Petition for Writ of Certiorari — Charles Meyers, et al., Petitioners v. City of New York, New York, et al.

No. 20—

In The Supreme Court of the United States

—

CHARLES MEYERS, JOHN BAKER, JUSTIN

STREKAL, MILES WALSH, Petitioners,

v.

CITY OF NEW YORK, MICHAEL R. BLOOMBERG,

INDIVIDUALLY AND IN HIS OFFICIAL

CAPACITY AS FORMER MAYOR OF THE CITY OF

NEW YORK, CHIEF OF DEPARTMENT JOSEPH J.

ESPOSITO, INDIVIDUALLY AND IN HIS

OFFICIAL CAPACITY, NYPD COMMISSIONER

RAYMOND KELLY, INDIVIDUALLY AND IN HIS

OFFICIAL CAPACITY, Respondents.

—

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

—

PETITION FOR A WRIT OF CERTIORARI

—

Paul L. Mills

Counsel of Record

Law Office of Paul L. Mills

Park West Finance Branch

P.O. 20141

New York, NY 10025

(646) 637-3693

sllmluap@gmail.com

—

LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com

i

QUESTIONS PRESENTED FOR REVIEW

A. How individualized must government

permission be to raise fair notice protection under the

due process component of the Fourteenth

Amendment?

B. Is notice that government permission has

been revoked, prior to dispersal of First Amendment

assembly, necessary to satisfy the Fourteenth

Amendment fair notice protection?

C. This Court has ruled that reaching a

Fourteenth Amendment constitutional question

without first considering whether a municipal statute

is dispositive of the matter, so far departs from the

accepted and usual course of judicial proceedings as to

call for this Court to exercise its supervisory power by:

granting certiorari; vacating the summary decision of

the Circuit Court; and remanding the case for

consideration of the statutory grounds (“CVR”).

Does reaching and deciding questions of First

and Fourth Amendment constitutionality, without

first considering whether statutory provisions are

dispositive of the matter, call for such a grant of CVR?

ii

LIST OF PARTIES TO PROCEEDING

The caption contains the name of all the parties

in the court of appeals.

OTHER COURT PROCEEDINGS

1. Meyers v. City of New York, No. 14-cv-09142,

U.S. District Court for the Southern District of

New York. Opinion and order denying motion

for summary judgment dismissal without

prejudice. Order entered October 27, 2015. Not

reported.

2. Meyers v. City of New York, No. 15-3841, U.S.

Court of Appeals for the Second Circuit. Order

vacating and remanding judgment of the

district court entered October 27, 2015. Order

entered February 2, 2017. Meyers v. City of New

York 675 F. App'x 93 (2d Cir. 2017).

3. Meyers v. City of New York, No. 14-cv-09142,

U.S. District Court for the Southern District of

New York. Order dismissing all defendants.

Judgment entered October 26, 2017. Not

reported.

4. Meyers v. City of New York, No. 14-cv-09142,

U.S. District Court for the Southern District of

New York, order amending prior judgment to

dismiss only individual defendants entered

October 26, 2017. Judgment entered December

5, 2017. Not reported.

5. Meyers v. City of New York, No. 14-cv-9142, U.S.

District Court for the Southern District of New

York. Order granting dismissal of remaining

claims. Judgment entered March 28, 2019. Not

reported.

iii

6. Meyers v. City of New York, No. 19-892, U.S.

Court of Appeals for the Second Circuit. Order

affirming judgment of the district court entered

March 28, 2019. Summary Order and

Judgment entered April 30, 2020. Not reported.

7. Meyers v. City of New York, No. 19-892, U.S.

Court of Appeals for the Second Circuit.

Rehearing denied June 9, 2020. Not reported.

iv

TABLE OF CONTENTS

Questions Presented for Review ................................ i

List of Parties to The Proceeding .............................. ii

Other Court Proceedings ........................................... ii

Table of Authorities .................................................. vi

Citations of Reported Opinions and Orders ............. 1

Statement of the Basis for Jurisdiction ..................... 1

Constitutional and Statutory Provisions

Involved ....................................................................... 1

Statement of The Case ............................................... 4

Reasons for Allowance of The Writ ............................ 8

1. This case squarely presents two unsettled

issues, in an important First Amendment

area, that are likely to recur. ..................... 8

A. The level of permission individualization

required to raise the Fourteenth

Amendment fair notice protection is an

unsettled question. ............................... 8

B. The role that announcement of a decision

to revoke government permission plays,

if any, in the fair notice protection is an

unsettled question ................................. 9

C. The grant of permission to assembled

demonstrators, and the question of

whether it gives rise to fair notice

protection, are likely to recur.............. 10

v

2. This case calls for an exercise of the Court’s

supervisory power. ................................... 10

A. It is forbidden to reach constitutional

issues without considering whether a

municipal statute will resolve the

matter. ................................................ 10

B.

Application of the rule in this

case. ..................................................... 11

Conclusion ................................................................. 12

Appendix A. Summary Order of The United States

Court of Appeals for The Second Circuit Affirming

Dismissal ................................................................... 1a

Appendix B. Order of The United States District Court

for The Southern District of New York Dismissing

Municipal Defendant City of New York................. 10a

Appendix C. Order of The United States District Court

for The Southern District of New York Amending

Prior Order of Dismissal......................................... 43a

Appendix D. Order of The United States District

Court for The Southern District of New York

Dismissing Action In Its Entirety .......................... 47a

Appendix E Summary Order of United States Court of

Appeals for The Second Circuit Court Vacating and

Remanding. ............................................................. 53a

Appendix F. Order of The United States Court of

Appeals for the Second Circuit Denying

Rehearing ................................................................ 58a

vi

TABLE OF AUTHORITIES

Cases

Cox v. Louisiana, 379 U.S. 559 (1965) ..................9, 11

Monell v. Dep’t of Soc. Servs. Of City of New York,

436 U.S. 658 (1978) ..................................................7

Raley v. Ohio, 360 U.S. 423 (1959)........................9, 10

Constitutional Provisions

U.S. Const. am. 1 ............................................... passim

U.S. Const. am. 4 ............................................... passim

U.S. Const. am. 5 ...................................................... 10

U.S. Const. am. 14 ............................................. passim

Statutes

28 U.S. C. § 1254(1) .................................................... 1

28 U.S. C. § 1331......................................................... 3

42 U.S. C. § 1983............................................. 2, 3, 4, 7

Zoning Resolution of the City of New York, Article

III: Commercial District Regulations, Chapter 7 –

Special Regulations, Section 37-623............. 3, 5, 11

Zoning Resolution of the City of New York, Article

III: Commercial District Regulations, Chapter 7 –

Special Regulations, Section 37-77............... 2, 5, 11

Zoning Resolution of the City of New York, Article

III: Commercial District Regulations, Chapter 7 –

Special Regulations, Section 37-727............. 3, 5, 11

Rules

Supreme Court Rule 10(a) ........................................ 11

vii

Other Authorities

https://www.washingtonpost.com/nation/2020/06/04/

george-floyd-protests-live-updates/ .......................... 10

1

CITATIONS OF REPORTED OPINIONS AND

ORDERS

The order of the U.S. Court of Appeals for the

Second Circuit, entered February 2, 2017, vacating

and remanding the judgment of the district court

entered October 27, 2015 in Meyers v. City of New

York, No. 15-3841, is reported at Meyers v. City of New

York, 675 F. App'x 93 (2d Cir. 2017).

STATEMENT OF THE BASIS FOR THE

JURISDICTION

The judgment of the court of appeals was

entered on March 28, 2019. A petition for rehearing

was denied on June 9, 2020. The jurisdiction of this

Court is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The First Amendment to the United States

Constitution provides that “Congress shall make no

law respecting an establishment of religion, or

prohibiting the free exercise thereof; or abridging the

freedom of speech, or of the press; or the right of the

people peaceably to assemble, and to petition the

government for a redress of grievances.”

The Fourth Amendment to the United States

Constitution provides that

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not

be violated, and no warrants shall issue, but

upon probable cause, supported by oath or

2

affirmation, and particularly describing the

place to be searched, and the persons or things

to be seized.

The Fourteenth Amendment to the United

States Constitution, Section One provides that

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof,

are citizens of the United States and of the

state wherein they reside. No state shall make

or enforce any law which shall abridge the

privileges or immunities of citizens of the

United States; nor shall any state deprive any

person of life, liberty, or property, without due

process of law; nor deny to any person within

its jurisdiction the equal protection of the

laws.

42 U.S. C. § 1983 provides that

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen

of the United States or other person within the

jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by

the Constitution and laws, shall be liable to

the party injured in an action at law, suit in

equity, or other proper proceeding for redress,

except that in any action brought against a

judicial officer for an act or omission taken in

such officer’s judicial capacity, injunctive

relief shall not be granted unless a declaratory

decree was violated or declaratory relief was

unavailable. For the purposes of this section,

3

any Act of Congress applicable exclusively to

the District of Columbia shall be considered to

be a statute of the District of Columbia.

The Zoning Resolution of the City of New York,

Article III: Commercial District Regulations, Chapter

7 – Special Regulations, Section 37-77 Maintenance

provides that

The building owner shall be responsible for

the maintenance of the public plaza including,

but not limited to, the location of permitted

obstructions pursuant to Section 37-726, litter

control, management of pigeons and rodents,

maintenance of required lighting levels, and

the care and replacement of furnishings and

vegetation within the zoning lot.

The Zoning Resolution of the City of New York,

Article III: Commercial District Regulations, Chapter

7 – Special Regulations, Section 37-623 provides that

“The City Planning Commission may, upon

application, authorize the closing during certain

nighttime hours of an existing plaza, residential plaza

or urban plaza for which a floor area bonus has been

received, pursuant to Section 37-727 (Hours of

access).”

The Zoning Resolution of the City of New York,

Article III: Commercial District Regulations, Chapter

7 – Special Regulations, Section 37-727 provides that

“All public plazas shall be accessible to the public at

all times, except where the City Planning Commission

has authorized a nighttime closing, pursuant to the

provisions of this Section.”

4

STATEMENT OF THE CASE

Petitioners allege claims for damages arising

from violations of the First, Fourth, and Fourteenth

Amendments to the U.S. Constitution and 42 U.S. C.

§ 1983. The basis for federal jurisdiction in the court

of first instance, the United States District Court for

the Southern District of New York, was thus 28 U.S.

C. § 1331, which grants the district courts original

jurisdiction of all civil actions arising under the

Constitution or laws of the United States.

Following their arrests for trespass, disorderly

conduct,

and

obstruction

of

governmental

administration, petitioners Charles Meyers, Justin

Strekal, Miles Walsh and John Blake sued the City of

New York and three of its former administrators,

Michael Bloomberg (mayor), Raymond Kelly (police

commissioner) and Joseph Esposito (police chief), for

damages under 42 U.S.C. §1983, alleging false arrest

and imprisonment (Fourth Amendment), malicious

prosecution (Fourth Amendment), retaliatory arrest

(First Amendment), and violation of the right to due

process (Fourteenth Amendment). Appendix (“App.”)

4a, 6a, 7a. The district court denied a motion for

dismissal without prejudice. App. 47a. On

interlocutory appeal, the circuit vacated and

remanded to the district court. App. 53a. The district

court then granted dismissal on all claims. App. 47a.

The district court amended that ruling to dismiss only

the individual defendants. App. 43a. The district court

subsequently granted judgment on the pleadings in

favor of the remaining municipality defendant. App.

10a. On appeal, the circuit court affirmed dismissal as

to all claims [App. 1a] and denied rehearing [App.

58a]. The court reasoned that there was Fourth

5

Amendment probable cause to arrest the petitioners,

[App. 4a-6a] and no First Amendment discrimination

[App. 6a-7a]; that there was no Fourteenth

Amendment

violation

because

the

mayor’s

announcement of government permission to members

of OWS, that they could remain in this park

indefinitely, was insufficiently “individualized” to give

rise to fair notice protection [App. 8a]; and, finally,

automatic revocation of the permission obviously had

taken place, therefore the fair notice protection, if any,

had been forfeited: “[s]ince Plaintiffs refused to comply

with a lawful dispersal order – necessitated in part by

the protestors’ own habitual violation of City rules –

the Mayor’s statement provides them with no basis for

asserting a property interest in remaining

permanently at the Park.” [App. 7a-8a].

1. Since the 1960s, New York has had a policy,

enacted as the provisions of Sections 37-60 and 37-70

of its Zoning Resolution, of negotiating agreements

between its City Council Planning Commission

(“CPC”) and private developers to exchange

exemptions to city limits on upper floor area

construction, for the creation and maintenance, by

private owners, of nearby plazas as parks with

easements for their use by the public, designated as

“permanent open parks” and “special permit plazas.”

App. 38a; The Zoning Resolution of the City of New

York, Article III: Commercial District Regulations,

Chapter 7 – Special Regulations, Sections 37-77, 37623 and 37-727 see above at 2-3. Zuccotti Park, a small

plaza in lower Manhattan’s financial district, was

such a special permit plaza. Id.

2. Protesters against financial inequality in

American society and government, affiliated under

6

the name Occupy Wall Street (“OWS”) began living

together in Zuccotti Park, a small, privately-owned,

public space in downtown Manhattan’s financial

district, as a form of First Amendment assembly and

expressive conduct. App. 2a-3a. Their community

featured various erected structures, including a

kitchen, medical clinic tent, and library, and had a

global audience via press media and the internet. Id.,

Meyers v. City of New York, United States Court of

Appeals for The Second Circuit, Case No. 19-892,

Appendix at A-77 – A-78, ¶¶ 121-123.

3. Respondent mayor announced that OWS

could lawfully remain in the park indefinitely,

although respondent city would enforce any violation

of the law. App. 8a.

4. After the respondent mayor’s announcement

that protesters could remain, police, at the mayor’s

direction, issued a midnight park closure and

dispersal order, without explanation. App. 3a. The

purpose of these orders, as subsequently disclosed in

the course of litigation, was allegedly to enable

municipal workers to clean the privately-owned park.

App. 7a, 24a, 37a; Meyers v. City of New York, United

States Court of Appeals for the Second Circuit, Case

No. 19-892, Appendix at A-335. An hour later,

petitioners Charles Meyers, Justin Strekal, Miles

Walsh and John Blake, were among those remaining

and were arrested. App. 3a.

5. Meyers, Strekal, Walsh and Blake sued, as

representative class action plaintiffs, the former city

administrators Bloomberg, Kelly and Esposito,

asserting false arrest and imprisonment, malicious

prosecution, retaliatory arrest, and violations of due

process, in violation of the First, Fourth, and

7

Fourteenth amendments to the United States

Constitution, under 42 U.S.C. §1983 [App. 4a-8a] and

Monell v. Dep’t of Soc. Servs. of City of New York, 436

U.S. 658, 690 (1978) [App. 14a-18a]. The district court

ultimately granted judgment in favor of respondents.

App. 2a.

As to the individual defendant mayor, police

commissioner, and police chief of department, the

district court granted qualified immunity, reasoning

that the administrative officials faced “ambiguities of

fact and law” concerning the implications of the

ownership status of the park, and because the

dispersal order itself could be “reasonably construed”

to revoke the mayor’s permission to stay. App. 50a51a.

As to the defendant City of New York, on the

false arrest and imprisonment claims, the district

court ruled there was probable cause to arrest

petitioners for trespass, disorderly conduct, and

obstruction of governmental administration. App.

22a-34a. The court ruled that the protesters were

removed for refusing a dispersal order arising from

unlawful activity, particularly the erection of tents,

rather than for remaining in the park, thus rendering

lawful the dispersal order, despite the protesters’

right to fair notice following the mayor’s permission

announcement; and that they previously had arguable

constructive notice that use of tents was unlawful

from aborted NYPD efforts to remove their tents, thus

“further dampening” their Fourteenth Amendment

claim (App. 41a-42a). The court dismissed the

malicious prosecution claim because there had been

probable cause for the charges as there had been for

the arrests. App. 34a-35a. Accordingly, the district

8

court entered judgment on the pleadings in

respondents’ favor on all claims and dismissed the

case. App. 42a.

6. Petitioners appealed the district court’s

decision to the Court of Appeals for the Second Circuit.

App. 2a. The appellate court affirmed the lower court

ruling, finding that the arrests were supported by

Fourth Amendment probable cause, given a lawful

dispersal order based on the park congestion and the

protesters’ use of erected structures [App. 5a-6a]; did

not discriminate under the First Amendment because

the police action was content neutral, narrowlytailored, and directed at everyone in the park, not only

the protesters [App. 6a-7a]; and that the respondents’

orders were lawful under the Fourteenth Amendment

because neither the Zoning Resolution provisions, nor

the mayor’s permission, created an individualized due

process right, and failure to disperse as ordered

exceeded the limits of the permission by violating the

law [App. 7a-8a]. The court thus affirmed the grant of

judgment on the pleadings dismissal of all claims.

App. 9a.

REASONS FOR ALLOWANCE OF THE WRIT

1. This case squarely presents two unsettled

issues, in an important First Amendment area, that

are likely to recur.

A.

The

level

of

permission

individualization required to raise the Fourteenth

Amendment fair notice protection is an unsettled

question.

This case squarely presents two unsettled

questions remaining from prior decisions of this

9

Court: first, to what extent must permission be

individualized to give rise to a fair notice right under

the 14th Amendment. The prior decisions of this Court

in Cox v. Louisiana, 379 U.S. 559 (1965) (permission

granted, to a group of protesters gathered near a

courthouse, to remain there, who are then convicted

for refusing an order to leave) (“Cox”) and Raley v.

Ohio, 360 U.S. 423, 438 (1959) (permission granted to

witnesses subpoenaed to testify before a legislative

committee, to invoke their 5th amendment protection

against self-incrimination, later convicted of contempt

for refusing to testify) (“Raley”), did not address the

issue of an “individualization” requirement for fair

notice permission, and left this aspect of the fair notice

right unsettled.

Here, the lower court ruled that government

permission to remain, issued to a group of protesters

in a public plaza, then arrested, as in Cox, for refusing

an order to leave, lacked sufficient individualization

to support fair notice protection, although neither Cox

nor Raley considered such a requirement. App. 8a.

B. The role that announcement of a

decision to revoke government permission plays, if

any, in the fair notice protection, is an unsettled

question.

Second, neither Cox nor Raley established the

role a revocation without an announcement of that

revocation plays in limiting permission, even if the

revocation was otherwise valid. In Cox, police

announced permission had been revoked, ordered

dispersal, and arrested the group when it refused to

leave. Cox at 572. In Raley, as to one of the witnesses,

the government stated grounds for revoking its grant

of permission (i.e., that the witness’ home address

10

could not be self-incriminating), resulting in a

contempt conviction for that witness. Raley at 442.

Here, the government did not announce that

the government permission had been revoked, nor

state grounds for the revocation. It internally decided

protesters had themselves revoked permission, by

having an overcrowded campsite and erecting more

tents, and issued a dispersal order without

explanation. App. 3a.

C. The grant of permission to assembled

demonstrators, and the question of whether it gives

rise to fair notice protection, are likely to recur.

Permission for First Amendment assembly is a

common feature of protest activity in public spaces.

See,

e.g.,

https://www.washingtonpost.com/nation/2020/06/04/g

eorge-floyd-protests-live-updates/. It is doubtful that

further percolation of cases from lower courts will

provide so clear and undisputed a set of facts as to

either of these unsettled questions, as this case

squarely presents.

2. This case calls for an exercise of the Court’s

supervisory power.

A.

It

is

forbidden

to

reach

constitutional issues without first considering

whether a municipal statute will resolve the matter.

Perhaps no rule of judicial review is so

fundamental

to

the

proper

disposition

of

constitutional disputes as the requirement that courts

first consider statutory grounds, before reaching

constitutional questions. Supreme Court Rule 10(a)

lists departure from the “accepted and usual course of

11

judicial proceedings” as one of the few bases for a

grant of certiorari. The sole reported instance of that

provision’s application to date has been New York

Transit Authority v. Beazer, 440 U.S. 568, 582 (1979);

a lower court decision arising from a circuit court’s

summary decision which overlooked consideration of

a municipal statute, to reach a Fourteenth

Amendment issue.

B.

Application of the rule in this case.

Here, the lower courts considered only the

Fourteenth Amendment issue raised by a municipal

statute, and overlooked the statutory provisions when

deciding First and Fourth Amendment disputes. If

New York City’s zoning code prohibited Zuccotti Park

from being closed without city council approval, and/or

prohibited municipal employees from cleaning the

privately-owned park because the owners were

required to maintain it at their own expense, then the

police dispersal orders and arrests, closing the park

without city council approval, to have municipal

workers, not private workers, clean the park, then the

dispersal order to enable these actions was unlawful

and violated the First and Fourth Amendments. Cox

v. Louisiana, 379 U.S. 559 (1965) (holding dispersal

order could not support arrests under the 1st

Amendment because alleged dispersal basis was not

consistent with local statute); The Zoning Resolution

of the City of New York, Article III: Commercial

District Regulations, Chapter 7 – Special Regulations,

Sections 37-277, 37-77 and 37-623, see above at 2-3.

Such a finding could also result in a conclusion

that the First Amendment was violated on

discrimination grounds, because the government’s

decision to

proceed against

protesters for

12

administrative code violations, which were the private

owner’s statutory responsibility, was not supported by

a legitimate government interest in taking action

against the protesters.

This Court should, at minimum, grant

certiorari to vacate the Circuit ruling and remand for

consideration of the pertinent statutory grounds as

they related to the First and Fourth Amendment

claims.

CONCLUSION

The Court should grant the petition for a writ

of certiorari.

Respectfully submitted,

Paul L. Mills

Counsel for Petitioners

Law Office of Paul L. Mills

Park West Finance Branch

PO 20141

New York, NY 10025

September 2020