigants to peer into the minds of high level oppressors and material witnesses to divine detailed information to be gleaned. This new rule is out of harmony with the other circuits and creates an anomaly where high-ranking officials will be immune to suit for their civil rights abuses. Thus, this Court should grant the Petition to settle the law and resolve these aforementioned controversies.

Florida, LLC, 57 So.3d 238 (Fla. 3rd DCA 2011))

22

CONCLUSION For all the foregoing reasons, petitioners respectfully request that the Supreme Court grant review of this matter. Respectfully submitted, JULIE M. MILNER* SVETLANA MINEVICH MILNER LAW OFFICE, PLLC 8302A Broadway, Third Floor Suite Elmhurst, NY 11373 (718) 766-5242 civ.rights.esq@gmail.com
* Counsel of Record, Admission Pending Attorneys for Petitioners

APPENDIX

1a APPENDIX A Appendix OPINIONA OF THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT, DATED SEPTEMBER 25, 2013 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Docket No. 12-4333-cv August Term 2013 (Submitted: August 23, 2013 Decided: September 25, 2013) ROBERT LEDERMAN, JACK NESBITT, Plaintiffs-Appellants, v. NEW YORK CITY DEPARTMENT OF PARKS AND RECREATION, as a Municipal agency, ADRIAN BENEPE, Commissioner, in his individual and of cial capacity as Parks Commissioner, CITY OF NEW YORK, as a municipality, MICHAEL BLOOMBERG, Honorable Mayor, in his individual and of cial capacity, Defendants-Appellees. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK.

2a Appendix A Before: CABRANES, HALL, and CHIN, Circuit Judges. Appeal from a judgment of the United States District Court for the Southern District of New York (Richard J. Sullivan, J.) granting defendants-appellees motion for summary judgment, and dismissing the complaint in this First Amendment challenge to regulations governing the sale of expressive matter in New York City parks. Plaintiffs-appellants also challenge the District Courts protective order barring them from deposing the Mayor and a former deputy mayor of the City of New York. AFFIRMED. CHIN, Circuit Judge: Plaintiffs-appellants Robert Lederman and Jack Nesbitt appeal from a judgment of the United States District Court for the Southern District of New York (Richard J. Sullivan, J.), granting summary judgment to defendants-appellees New York City Department of Parks and Recreation, former Parks Commissioner Adrian Benepe, the City of New York, and Mayor Michael Bloomberg (collectively, the City), dismissing the complaint. Plaintiffs also appeal from the District Courts June 1, 2011 order granting the Citys motion for a protective order under Fed. R. Civ. P. 26(c). We af rm. BACKGROUND Plaintiffs are visual artists who sell their works on sidewalks and in public parks in New York City. Over

3a Appendix A the years, the City has attempted to regulate the sales of expressive matter including books, art, sculpture, and photos in certain parts of New York City, and plaintiffs have challenged the Citys efforts on First Amendment grounds. See, e.g., Bery v. City of New York, 97 F.3d 689 (2d Cir. 1996); Lederman v. Giuliani, No. 98 Civ. 2024 (LMM), 1998 U.S. Dist. LEXIS 5468, 1998 WL 186753 (S.D.N.Y. Apr. 17, 1998). Between 2001 and 2010, the number of expressivematter vendors increased signi cantly in certain City parks. In 2010, the City revised the vending regulations in response to this increase. See 56 Rules of the City of New York (R.C.N.Y.) 1-02, 1-05. Under the revised regulations, expressive-matter vendors may generally vend, without a permit, anywhere in the Citys parks, provided they comply with certain minimum requirements relating to their activities, such as restrictions on the size and placement of their vending tables. See id. 1-05(b)(4)-(8). To sell their wares in Union Square Park, Battery Park, High Line Park, and portions of Central Park, however, expressive-matter vendors may only vend in a limited number of designated spots, allocated on a non-discretionary rst-come, rst-served basis. See id. 1-06(b)(2)-(3). Plaintiffs commenced this action to challenge the 2010 revisions. During discovery, plaintiffs sought to take the depositions of Mayor Bloomberg and former Deputy Mayor Edward Skyler. On June 1, 2011, the District Court issued a protective order barring those depositions.

4a Appendix A On September 30, 2012, the District Court granted summary judgment to defendants, dismissing the complaint and holding, inter alia, that the 2010 revisions did not violate the First Amendment. See Lederman v. N.Y.C. Dept of Parks & Recreation, 901 F. Supp. 2d 464, 479 (S.D.N.Y. 2012). This appeal followed. DISCUSSION On appeal, plaintiffs contest: (1) the District Courts holding that the vending regulations are valid contentneutral time, place, and manner restrictions; and (2) the District Courts order barring the depositions of Mayor Bloomberg and former Deputy Mayor Skyler. We review an order granting summary judgment de novo and resolv[e] all ambiguities and draw[ ] all permissible factual inferences in favor of the party against whom summary judgment is sought. Burg v. Gosselin, 591 F.3d 95, 97 (2d Cir. 2010) (quoting Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009)). We review an order granting a protective order for abuse of discretion, which we will nd only if the district courts decision rests on an error of law or a clearly erroneous nding of fact, or if the decision cannot be located within the range of permissible outcomes. See S.E.C. v. TheStreet.Com, 273 F.3d 222, 228 & n.6 (2d Cir. 2001).

5a Appendix A A. Summary Judgment Expressive matter sold in public places is entitled to full First Amendment protection. Bery v. City of New York, 97 F.3d 689, 696 (2d Cir. 1996). Even in public forums, however, the government may impose reasonable content-neutral restrictions on the time, place, or manner of protected speech. Hous. Works, Inc. v. Kerik, 283 F.3d 471, 478 (2d Cir. 2002) (citing Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S. Ct. 2746, 105 L. Ed. 2d 661 (1989)). The Supreme Court has held that the principal inquiry in determining content neutrality . . . is whether the government has adopted a regulation of speech because of [agreement or] disagreement with the message it conveys. See Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 642, 114 S. Ct. 2445, 129 L. Ed. 2d 497 (1994) (alteration in original) (citation and internal quotation marks omitted). [L]aws that confer benets or impose burdens on speech without reference to the ideas or views expressed are in most instances content neutral. Id. at 643. Content-neutral time, place, and manner restrictions are subject to intermediate scrutiny. Mastrovincenzo v. City of New York, 435 F.3d 78, 98 (2d Cir. 2006). Such restrictions pass constitutional muster if they are narrowly tailored to serve a significant government interest, while leaving open ample alternative channels for communication of the information. Id.; see Watchtower Bible & Tract Socy of New York, Inc. v. Village of Stratton, 536 U.S. 150, 175, 122 S. Ct. 2080, 153 L. Ed. 2d 205 (2002).

6a Appendix A Plaintiffs argue, as they did before the District Court, that the vending regulations are content-based restrictions, which lack proper justication and are unduly restrictive. We agree with the District Court that the regulations are content-neutral restrictions that operate within constitutional limits. The vending regulations apply to all expressivematter vendors, regardless of the message the vendors wares convey. They were passed not in an attempt to suppress vendors ability to market their wares, but to ll a gap in the larger regulatory scheme governing vending on Parks Department property. The Citys interests here alleviating congestion and improving circulation, promoting the aesthetics of the parks, and ensuring that the parks are available to the public for a wide range of activities are indisputably signicant. The regulations are narrowly tailored because the City imposed spot designations only in the most heavily used areas, while leaving all remaining park areas open for vending. See R.C.N.Y. 1-05(b)(2)-(3). Moreover, the regulations allocate spot designations on a rst-come, rst-served basis without reference to the ideas or views expressed in the materials in question. Accordingly, we af rm the judgment of the District Court substantially for the reasons articulated in the District Courts thorough and well-reasoned opinion.

7a Appendix A B. Protective Order Plaintiffs also contend that the District Court erred by issuing a protective order in response to their request to depose Mayor Bloomberg and former Deputy Mayor Skyler. Under Rule 26(c), a party . . . may move for a protective order . . . to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense . . . forbidding the disclosure or discovery. Fed. R. Civ. P. 26(c)(1). In United States v. Morgan, 313 U.S. 409, 422, 61 S. Ct. 999, 85 L. Ed. 1429 (1941), the Supreme Court long ago expressed concern that the District Court had required a high-ranking government of cial the Secretary of Agriculture to submit to a deposition. Since then, courts have relied on Morgan to hold that a high-ranking government of cial should not absent exceptional circumstances be deposed or called to testify regarding the reasons for taking of cial action, including the manner and extent of his study of the record and his consultation with subordinates. Id.; see Bogan v. City of Boston, 489 F.3d 417, 423 (1st Cir. 2007); In re United States (Holder), 197 F.3d 310, 313-14 (8th Cir. 1999); In re FDIC, 58 F.3d 1055, 1060 (5th Cir. 1995); In re United States (Kessler), 985 F.2d 510, 512 (11th Cir. 1993); Franklin Sav. Assn v. Ryan, 922 F.2d 209, 211 (4th Cir. 1991); Simplex Time Recorder Co. v. Secretary of Labor, 766 F.2d 575, 586, 247 U.S. App. D.C. 85 (D.C. Cir. 1985); Kyle Engg Co. v. Kleppe, 600 F.2d 226, 231-

8a Appendix A 32 (9th Cir. 1979); Warren Bank v. Camp, 396 F.2d 52, 56-57 (6th Cir. 1968). We have not previously addressed this issue in a precedential decision. We now hold that, to depose a high-ranking government of cial, a party must demonstrate exceptional circumstances justifying the deposition for example, that the of cial has unique rst-hand knowledge related to the litigated claims or that the necessary information cannot be obtained through other, less burdensome or intrusive means. Bogan v. City of Boston, 489 F.3d 417, 423 (1st Cir. 2007); In re United States (Holder), 197 F.3d 310, 316 (8th Cir. 1999). Highranking government of cials are generally shielded from depositions because they have greater duties and time constraints than other witnesses. In re United States (Kessler), 985 F.2d 510, 512 (11th Cir. 1993). If courts did not limit these depositions, such of cials would spend an inordinate amount of time tending to pending litigation. Bogan, 489 F.3d at 423. Here, plaintiffs did not demonstrate exceptional circumstances. They did not identify with particularity the information they needed, nor did they contend that Bloomberg and Skyler had rst-hand knowledge about the litigated claims or that the relevant information could not be obtained elsewhere. See id. at 423. Plaintiffs argue that they had no other means of obtaining the information . . . they needed from thenCommissioner Adrian Benepe because, [w]hen deposed, Benepe claimed not to know any of the answers to the questions regarding the information plaintiffs needed from the Mayor and his former Deputy. Plaintiffs did

9a Appendix A not show, however, that Bloomberg and Skyler had the information they were seeking from Benepe.1 We conclude that the District Court did not abuse its discretion in issuing the protective order barring the depositions of Mayor Bloomberg and former Deputy Mayor Skyler. CONCLUSION We have considered all of the parties remaining arguments on appeal and nd them to be without merit. For the reasons stated above, we AFFIRM the judgment of the District Court.

1. Plaintiffs have not, in any event, preserved for appellate review their principal arguments concerning the protective order. To preserve arguments for appellate review, appellants must include in their briefs their contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies. Fed. R. App. P. 28(a)(9)(A). Issues not suf ciently argued will be deemed waived and ineligible for appellate review. Norton v. Sams Club, 145 F.3d 114, 117 (2d Cir. 1998). Appellants do not preserve questions for appellate review by [m]erely incorporating an argument made to the district court by reference in their brief. Frank v. United States, 78 F.3d 815, 833 (2d Cir. 1996), vacated on other grounds, 521 U.S. 1114, 117 S. Ct. 2501, 138 L. Ed. 2d 1007 (1997) (mem.). In their brief, plaintiffs refer to twelve points they argued in a joint letter submitted to the District Court. Plaintiffs do not, however, elaborate further as to what those twelve points are.

10a Appendix B APPENDIX B MEMORANDUM AND ORDER OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, FILED SEPTEMBER 30, 2012 UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK No. 10 Civ. 4800 (RJS) ROBERT LEDERMAN AND JACK NESBITT, Plaintiffs, versus NEW YORK CITY DEPARTMENT OF PARKS AND RECREATION, et al., Defendants. September 30, 2012 MEMORANDUM AND ORDER RICHARD J. SULLIVAN, District Judge: Plaintiffs Robert Lederman and Jack Nesbitt, visual artists who sell their work on sidewalks and in public parks in New York City (the City), bring this suit challenging the constitutionality of recent revisions to the Rules of the City of New York (R.C.N.Y.) governing where expressive matter vendors dened as sellers of books, art, and similar work may sell their wares. See

11a Appendix B 56 R.C.N.Y. 1-02, 1-05 (the Revisions). Speci cally, the Revisions contemplate that in Battery Park, Union Square Park, the High Line, and certain parts of Central Park, expressive matter vendors may set up display stands and the like for sales only in a limited number of designated spots, which are allocated on a rst-come, rstserved basis (the spot designations). Id. 1-05(b)(2)-(3). Additionally, the Revisions set forth general restrictions on the sale of expressive matter in non-designated areas of Central Park and all other City parks (the general expressive matter vending restrictions). Id. 1-05(b) (4)-(8). Before the Court is Defendants motion for summary judgment, made pursuant to Federal Rule of Civil Procedure 56.1 For the reasons that follow, Defendants motion is granted in its entirety.

1. Defendants also include Mayor Michael Bloomberg and Parks Commissioner Adrian Benepe, in their individual and of cial capacities, and the City of New York. Although the law is clear that the Department of Parks and Recreation is not a proper defendant, since a City agency is not a suable entity, see N.Y. City Charter ch. 17, 396; Bissinger v. City of N.Y., 06 CIV. 2325 (WHP), 2007 U.S. Dist. LEXIS 70155, 2007 WL 2826756, at *5 (S.D.N.Y. Sept. 24, 2007), neither party has contested the issue, and the Court does not address it here.

12a Appendix B I. BACKGROUND2 The New York City Department of Parks and Recreation (the Parks Department) is charged with the management and care of all parks in the City, and is directed to maintain the beauty and utility of those parks. See New York City Charter (Charter) 533(a)(1); (Decl. of Jack T. Linn, dated Sept. 7, 2011, Doc. No. 40 (Linn Decl.), 3). To fulll this mandate, the Parks Department is authorized to promulgate rules and regulations for the use, management, and protection of public parks. Charter 533(a)(9). These rules and regulations are set forth in 56 R.C.N.Y. 1-01, et seq. (See Linn Decl. 3.) Under the Parks Departments Rules, vending constitutes selling, offering for sale, hiring, leasing, letting, or providing or offering to provide services or items in exchange for a donation. 56 R.C.N.Y. 1-05(b) (1). It is generally unlawful to vend on property under the Parks Departments jurisdiction, including the sidewalks that adjoin parkland, without a permit from
2. The facts are taken from the parties briefs led in connection with this motion (Def. Br., Pl. Br., and Def. Reply Br.), the parties Local Civil Rule 56.1 Statements (Def. 56.1 and Pl. Reply 56.1), the parties supplemental brie ng (Pl. Supp. Br. and Def. Supp. Br.), the parties post-brie ng submissions to the Court (Def. Ltr. and Pl. Ltr.), the declarations submitted in connection with the instant motions, and the exhibits attached thereto. The facts are undisputed unless otherwise noted. Where one partys 56.1 Statement is cited, the other party does not dispute the fact asserted, has offered no admissible evidence to refute that fact, or merely objects to inferences drawn from that fact.

13a Appendix B the Parks Department. Id.; Charter 533(a)(5). However, vendors of expressive matter dened as materials or objects with expressive content, such as newspapers, books or writings, or visual art such as paintings, prints, photography, or sculpture are not required to obtain permits to sell their wares on Parks Department property. 56 R.C.N.Y. 1-02; 1-05(b)(2). Likewise, no license is required to vend expressive matter on City streets and sidewalks that are not under the Parks Departments jurisdiction. See N.Y.C. Admin. Code (Admin. Code) 20-473; Bery v. City of New York, 97 F.3d 689 (2d Cir. 1996). However, expressive matter vendors on the Citys streets and sidewalks must nonetheless comply with the General Vendor Laws relating to, inter alia, the size and placement of their vending tables as set forth in the Citys Administrative Code. Admin. Code 20-465(a)-(f), (k)-(q), 20-473. These restrictions do not address the parks speci cally, and the Parks Department does not have authority to enforce them. (Linn Decl. 6-7.) A. Prior Attempts to Regulate Expressive Matter Vendors3 Though expressive matter vendors are exempt from the permit and license requirements applicable to vendors
3. The Court set forth an overview of the Citys previous attempts to regulate expressive matter vendors and the resulting litigation in more detail in its Memorandum and Order, dated July 16, 2010. See Lederman v. N.Y.C. Dept of Parks & Recreation, Nos. 10 Civ. 4800 (RJS), 10 Civ. 5185 (RJS), 2010 U.S. Dist. LEXIS 71425, 2010 WL 2813789, at *1-3 (S.D.N.Y. July 16, 2010) (Lederman III ). The Court presumes the parties familiarity with that Memorandum and Order.

14a Appendix B of other goods, the City has several times attempted to promulgate rules to regulate expressive matter vendors in certain respects. As a result of those efforts, the City and various expressive matter vendors have waged an ongoing battle with regard to the Citys regulation of where and how those vendors may sell their wares. For example, in 1996, in Bery v. City of New York, the Second Circuit addressed a licensing scheme that required all vendors other than book sellers to obtain a general vendor license before selling their wares in any public space. 97 F.3d 689, 692 (2d Cir. 1996). As part of the regulatory scheme, only 853 general vendor licenses were issued, and licenses became available only to new applicants when current license holders failed to renew. Id. As a result, at the time of the Bery decision, the waiting list to acquire a license had grown to between 500 and 5,000, and no new licenses had been issued in the previous fteen years. Id. at 693, 697 n.7. The Second Circuit concluded that expressive matter vendors were entitled to full First Amendment protection and, on these facts, that the Citys licensing scheme operated as a de facto bar preventing visual artists from exhibiting and selling their art in public areas in New York. Id. at 696-97. Consequently, the Second Circuit concluded that the regulations were too sweeping to pass constitutional muster. Id. at 697. Taking to heart the Bery courts suggestion that there exist less intrusive means to accomplish the Citys objectives, such as a rotating rst-come, rst-served lottery system for assigning a limited number of licenses,

15a Appendix B id. at 698 n.8 (citation omitted), the City amended its regulatory scheme in 1998 to provide for seventy-ve site-specic permits for art vendors in Manhattan parks, see Lederman v. Giuliani, No. 98 Civ. 2024 (LMM), 1998 U.S. Dist. LEXIS 5468, 1998 WL 186753, at *1 (S.D.N.Y. Apr. 17, 1998) (Lederman I ). As part of that scheme, each permit gave its holder a legal right to sell his work in a speci c area for one month at a cost of twenty-ve dollars. Id. In the event that more than seventy- ve people appl[ied] for the seventy- ve sites available in Manhattan, or if there [were] more applications than spaces available for any particular location, the Parks Department would hold a random-draw lottery for each month. 1998 U.S. Dist. LEXIS 5468, [WL] at *2. After declining to obtain permits, and consequently being ticketed, the plaintiffs in Lederman I brought suit and attempted to preliminarily enjoin further enforcement of the regulations on the grounds that the regulations violated the First and Fourteenth Amendments. See 1998 U.S. Dist. LEXIS 5468, [WL] at *3-4. The Honorable Lawrence M. McKenna, District Judge, denied the motions for a preliminary injunction, holding that the regulations were content-neutral time, place, and manner restrictions. 1998 U.S. Dist. LEXIS 5468, [WL] at *3, *6. Speci cally, Judge McKenna concluded that, first, [t]he City undoubtedly has a significant interest in preserving and promoting the scenic beauty of its parks, providing suf cient areas for recreational uses, and preventing congestion in park areas and on perimeter sidewalks. 1998 U.S. Dist. LEXIS 5468, [WL] at *3. Additionally, he found that the regulations [were]

16a Appendix B narrowly tailored to serve the governments interest. Id. Finally, Judge McKenna held that the regulations left open alternative avenues for communication, because [a]n unlimited number of permits are available for Prospect Park in Brooklyn and [a]ny artist vendor who is foreclosed from obtaining a permit or chooses not to obtain one may, under Bery, sell his artwork on any other public sidewalk throughout the City not within the jurisdiction of the Parks Department, subject only to narrow restrictions. 1998 U.S. Dist. LEXIS 5468, [WL] at *3-4. After discovery, the parties led motions for summary judgment. At that point, Judge McKenna concluded without disturbing his preliminary analysis of the regulations constitutionality that, as a matter of state administrative law, the regulations should be interpreted not to apply to expressive matter vendors. See Lederman v. Giuliani, No. 98 Civ. 2024 (LMM), 2001 U.S. Dist. LEXIS 11567, 2001 U.S. Dist. LEXIS 11567, 2001 WL 902591, at *6 (S.D.N.Y. Aug. 7, 2001) (Lederman II ), affd 70 F. Appx 39, 40 (2d Cir. 2003). B. The Revisions After Judge McKennas decision, the City saw an increase in vendors in certain parks between 2001 and 2010. (See Linn Decl. 9-10; id. Ex. B; Decl. of Sheryl R. Neufeld, dated Sept. 7, 2011, Doc. No. 38 (Neufeld Decl.), Ex. L at 11:15-20, 16:20-17:3; id. Ex. N at 31:18-21.) To address concerns about the proliferation of vendors in those parks, the Parks Department began to contemplate ways to regulate expressive matter vendors on its property. (Linn Decl. 6, n.3.) The Parks Department

17a Appendix B speci cally targeted expressive matter vendors because vendors of non-expressive matter were already subject to numerous requirements set forth in the individual permits issued to them by the Parks Department. (Linn Decl. 12; Decl. of Julie Milner, dated Oct. 10, 2011, Doc. No. 61 (Milner Decl.), Ex. F4); see also 56 R.C.N.Y. 1-05(b)(1) (No person in or on any property under the jurisdiction of the Department shall [vend] except under and within the terms of a permit, or except as otherwise provided by law.). On March 24, 2010, the Parks Department published the proposed Revisions, and on April 23, 2010, held a public hearing at which over 100 members of the public expressed their opinion of the proposed rules. (Linn Decl. 11, 13, 22, Ex. A.) Based on the comments at the hearing, and over 200 written comments, the proposed rules were revised, and the revised rules were published in the City Record on June 18, 2010. (Id. 11, 13, Ex. A.) The revised rules became effective on July 19, 2010. (Id. 13.) Under the nal version of the Revisions, [p]ersons may vend expressive matter . . . on property under jurisdiction of the [Parks] Department without a permit, but must comply with all applicable provisions of these rules. However, in the speci c locations enumerated in paragraph (3)[,] expressive matter vendors may only vend expressive matter at the
4. The Court notes that the Canned Art presentation, attached to the Declaration of Julie Milner as part of Exhibit F, appears to be incomplete.

18a Appendix B speci cally designated spots identied by the Commissioner in the accompanying maps and as marked by a [Parks] Department decal, medallion, or other form of marking, on the specific location of the approved vending spot, unless they are only vending expressive matter without using a card, display stand or other device and without occupying a speci c location for longer than necessary to conduct a transaction and are otherwise in compliance with [Parks] Department rules. T hese spot s sha l l be a l loc at ed upon a first[-]come, first[-]serve[d] basis except as otherwise provided by law and any expressive matter vendor may only vend expressive matter centered directly behind the [Parks] Department decal, medallion, or other form of marking . . . . Expressive matter vendors can only occupy the designated spots for the purpose of vending expressive matter and only during posted times, which will be consistent with the hours of operation for the park where such designated spots are located in or adjacent to. 56 R.C.N.Y. 1-05(b)(2) (paragraph breaks added). Section 1-05(b)(3) of the Revisions speci es the spot designations as follows:

19a Appendix B [e]xpressive matter vendors may not vend in the following general areas unless they vend at the speci cally designated spots for such vending on the accompanying maps and in compliance with all other applicable Department rules: (i) Central Park at the following locations: (A) the perimeter of the park between East 85th Street and East 60th Street, including all sidewalks and plazas[,] (B) the perimeter of the park between West 86th Street and West 60th Street, including all sidewalks and plazas[,] (C) all of Central Park South, including all sidewalks and plazas[,] (D) Wien Walk and Wallach Walk, (E) pedestrian pathways parallel to East Drive between Grand Army Plaza and the Center Drive, (F) Grand Army Plaza, (G) Pulitzer Plaza, and (H) Columbus Circle. (ii) Battery Park, including all perimeter sidewalks. (iii) Union Square Park, including all perimeter sidewalks. (iv) Elevated portions of High Line Park. Id. 1-05(b)(3) (paragraph breaks added). The accompanying maps referenced in section 1-05(b)(3) set forth sixty-eight spots for expressive matter vendors in the designated portions of Central

20a Appendix B Park (including twenty-eight outside of the Metropolitan Museum of Art); nine spots for expressive matter vendors in Battery Park; eighteen spots for expressive matter vendors in Union Square Park plus forty more on Tuesdays, Thursdays, and Sundays when the Greenmarket farmers market is closed; and ve spots along the High Line. (Linn Decl. 30, 36, 43, 46-49, Ex. H.) In selecting the spot designations, the Parks Department considered the number of visitors those parks received; monuments and art installations in those parks; the need to maintain access to park benches, gardens, and esplanades, as well as bus, subway, and ferry stops; the historical uses of the parks; the aesthetic integrity of those parks; and the unique features of those parks. (See id. 23-28; 30-43; 45; 47-49.) The Parks Department also considered where vendors have historically conducted business in making the spot designations, although Plaintiffs note that expressive matter vendors were not given an opportunity to choose the spot designations themselves. (See id. 21; Pl. Reply 56.1 22.) Outside these specific spot designations, the Revisions allow expressive matter vendors to sell their wares anywhere in property under the Parks Departments jurisdiction, provided that they comply with the general expressive matter vending restrictions, which prohibit all vendors from, inter alia, blocking any person from using any street or park furniture, vending in a way that would damage or otherwise injure Department property, and vending anything over any ventilation grill, cellar door, manhole, transformer vault, or subway access grating. 56 R.C.N.Y. 1-05(b)(4). The general expressive

21a Appendix B matter vending restrictions also prohibit vendors from, inter alia, using a display stand that: provides less than a twelve-foot wide clear pedestrian path; is within ve feet from any street or park furniture, disabled access ramp, or trees; is within ten feet from any crosswalk; or is placed within fty feet from any monument or other public art installation. Id. 1-05(b)(5)-(7). Finally, the Revisions require that, [w]here exigent circumstances exist and a [Parks] Department employee or police ofcer gives notice to a vendor to move temporarily from any location[,] such vendor shall not vend from such location. Id. 1-05(b)(8). C. The Skyline Decision Despite seemingly contrary language in the Revisions, Defendants initially interpreted expressive matter broadly to include performances for donations by buskers and street artists. 5 (Linn Decl. 4, n.2.) Pursuant to that interpretation, Defendants stated, inter alia, that the impact of [performance] artists on parkland is no different from the impact of artists who sell tangible items of art. (Decl. of Michael Dockett, dated Oct. 20, 2011, Doc. No. 36 (Docket Decl.), at 12.) Further, Defendants asserted that the fact that both types of artists are subject to the designated spot requirement is evidence of the Parks Departments effort and intent to treat all expressive matter vendors equally. (Def. Reply Br. at 12.) Plaintiffs protested this interpretation, arguing that applying
5. As earlier noted, the Revisions de ne expressive matter as including materials or objects with expressive content, such as newspapers, books or writings, or visual art such as paintings, prints, photography, or sculpture. 56 R.C.N.Y. 1-02.

22a Appendix B the Revisions to performers would deprive tangible art vendors of their already limited access to the designated spots. (Pl. Br. at 14-15.) Plaintiffs asserted that, because performance artists who expect to draw a crowd of twenty or more are already subject to permitting requirements, further requiring that performers use the medallions was an attempt by Defendants to drive visual artists out of City parks. (Id.) However, on February 23, 2012 after brieng in this matter had concluded a New York State appellate court issued a decision calling Defendants interpretation into question. See In re New York Skyline, Inc. v. City of New York, 94 A.D.3d 23, 939 N.Y.S.2d 42 (N.Y. App. Div. 2012). In Skyline, the New York State Supreme Court, Appellate Division, First Department read the denition of vendor in the Citys Administrative Code which resembles the denition of vendor in the Revisions to exclude entertainers. Id. at 27. The First Department reasoned that, because the Code required vendors of goods and services to obtain permits, and because [a]s a matter of common parlance, one would not say that [entertainment] is a service, entertainers need not obtain permits to sell their wares. Id.; see also Admin. Code 20-452(b), 20-453 (de ning a vendor as a person who . . . sells . . . goods or services and requiring a vendor to be licensed). Following the decision, in March 2012, the Parks Department announced that the Revisions would no longer be enforced against performers. (Def. Supp. Br. at 3; Def. Ltr., dated Sept. 24, 2012, Doc. No. 79 (Def. Ltr.), at 2.)

23a Appendix B D. Procedural History Plaintiffs led the present action on June 18, 2010 the same day that the Revisions were published. On June 24, 2010, the Court issued an Order denying Plaintiffs application for an ex parte temporary restraining order. By Order dated July 16, 2010, the Court denied Plaintiffs motion for a preliminary injunction.6 After the parties engaged in extensive discovery, including depositions of multiple high-ranking Parks Department ofcials, interrogatories, and the production of numerous documents, Defendants led the instant motion on September 9, 2011. (Doc. No. 34.) The motion was fully submitted as of October 20, 2011. However, on May 14, 2012, Plaintiffs requested permission to supplement the record with evidence of Defendants changed enforcement policy as to performers following the Skyline decision (Doc. No. 71); that same day, the Court granted Plaintiffs request and permitted Defendants to le a response (id.). In their response, Defendants asserted that the changed enforcement policy was temporary pending the Citys appeal of the Skyline decision. The Court heard oral argument on the motion on July 20, 2012.

6. On July 7, 2010, Dua v. New York City Department of Parks and Recreation, 10 Civ. 5185, was referred to this Court as related to the present matter. Plaintiffs in that case voluntarily dismissed the suit on July 12, 2011. See Dua v. N.Y.C. Dept of Parks & Recreation, 10 Civ. 5185 (RJS), Doc. No. 37. The case was closed on July 12, 2011.

24a Appendix B On August 30, 2012, the New York State Court of Appeals denied the Citys motion for leave to appeal the Skyline decision, In re New York Skyline, Inc. v. City of New York, No. 2012-642, 19 N.Y.3d 809, 975 N.E.2d 913, 2012 N.Y. LEXIS 2019, 951 N.Y.S.2d 467, 2012 WL 3743746, at *1 (N.Y. Aug. 30, 2012), and on September 20, 2012, the Court directed the parties to make submissions concerning the impact, if any, of that ruling on the instant motion (Doc. No. 78). Complying with that order, Defendants responded that the current Revisions would not be enforced against performers but declared their intent to amend the Revisions so that they would again apply to and be equally enforced against performers and vendors of tangible art. (Def. Ltr., dated Sept. 24, 2012, Doc. No. 79 (Def. Ltr.), at 2.) Abandoning their earlier position, Plaintiffs replied that the Skyline decision is a mere post-hoc justication for Defendants long-standing practice of targeting visual artists for enforcement, and that the Revisions should be ruled unenforceable in their present state, regardless of Defendants intent to revise them, because of their unequal impact on similarly situated artists. (Pl. Ltr., dated Sept. 26, 2012, Doc. No. 81 (Pl. Ltr.), at 2-3.) II. LEGAL STANDARD Pursuant to Federal Rule of Civil Procedure 56(a), a court may not grant a motion for summary judgment unless the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The moving party bears the burden of showing that it is

25a Appendix B entitled to summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). The court is not to weigh evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments. Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 122 (2d Cir. 2004) (internal quotation marks omitted); accord Anderson, 477 U.S. at 248. As such, if there is any evidence in the record from any source from which a reasonable inference in the [nonmoving partys] favor may be drawn, the moving party simply cannot obtain a summary judgment. Binder & Binder PC v. Barnhart, 481 F.3d 141, 148 (2d Cir. 2007) (internal quotation marks omitted). III. DISCUSSION Plaintiffs challenge the Revisions, which regulate the time, place, and manner of the sale of expressive matter, under the First Amendment. (See Pl. Br. at 2-23.) Plaintiffs also challenge the Revisions under the Fourteenth Amendment, asserting that they impinge on their fundamental First Amendment rights and are enforced selectively against art vendors, as opposed to corporate vendors or performers. (See Pl. Br. at 23-29.) Finally, Plaintiffs allege several violations of their civil rights, under 42 U.S.C. 1985 and 1986, as well as retaliation for exercising their free speech rights. For the reasons set forth below, the Court nds that Defendants are entitled to summary judgment on each of Plaintiffs claims.

26a Appendix B A. First Amendment Claims Though the expressive matter sold by Plaintiffs is afforded full First Amendment protection, see Bery, 97 F.3d at 695-96, the City may, within constitutional limits, regulate the time, place, and manner of activities in public parks, see Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S. Ct. 2746, 105 L. Ed. 2d 661 (1989); Housing Works, Inc. v. Kerik, 283 F.3d 471, 478 (2d Cir. 2002). To determine if a time, place, and manner regulation passes constitutional muster, it is rst necessary to decide if the regulation is content neutral. Courts apply intermediate scrutiny to content-neutral time, place, and manner regulations, upholding reasonable restrictions that are narrowly tailored to meet a signicant government interest and leave open ample alternative means of communication. Mastrovincenzo v. City of New York, 435 F.3d 78, 98 (2d Cir. 2006). Conversely, content-based regulations are subject to strict scrutiny and are presumptively invalid. See, e.g., R.A.V. v. City of St. Paul, 505 U.S. 377, 382, 112 S. Ct. 2538, 120 L. Ed. 2d 305 (1992). 1. Content Neutrality

As the Court held in its Memorandum and Order denying Plaintiffs motion for a preliminary injunction, the Revisions, as drafted, are unquestionably content-neutral. See Lederman v. N.Y.C. Dept of Parks & Recreation, No. 10 Civ. 4800 (RJS), 2010 U.S. Dist. LEXIS 71425, 2010 WL 2813789, at *8 (S.D.N.Y. July 16, 2010) (Lederman III ). Nevertheless, Plaintiffs continue to press the argument, rst advanced in their motion for a preliminary injunction,

27a Appendix B that the Revisions are content-based because they treat expressive matter vendors differently from other vendors, such as commercial and corporate ones. (Pl. Br. at 10-15.) The fact that the Revisions target expressive matter vendors is undisputed. However, Plaintiffs are simply mistaken in their assertion that all regulations distinguishing between speakers warrant strict scrutiny. Turner Broad. Sys., Inc. v. Fed. Commcns Commn, 512 U.S. 622, 657, 114 S. Ct. 2445, 129 L. Ed. 2d 497 (1994). In fact, heightened scrutiny is unwarranted when the differential treatment [between speakers] is justi ed by some special characteristic of the particular [speaker] being regulated. Id. at 660-61. Expressive matter vendors clearly have such a special characteristic specically, the fact that they are not covered by the regulations that govern other vendors. Thus, strict scrutiny is not warranted merely because the Revisions target [expressive matter vendors] and no other type of vendor or parkgoer. (Pl. Br. at 8.) As the Supreme Court has explained: [t]he principal inquiry in determining content neutrality, in speech cases generally and in time, place, or manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys. The governments purpose is the controlling consideration. A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others.

28a Appendix B Ward, 491 U.S. at 791, accord Hous. Works, Inc. v. Kerik, 283 F.3d 471, 480 (2d Cir. 2002). In this case, the Revisions are completely unrelated to the content of the expressive matter being sold. Plaintiffs have put forth no evidence to indicate that the Revisions as drafted treat types of expressive matter differently based on the ideas or messages that they convey. Further, Plaintiffs have not demonstrated that the spot designations are distributed according to the content of the expressive matter sold. Put simply, the Revisions apply to all expressive matter, regardless of the content of the item sold. Further, the Revisions as enforced are contentneutral. In their supplemental brieng, Plaintiffs assert that Defendants decision to exempt performers from the Revisions is an impermissible restriction based on content. (Pl. Supp. Br. at 5.) Putting aside Plaintiffs earlier position that including performers under the Revisions was evidence of content-based animus, Plaintiffs again offers a mistaken view of content neutrality. First, there are any number of special characteristic[s] distinguishing vendors of tangible art and performing artists that support the present policy, not least among them that, as Plaintiffs acknowledge, performers are already subject to permitting requirements when they expect to draw large crowds. Second, Defendants purpose in adopting the new policy was to comply with an unanticipated (and arguably ill-reasoned7 ) court
7. Indeed, Judge Buchwald reached the contrary conclusion in her analysis of the Revisions de nition of vendor. Speci cally, Judge Buchwald held that vending encompasses face painting and the making of balloon animals when done for donations. See

29a Appendix B ruling a matter plainly divorced from the content of tangible art vendors speech. Finally, the Citys present enforcement policy is a sharp departure from the licensing regime struck down in Bery, where visual art vendors were effectively banned while book vendors operated largely unfettered. See Bery, 97 F.3d at 696. There, the court suggested that the regulation might be contentbased due to the risk that the effective bar on the sale of [visual] artwork in public places raises concerns that an entire medium of expression is being lost. Id. The same simply cannot be said of the Revisions, given their relatively limited impact on tangible art vendors in only four City parks. Because the Revisions do not thus raise[] suspicions that [Defendants] objective was, in fact, the suppression of certain ideas, Turner, 512 U.S. at 660, the Revisions are content neutral as enforced. Nor do the Revisions reect government disapproval of the protected activity of selling expressive matter. See Lederman III, 2010 U.S. Dist. LEXIS 71425, 2010 WL 2813789, at *6-7. As an initial matter, the Revisions are part of a larger regulatory scheme that governs the time, place, and manner of all vendors sales. See 56 R.C.N.Y. 1-05(b)(3); (Linn Decl. Ex. F). Although the Revisions apply only to expressive matter vendors, once again, this is simply because courts have struck down previous attempts to treat expressive matter vendors like all other vendors. See Bery, 97 F.3d at 698-99. Indeed, expressive matter vendors are treated more favorably than other vendors
Alhovsky v. N.Y.C. Dept of Parks & Recreation, No. 11 Civ. 3669 (NRB), 2012 U.S. Dist. LEXIS 116602, 2012 WL 3552916 (S.D.N.Y. Aug. 16, 2012), at *3-4.

30a Appendix B they can sell their wares without a general vendor license, they can sell in any public space in the City subject only to the General Vendor Laws, and they can sell in any space under the Parks Department jurisdiction subject only to the limited general expressive matter vending restrictions set forth in section 1-05(b)(3). 8 Plaintiffs argument that the Revisions specically, the spot designations were designed to be a clandestine licensing scheme a[nd] an end run around this Courts jurisprudence (Pl. Br. at 8) is not only unsupported by the record but also fails as a matter of law. In support of this apparent argument that the Revisions delegate too broad discretion to authorities, Plaintiffs offer nothing more than the evidence that Parks of cials are charged with overseeing the distribution of the spot designations each morning, and that Parks ofcials are vested with the authority to enforce the Revisions and issue summonses for those vendors who are not in compliance. (Id. at 10.) Even if these facts were not obviously insuf cient as a matter of law, they have nothing to do with the content
8. The Court notes that, at oral argument, Plaintiffs seemed to suggest that vendors who are subject to the permit scheme in the General Vendor Laws are somehow better off than Plaintiffs. (See Tr. 21:5-22:17.) However, there is nothing in the record to suggest that the General Vendor Laws, applicable to commercial vendors, are less restrictive than the Revisions. Further, nothing in the record indicates that Plaintiffs are prohibited from seeking a general vendor permit. Finally, it must be reiterated that the Revisions are, in large part, a response to Plaintiff Robert Ledermans prior course of litigation that endeavored to exempt visual art vendors from the General Vendor Laws.

31a Appendix B of the expressive matter being sold as opposed to the category of vendor selling them. See Mastrovincenzo, 435 F.3d at 99 (Unlike a licensing scheme in which there are no limiting criteria or standards for when a license will be required, New York Citys licensing requirement applies across the board to all non-exempt vendors. (citation omitted)). Accordingly, as content-neutral regulations, the Revisions will pass constitutional muster if they are narrowly tailored to serve a signi cant governmental interest and leave open ample alternative channels for communication. See Ward, 491 U.S. at 791 (quoting Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293, 104 S. Ct. 3065, 82 L. Ed. 2d 221 (1984)) (internal quotation marks omitted). 2. Signicant Government Interests

Defendants assert that the Revisions were promulgated in order to promote the Citys interests in alleviating congestion and improving circulation, promoting aesthetics by preserving the integrity of the overall design of the parks, including the need to preserve landscapes and scenic views, and ensuring that the parks are available to the public for a wide range of activities, including active and passive recreation, performances, demonstrations and the viewing of historical monuments and public art exhibits.

32a Appendix B (Def. Br. at 8-9; see also Linn Decl. Ex. A at 4 (the Revisions address concerns . . . related to the proliferation, in certain parks, of expressive matter vendors and the impact they can have on parkland and other park visitors. . . . [T]o accommodate the interest of a broad range of park visitors, including the interests of expressive matter vendors who wish to operate on parkland, the rules establish general park locations where vendors may operate and minimum requirements regarding vending activity.).) Without question, these interests are signi cant. See Ward, 491 U.S. at 797 (The city enjoys a substantial interest in ensuring the ability of its citizens to enjoy whatever benets the city parks have to offer . . . .); Clark, 468 U.S. at 296 ([The g]overnment[ has a] substantial interest in maintaining the parks . . . in an attractive and intact condition, readily available to the millions of people who wish to see and enjoy them by their presence.); Bery, 97 F.3d at 697 (The City certainly has a signi cant interest in keeping its public spaces safe and free of congestion.); Lederman I, 1998 U.S. Dist. LEXIS 5468, 1998 WL 186753, at *3 (The City undoubtedly has a signi cant interest in preserving and promoting the scenic beauty of its parks, providing suf cient areas for recreational uses, and preventing congestion in park areas and on perimeter sidewalks.). Indeed, Plaintiffs do not dispute that these stated purposes implicate government interests. Rather, Plaintiffs argue that Defendants stated interests are pretextual, and that Defendants actually promulgated the Revisions to drive visual artists out of the parks or to retaliate against Plaintiffs personally. (Pl. Br. at 10-20,

33a Appendix B 32-34.) Once again, however, Plaintiffs arguments that the Revisions were promulgated because of an animus against artists nds no support in the record. Plaintiffs argue that vendors of all sorts increased in the Citys parks between 2001 and 2010, and the Revisions therefore betray the Citys animus against artists because the Revisions target expressive matter vendors. (Pl. Reply 56.1 14, 16.) As discussed above, however, the Revisions target expressive matter vendors speci cally because those vendors were not subject to the regulatory schemes that govern other vendors. Plaintiffs also note that, leading up to the promulgation of the Revisions, the Parks Department discussed only art and artists in relation to dening expressive matter vendors. (Pl. Br. at 12.) However, the record indicates that the Parks Department tracked primarily artists as a means of gauging the increase in expressive matter vending and that the Revisions were spurred, in part, by the dramatic increase in art vendors. (Linn Decl. 9, 10; id. at Ex. B; see Pl. Reply 56.1 14; Milner Decl. at Ex. F.) That the Parks Department used artists as shorthand for expressive matter vendors does not betray animus against artists. Nor is there any indication that the Parks Departments proffered reasons for promulgating the Revisions were a pretext for driving artists out of the parks. Plaintiffs advance several other theories to support their argument that the Parks Departments reasons for promulgating the Revisions were pretextual. (Pl. Br. at 1520.) These theories also fail. For example, Plaintiffs insist

34a Appendix B that Defendants proffered reasons must be pretextual because the City has an interest in reducing pedestrian congestion only when there is a nexus between a threat to public safety and the congestion the municipality seeks to limit. (Pl. Br. at 16.) However, the law in the Second Circuit denes the Citys interest in alleviating congestion much more broadly. See Mastrovincenzo, 435 F.3d at 100 (There can be no doubt that New York Citys avowed objectives in enforcing its licensing requirement, such as reducing sidewalk and street congestion in a city with eight million inhabitants, constitute signi cant government interests.); Bery, 97 F.3d at 697. Additionally, Plaintiffs argue that Defendants have not offered any evidence to show that the expressive matter vendors caused any dangerous congestion or that they were the sole cause of congestion. (Pl. Reply 56.1 15.) In this vein, Plaintiffs insist that other activities such as the Union Square Greenmarket and the Holiday Markets at Columbus Circle and Union Square contribute more signi cantly to congestion and pose greater threats to public safety than expressive matter vendors. (Pl. Br. at 16-17.) However, as the Court noted in its July 16, 2010 Memorandum and Order, [t]hat the City tolerates heightened congestion in some circumstances neither requires it to tolerate such congestion at all times nor suggests that its other congestion-reducing measures are pretextual. Lederman III, 2010 U.S. Dist. LEXIS 71425, 2010 WL 2813789, at *9. Furthermore, the Revisions were promulgated not only to reduce congestion, but also to address aesthetic concerns, to prevent interference with other users enjoyment of the parks, and to allow for an

35a Appendix B array of activities to take place in the parks. (See Def. 56.1 19; Linn Decl. 7; Ex. A at 4.) Finally, as discussed, while Plaintiffs initially argued that the inclusion of performance artists under the Revisions was an attempt to drive visual artists out of parks (Pl. Br. at 14-15), they now contend that Defendants effort to comply with the Skyline decision is a mere ruse to conceal the Citys intent to discriminate against visual artists (Pl. Ltr. at 2) not to serve the aforementioned government interests. However, there is simply no evidence in the record to support this contention. Because Defendants have shown that the Revisions serve several significant government interests, and because Plaintiffs have done nothing more than allege pretext (without factual basis), the Court last looks to whether the Revisions are narrowly tailored and allow for ample other means of communication. 3. Narrowly Tailored

To be narrowly tailored, a regulation need not be the least restrictive or least intrusive means of achieving the Citys interest in preserving its parkland and regulating its use. See Ward, 491 U.S. at 798. Rather, the narrow tailoring requirement is satised so long as the . . . regulation promotes a substantial government interest that would be achieved less effectively absent the regulation. Id . at 799 (quoting United States v. Albertini, 472 U.S. 675, 689, 105 S. Ct. 2897, 86 L. Ed. 2d 536 (1985)) (internal quotation marks omitted). As long as

36a Appendix B the regulations as a whole are not substantially broader than necessary to achieve the governments interest[,] . . . the regulation[s] will not be invalid simply because a court concludes that the governments interest could be adequately served by some less-speech-restrictive alternative. Id. at 800. The record reects that Defendants attempted only to impose spot designations on the most heavily used areas. For instance, the Linn Declaration sets forth the speci c considerations made in choosing the designated vending spots, including the volume of park visitors, the speci c aesthetic needs of the parks, transportation within the parks and access to the parks, the historic uses of the parks, and the con guration and layouts of the parks. (See Linn Decl. 7, 16-17, 20-21.) Additionally, in deciding where to place the spot designations, the Parks Department considered where expressive matter vendors traditionally vended and attempted to accommodate them even where the general expressive matter vending restrictions would otherwise preclude vendors from setting up. (Id. at 21.) The record likewise reects that the Parks Department considered comments received during the public review process, and moved and added spots in response to those comments. See Lederman III, 2010 U.S. Dist. LEXIS 71425, 2010 WL 2813789, at *10 (noting that the Revisions bear the hallmarks of a carefully considered attempt to advance a signi cant government interest without placing undue burdens on expressive-matter vendors).

37a Appendix B Moreover, the Revisions essentially track suggestions set forth in previous cases. For instance, the Bery Court suggested a less intrusive means for accomplishing the goals of the regulations it struck down, including a rst-come, rst-served lottery system for assigning a limited number of licenses. 97 F.3d at 698 n.8. That recommendation echoed the admonition of numerous other courts to limit licensing discretion in government of cials. See, e.g., Ward, 491 U.S. at 791; Hous. Works, Inc., 283 F.3d at 478. Consequently, the Revisions require that medallions be allocated on a rst-come, rst-served basis, and articulate rules and standards that speci cally withhold discretion from government of cials. See 56 R.C.N.Y. 1-05(b)(2)-(3). That there may be a different or better way to regulate expressive matter vendors is not dispositive as long as the regulations as a whole are not substantially broader than necessary to achieve the governments interest[.] Ward, 491 U.S. at 798. Finally, while Defendants decision to exclude per for mers from enforcement may diminish the effectiveness of the Revisions, there is no evidence in the record to suggest that such an outcome is inevitable, nor is it the Courts place to dictate the minute details of City policy. As the Supreme Court instructed in Ward, the validity of [time, place, and manner] regulations does not turn on a judges agreement with the responsible decision maker concerning the most appropriate method for promoting signi cant government interests or the degree to which those interests should be promoted. 491 U.S. at 800 (quoting Albertini, 472 U.S. at 689) (internal quotation marks omitted). Though the Bery court did fault the prior licensing regime on such underinclusiveness

38a Appendix B grounds, that nding is inapposite here: the book vendors in Bery were virtually unregulated and the art vendors virtually banned; the performers here remain subject to all Parks Department regulations outside the Revisions and tangible art vendors enjoy equal freedom outside the four parks with the spot designations. See Bery, 97 F.3d at 698. Thus, the Court nds that the Revisions are narrowly tailored to serve the cited government interests. d. Ample Alternative Channels

Neither the federal nor state constitution guarantees a person the right to communicate ones views at all times and places and in any manner that may be desired. Heffron v. Intl Socy for Krishna Consciousness, Inc., 452 U.S. 640, 647, 101 S. Ct. 2559, 69 L. Ed. 2d 298 (1981). Although ample alternatives must be available, speakers are not guaranteed access to every or even the best channels or locations for their expression. Carew-Reid v. MTA, 903 F.2d 914, 919 (2d Cir. 1990) (citing City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 812, 104 S. Ct. 2118, 80 L. Ed. 2d 772 (1984)). Moreover, the requirement that ample alternative channels exist does not imply that alternative channels must be perfect substitutes for those channels denied to plaintiffs by the regulation at hand. Mastrovincenzo, 435 F.3d at 101. The Court nds that, under the Revisions as drafted and as enforced, expressive matter vendors have ample avenues to sell their wares. In Central Park alone, vendors may sell artwork in any part of the perimeter of Central

39a Appendix B Park north of 86th Street, and in any part of the interior of Central Park other than the pathways along the Central Drive and Wein and Wallach Walks. (Linn Decl. 29.) Expressive matter vendors may also sell their wares at any other park in the City, provided that they comply with the provisions of the general expressive matter vending restrictions. (Id. at 14.) Although vending is not permitted everywhere such as on grassy areas, in close proximity to park benches, or on pathways that provide less than a twelve-foot wide clear pedestrian path a signi cant amount of the Parks Departments 2,700 acres of parkland in Manhattan is available to expressive matter vendors. (Id. at 50-51; Dep. of Douglas Blonsky, dated June 22, 2011, Doc. No. 38 (Blonsky Dep. Tr.), at 22:3-24:4.) Plaintiffs rejoin that this account of available space is a linguistic trick by the Parks Department meant to obscure the fact that there is . . . little parkland left under the Revision[s] legally available for artists. (Pl. 56.1 Reply 42.) Plaintiffs claim that only a miniscule amount of pathways in Central Park have a fteen-foot or more clearance, and that when questioned, certain Defendants could not identify which sections of those pathways would be available to vendors.9 Plaintiffs argue
9. Plaintiffs assert that the Revisions extend the required clearance to fteen feet three more than under the general vending restrictions. (Pl. Reply 56.1 42.) However, as stated in the Revisions, expressive matter vendors may not erect a display table within less than a twelve[-](12)[-]foot[-]wide clear pedestrian path measured from the display on the sidewalk or park path to the opposite edge of the sidewalk or park path. 56 R.C.N.Y. 1-05(b)(5)(i). Thus, there is no support for Plaintiffs contention.

40a Appendix B that [a] reasonable jury could infer from these facts that [D]efendants have utterly failed to articulate a single, bona de legal spot in any of the four affected parks outside the medallions because Jack Linn and the other mysterious drafters cleverly and surreptitiously designed the new rules to foreclose vending entirely within the interior of these parks. (Pl. Br. at 22.) Plaintiffs base this argument on Commissioner Adrian Benepes alleged inability to identify legal vending spots under the general expressive matter vending restrictions in Central Park when Plaintiffs presented him with a tourist map at his deposition. (See Pl. Br. at 21-22; Tr. of Oral Argument, dated July 20, 2012 (Tr.), at 4:16-22.) However, this argument is a slender reed in light of the record as a whole. That Benepe did not identify areas permissible for expressive matter vendors under the general restrictions does not indicate that there is not a single, bona de legal spot in any of the four affected parks outside the medallions, as Plaintiff contends. (See Pl. Br. at 22.) Indeed, the map presented to Benepe solely concerned Central Park; there is no support for the contention that the Revisions unduly limit vending in any of the hundreds of other parks in the City. Nor do Plaintiffs contend that areas identied by Defendants as potentially appropriate for expressive matter vending such as the Central Park Mall and the path leading toward Wollman Rink fall afoul of the Revisions. (See Dep. of Jack Linn, dated June 23, 2011, Doc. No. 44, at 25:6-21; Blonsky Dep. Tr. at 24:2-4.) Furthermore, expressive matter vendors can vend on public sidewalks throughout the City, and the Revisions do not prohibit expressive matter vendors

41a Appendix B from giving their goods away or from vending while not stationary. (Linn Decl. 12.) Finally, Plaintiffs argue that the spots available to expressive matter vendors are not adequate because they are not suitable for vending activity or are poorly located. (Tr. at 26:25-27:5.) However, as noted above, the law does not require access to every or even the best channels or locations for their expression. Carew-Reid, 903 F.2d at 919. Moreover, if the spot designations are unsatisfactory, expressive matter vendors can choose to sell their wares elsewhere (subject to the general expressive matter vending restrictions), carry their wares instead of vending while stationary, or obtain a general vendor permit. While Plaintiffs may prefer to vend throughout the more lucrative park areas, the very qualities that make these locations attractive to Plaintiffs presumably, high foot traf c support the Citys efforts to regulate their use. Accordingly, because the Revisions are contentneutral, and narrowly tailored to serve a substantial government interest while permitting ample other avenues for communication, the Court finds that Defendants are entitled to summary judgment on Plaintiffs First Amendment claims. B. Equal Protection Claims Plaintiffs also challenge the Revisions under the Fourteenth Amendment, alleging that the regulations intrude on their fundamental First Amendment rights and discriminate against them as visual art vendors while

42a Appendix B sparing similarly situated vendors. (See Pl. Br. at 23-29.) However, for the reasons discussed above, both of these claims fail. The equal protection clauses of the federal and state constitutions guarantee[] every person the equal protection of the laws, which is essentially a direction that all persons similarly situated should be treated alike. Jankowski-Burczyk v. INS, 291 F.3d 172, 176 (2d Cir. 2002). Legislative acts [and regulatory schemes] that do not interfere with fundamental rights or single out suspect classi cations carry with them a strong presumption of constitutionality and must be upheld if rationally related to a legitimate state interest. Beatie v. City of New York, 123 F.3d 707, 711 (2d Cir. 1997) (quoting City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985)). Expressive matter vendors are not a suspect classification, and Plaintiffs do not suggest as much. Instead, Plaintiffs argument for strict scrutiny rests on the contention that the Revisions impinge on Plaintiffs fundamental, First Amendment rights. (Pl. Br. at 23-28.) However, as discussed above, the Court nds that the Revisions fall well within the parameters of the First Amendment. Accordingly, the Revisions are subject only to rational basis review for equal protection purposes. Under rational basis review, Plaintiffs Equal Protection claims must fail as a matter of law, because Defendants have met the low bar in establishing that the Revisions are rationally related to a legitimate government interest, namely, promoting the use and enjoyment of public parks.

43a Appendix B See Kraham v. Lippman, 478 F.3d 502, 506 (2d Cir. 2007); see also City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 55, 106 S. Ct. 925, 89 L. Ed. 2d 29 (1986) (nding that respondents fared no better under the Equal Protection Clause than under the First Amendment itself when a suf cient rationale existed for the ordinance under the First Amendment). Furthermore, Plaintiffs contention of discrimination is wholly unjustified. Prior to the Skyline decision, Plaintiffs sole support for this allegation were conclusory assertions that corporate vendors are exempt from the Revisions and that favored artists such as Sol Lewitt and Christo and Jean-Claude were permitted to install work in the parks while Plaintiffs are limited in their ability to do so. (Pl. Br. at 26-28.) However, as discussed earlier, there are plainly legitimate reasons for these distinctions, not least among them that the so-called favored artists were merely displaying their works as opposed to vending and that corporate vendors are subject to other, stricter regulations not imposed on expressive matter vendors. Plaintiffs claims of unequal treatment have somewhat more force in light of Defendants changed policy with respect to performers, but on close inspection, these claims too must fail. As an initial matter, it is wellestablished that courts are sharply limited in their ability to question governmental line-drawing under rational basis review. See, e.g., Williamson v. Lee Optical, Inc., 348 U.S. 483, 486, 75 S. Ct. 461, 99 L. Ed. 563 (1955). That there is no apparent invidious discrimination or animus alone warrants upholding the Revisions. However, the record itself provides significant support for the

44a Appendix B nding the Plaintiffs claims are unfounded. First, it is not at all apparent to the Court that tangible art vendors and performing artists are similarly situated indeed, Plaintiffs themselves argued for the exclusion of performers on these grounds prior to the Skyline decision. Moreover, there is signi cant evidence in the record that the in ux of tangible art vendors and tangible art vendors alone was the driving impetus for the Revisions in the rst place. (Linn Decl. 9, 10; id. at Ex. B; Neufeld Decl., Ex. L at 11:9-14, 16:8-17:17). Finally, Defendants have, at a minimum, articulated one very rational basis for any alleged disparate treatment namely, the desire to comply with a judicial ruling in Skyline. (See Tr. at 6:14-8:8.) Consequently, Defendants motion for summary judgment on Plaintiffs Fourteenth Amendment claim is granted. C. Plaintiffs Other Claims Plaintiffs also raise claims for conspiracy under 42 U.S.C. 1985 and 1986, and a claim for retaliation. Because Plaintiffs First and Fourteenth Amendment claims have failed, their conspiracy and retaliation claims must fail as well. Section 1985 allows an injured party to seek damages if two or more persons in any State conspire . . . for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws.

45a Appendix B 42 U.S.C. 1985. To state a conspiracy claim in violation of 1985, a plaintiff must allege (1) a conspiracy, (2) for the purpose of depriving any person or class of persons of the equal protection of laws, (3) an act in furtherance of the conspiracy, (4) whereby a person is deprived of any right or privilege of a citizen of the United States. Grif n v. Breckenridge, 403 U.S. 88, 102-03, 91 S. Ct. 1790, 29 L. Ed. 2d 338 (1971). As Plaintiffs cannot demonstrate that the Revisions impinge upon their First or Fourteenth Amendment rights, their conspiracy claim must also fail. Plaintiffs seek to hold Mayor Michael Bloomberg liable under 42 U.S.C. 1986,10 which states that any person who, having knowledge that any of the wrongs conspired to be done, and mentioned in 1985 of this title, are about to be committed, and having power to prevent or aid in preventing the commission of the same, neglects or refuses so to do is liable to the injured party for such a wrongful act if such wrongful act be committed. However, without a violation of 1985, there can be no violation of 1986. See 42 U.S.C. 1986; Jews Jor Jesus, Inc. v. Jewish Cmty. Relations Council of N.Y., Inc., 968 F.2d 286, 292 (2d Cir. 1992). Thus, Plaintiffs 1986 claim fails.

10. Plaintiffs identi ed this claim as arising under 42 U.S.C. 1985. (See Compl. 50-53.) However, because Plaintiffs allege that Mayor Bloomberg failed to prevent a 1985 violation, it is clearly a claim under 1986.

46a Appendix B Finally, to make out a First Amendment retaliation claim, a plaintiff must show (1) an interest protected by the First Amendment; (2) [that] defendants actions were motivated or substantially caused by his exercise of that right; and (3) [that] defendants actions effectively chilled the exercise of his First Amendment right. Curley v. Vill. of Suffern, 268 F.3d 65, 73 (2d Cir. 2001). Because the Revisions are valid time, place, and manner restrictions that leave Plaintiffs ample alternative channels for vending, Plaintiffs cannot ful ll the third element of the claim.11 Accordingly, Plaintiffs retaliation claim fails as well, and Defendants motion for summary judgment on these claims is granted. IV. CONCLUSION Plaintiffs have made a practice of contesting any attempt to limit their ability to display and sell their art whenever and however they please. However, the Constitution recognizes that the City must be permitted to balance Plaintiffs speech rights with other myriad demands on municipal resources. It is thus beyond debate that the City enjoys a substantial interest in ensuring the ability of its citizens to enjoy whatever benets the city parks have to offer. Ward, 491 U.S. at 797 (1989). Because the City has established that unbounded vending would squelch a range of those benets, and has responded with
11. Plaintiffs appear to bring a claim against the City, pursuant to Monell v. Dept of Soc. Servs. of City of N.Y., that mirrors their retaliation claim. See 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978); (Compl. 57-62). Naturally, this claim fails for the same reason that the individual retaliation claim fails.

47a Appendix B narrow, targeted regulations that leave Plaintiffs ample opportunity to exercise their rights, Defendants motion for summary judgment is granted. The Clerk of the Court is respectfully requested to terminate the motion located at Doc. No. 34 and to close this case. SO ORDERED. /s/ RICHARD J. SULLIVAN United States District Judge Dated: September 30, 2012 New York, New York

48a C THE UNITED APPENDIX C Appendix ORDER OF STATES DISTRICT COURT, SOUTHERN DISTRICT OF NEW YORK, FILED JUNE 1, 2011 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK No. 10 Civ. 4800 (RJS) ROBERT LEDERMAN and JACK NESBITT, Plaintiffs, -vNEW YORK CITY DEPARTMENT OF PARKS AND RECREATION, ADRIAN BENEPE, CITY OF NEW YORK and MICHAEL BLOOMBERG, Defendants. ORDER RICHARD J. SULLIVAN, District Judge: The Court is in receipt of the parties joint letter dated June 1, 2011, outlining a discovery dispute. Speci cally, Defendants ask this Court to preclude Plaintiffs planned depositions of Mayor Michael Bloomberg and former Deputy Mayor Edward Skyler, arguing that Mayor Bloomberg and Deputy Mayor Skyler lack unique personal knowledge about the basis for the Parks Departments promulgation of the regulations at issue in this action.

49a Appendix C For the following reasons, the Court deems Defendants request as a motion for a protective order pursuant to Rule 26(c) of the Federal Rules of Civil Procedure and grants Defendants motion. Under Rule 26(c), a party or any person from whom discovery is sought may move for a protective order ... to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense ... forbidding the disclosure or discovery. Fed. R. Civ. P. 26(c)(1)(A). Depositions of high level government of cials are permitted upon a showing that: (1) the deposition is necessary in order to obtain relevant information that cannot be obtained from any other source and (2) the deposition would not significantly interfere with the ability of the of cial to perform his governmental duties. Marisol A. v. Giuliani, No. 95 Civ. 10533 (RJW), 1998 WL 132810, at *2 (S.D.N.Y. March 23, 1998). Under the rst prong, courts only permit the deposition of a high ranking government of cial if he has unique personal knowledge that cannot be obtained elsewhere. Id. at *3 (emphasis added). The same principle applies to former high ranking governmental of cials. See Gil v. County of Suffolk, No. 06 Civ. 1683 (LDW) (ARL), 2007 WL 2071701, at *2 (E.D.N.Y. July 13, 2007); Bey v. City of New York, No. 99 Civ. 3873 (LMM)(RLE), 2007 WL 1601507, at *2 (S.D.N.Y. June 4, 2007). While Plaintiffs make a variety of allegations in the letter against both Mayor Bloomberg and former Deputy Mayor Skyler, Plaintiffs fail to demonstrate both that the desired deponents have personal knowledge of the events

50a Appendix C in question in this action and that any information they have cannot be obtained elsewhere, namely by deposing Parks Commissioner Adrian Benepe. Indeed, Plaintiffs Complaint focuses on Commissioner Benepe as the driving force behind the Parks regulations at issue. (See. e.g., Compl. 11, 18, 24.) Accordingly, IT IS HEREBY ORDERED THAT Defendants motion for a protective order barring the deposition of Mayor Bloomberg and former Deputy Mayor Skyler is GRANTED. SO ORDERED. DATED: June 1, 2011 New York, New York /s/ RICHARD J. SULLIVAN UNITED STATES DISTRICT JUDGE