     10-4355-cv
     Marcavage v. City of New York

 1                       UNITED STATES COURT OF APPEALS
 2
 3                           FOR THE SECOND CIRCUIT
 4
 5                              August Term, 2011
 6
 7
 8      (Argued: January 24, 2012           Decided: August 2, 2012)
 9
10                            Docket No. 10-4355-cv
11
12   - - - - - - - - - - - - - - - - - - - - - - -x
13
14   MICHAEL MARCAVAGE, STEVEN C. LEFEMINE,
15
16                      PLAINTIFFS-APPELLANTS,
17
18               -v.-
19
20   THE CITY OF NEW YORK, RAYMOND KELLY, in his
21   individual and official capacity as the
22   Commissioner of the New York City Police
23   Department, SERGEANT EBANKS, CAPTAIN STAPLES,
24   OFFICER DONNELLY, AS YET UNKNOWN OFFICERS, in
25   their individual capacities and official
26   capacities as Police Officers for the New York
27   Police Department,
28
29                      DEFENDANTS-APPELLEES.
30
31   - - - - - - - - - - - - - - - - - - - - - - -x
32

33         Before:           JACOBS, Chief Judge, LEVAL and
34                           LIVINGSTON, Circuit Judges.

35
1        Plaintiffs, two protesters at the 2004 Republican

2    National Convention at Madison Square Garden, were arrested

3    after they failed to comply with police instructions to move

4    from an area where demonstrating was prohibited to one

5    designated for protesting.    They brought the present action

6    under 42 U.S.C. § 1983, alleging that the policy violated

7    the First Amendment and that their arrest violated the

8    Fourth Amendment and now appeal the judgment of the United

9    States District Court for the Southern District of New York

10   (Sullivan, J.) granting summary judgment in favor of the

11   defendants.   We conclude that the restriction on speech was

12   a reasonable time, place, and manner restriction, and that

13   Plaintiffs’ arrest was supported by probable cause.

14       Affirmed.

15                           James A. Campbell (Jeffrey A.
16                           Shafer, Brian W. Raum, on the
17                           briefs), Alliance Defense Fund, for
18                           Plaintiffs-Appellants.

19                           Drake A. Colley (Edward F.X. Hart,
20                           on the brief), for Michael A.
21                           Cardozo, Corporation Counsel of the
22                           City of New York, for Defendants-
23                           Appellees.

24   DENNIS JACOBS, Chief Judge:

25       Michael Marcavage and Steven Lefemine (“Plaintiffs”),

26   protesters at the 2004 Republican National Convention at

27   Madison Square Garden, were arrested after they failed to


                                    2
1    comply with police instructions to move along from an area

2    where demonstrating was prohibited and to one designated for

3    protesting.   They brought this suit under 42 U.S.C. § 1983

4    against the New York City Police Department (“NYPD”), the

5    Police Commissioner, three NYPD officers, and others

6    (collectively, “Defendants”), seeking declaratory and

7    injunctive relief as well as money damages.   Plaintiffs

8    claim the NYPD’s policy around the convention violated the

9    First Amendment and that Plaintiffs’ arrest violated the

10   Fourth Amendment.    This appeal is taken from a judgment of

11   the United States District Court for the Southern District

12   of New York (Sullivan, J.) granting summary judgment in

13   favor of Defendants.   We conclude that the restriction on

14   speech was a reasonable time, place, and manner restriction,

15   and that the arrests were supported by probable cause.

16

17                              BACKGROUND

18       The Convention.    The 2004 Republican National

19   Convention (“the Convention”) was held from August 30 to

20   September 2 at Madison Square Garden (“the Garden”) in

21   midtown Manhattan.    The security planners of the NYPD

22   understood that political conventions are potential

23   terrorist targets and therefore prepared for the possibility


                                    3
1    that groups and individuals would engage in criminal conduct

2    that could significantly endanger public safety.    The NYPD

3    was also responsible for accommodating commuters,

4    businesses, and residents in the vicinity.   As many as

5    50,000 people were expected to attend the four-day

6    Convention.   The NYPD anticipated that there would be a

7    volume of protest activity not seen in New York City in

8    decades, including potentially hundreds of thousands of

9    protesters throughout the city.

10       The Garden sits atop Pennsylvania Station (“Penn

11   Station”), one of the transportation hubs of New York City.

12   Approximately 1,300 trains and 600,000 riders pass through

13   Penn Station each day.   The vicinity is ordinarily congested

14   by vehicular and pedestrian traffic; a major event at the

15   Garden can bring thousands of additional pedestrians.

16       The complex is a superblock bordered by Seventh and

17   Eighth Avenues to the east and west, and by 31st and 33rd

18   Streets to the south and north.    During the Convention,

19   Seventh Avenue was closed to non-emergency vehicle traffic

20   from 31st Street to 34th Street.   The crosswalk at Seventh

21   Avenue and 32nd Street was open to pedestrians, who could

22   use it without waiting for non-emergency traffic.

23

24

                                   4
1        The NYPD implemented a three-zone system outside the

2    Garden: a demonstration area, a frozen area (with no

3    pedestrian traffic), and a no-demonstration area.

4        In the “frozen zone”--the Seventh Avenue sidewalk

5    adjacent to the Garden between 31st and 33rd Streets--

6    barriers were erected and all pedestrian traffic was

7    prohibited.

8        Directly across Seventh Avenue from the frozen zone was

9    the “no-demonstration” zone between 31st and 33rd Streets.

10   People on that east sidewalk were not permitted to protest,

11   distribute leaflets, or congregate in that area, even if

12   they remained in motion and kept up with the flow of

13   pedestrian traffic.1   NYPD officers advised people in the



         1
           Defendants contend that the zone was actually a no-
     standing zone, where people were not permitted to stand
     still or congregate but where they could engage in
     expressive activity, such as protesting, so long as they
     kept up with the flow of traffic and did not congregate in
     groups. However, Plaintiffs adduced testimony from NYPD
     officials that people in this zone were not permitted to
     demonstrate or distribute leaflets, even if they remained in
     motion and kept up with the flow of pedestrian traffic.
     Because this case comes to us on appeal from the grant of
     summary judgment for Defendants, we must view the evidence
     in the light most favorable to the non-moving party (here,
     Plaintiffs). Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir.
     2003). Accordingly, we must credit Plaintiffs’ evidence and
     accept, as the district court did, that the zone along the
     east side of Seventh Avenue was a no-demonstration zone--not
     a no-standing zone. See Marcavage v. City of New York, No.
     05 Civ. 4949(RJS), 2010 WL 3910355, at *5 (S.D.N.Y. Sept.
     29, 2010).
                                   5
1    vicinity of the Garden to go to the demonstration zone if

2    they wanted to protest.

3        The “demonstration zone” was the full width of Eighth

4    Avenue, extending south from 31st Street.   Within the

5    demonstration zone, expressive activity was permitted at any

6    time during the Convention.   The NYPD issued sound permits

7    and constructed a stage for demonstrators at the north end

8    of the demonstration area, near the 31st Street

9    intersection, closest to the Garden.   Thousands of

10   protesters used the demonstration area.

11       The Protest.   On September 1, 2004, Plaintiffs were

12   standing in the no-demonstration zone between 32nd and 33rd

13   Streets, holding anti-abortion signs--one sign was four by

14   six feet, the other was three by five.    Plaintiffs were

15   approximately five feet from the facade of the Pennsylvania

16   Hotel, where (they contend) they were outside the flow of

17   pedestrian traffic.   After 10 to 15 minutes, they were

18   approached by police officers.

19       The officers repeatedly told Plaintiffs they could not

20   protest there, and directed them to the demonstration zone.

21   Plaintiffs objected that the demonstration zone was not

22   within sight and sound of the Convention attendees and that

23   they did not want to be in the demonstration zone lumped

24   with other demonstrators.   At some point during the

                                   6
1    encounter, Plaintiffs moved to the south side of 32nd

2    Street, in the general direction of the demonstration zone

3    (which was south and west of the initial location).     But

4    Plaintiffs continued to contest the officers’ commands.       All

5    told, Plaintiffs were ordered to leave 17 times by three

6    different police officers before they were informed that

7    they were blocking traffic and placed under arrest.

8        Marcavage and Lefemine were charged with disorderly

9    conduct, and Marcavage was also charged with resisting

10   arrest.    All charges against Marcavage were ultimately

11   dismissed.   Lefemine accepted an adjournment in

12   contemplation of dismissal for his charge of disorderly

13   conduct.   The charge was ultimately dismissed.

14       The Proceedings.    Plaintiffs brought the present action

15   under § 1983 alleging violations of the First and Fourth

16   Amendments and seeking money damages and equitable relief.

17   The district court granted summary judgment for Defendants,

18   holding that the NYPD’s policy was a permissible time,

19   place, and manner restriction on expression, and that

20   probable cause supported Plaintiffs’ arrest.      Marcavage v.

21   City of New York, No. 05 Civ. 4949(RJS), 2010 WL 3910355

22   (S.D.N.Y. Sept. 29, 2010).    Plaintiffs filed this appeal.




                                    7
1                               DISCUSSION

2        We review the grant of summary judgment de novo.

3    Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d

4    Cir. 2003).   Summary judgment is appropriate if there is no

5    genuine issue as to any material fact and the moving party

6    is entitled to judgment as a matter of law.   Id.   In

7    assessing a motion for summary judgment, we are “required to

8    resolve all ambiguities and draw all permissible factual

9    inferences in favor of the party against whom summary

10   judgment [was granted].”   Terry v. Ashcroft, 336 F.3d 128,

11   137 (2d Cir. 2003) (internal quotation marks omitted).

12

13                                  I

14       A question has arisen as to this Court’s jurisdiction

15   to consider the claims for declaratory and injunctive

16   relief.

17       Article III limits the subject matter jurisdiction of

18   federal courts to actual “cases” or “controversies,” U.S.

19   Const. art. III, § 2, cl. 1; accord Friends of the Earth,

20   Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180

21   (2000), which requires, among other things, that a plaintiff

22   sustain the burden of establishing standing, Raines v. Byrd,

23   521 U.S. 811, 818-19 (1997); Simon v. E. Ky. Welfare Rights

24   Org., 426 U.S. 26, 37-38 (1976).

                                    8
1        Plaintiffs lack standing to pursue their equitable

2    claims.   To obtain prospective relief, such as a declaratory

3    judgment or an injunction, a plaintiff must show, inter

4    alia, “a sufficient likelihood that he [or she] will again

5    be wronged in a similar way.”       City of Los Angeles v. Lyons,

6    461 U.S. 95, 111 (1983).   That is, a plaintiff must

7    demonstrate a “certainly impending” future injury.      Whitmore

8    v. Arkansas, 495 U.S. 149, 158 (1990) (internal quotation

9    marks omitted); accord O’Shea v. Littleton, 414 U.S. 488,

10   496 (1974).   In establishing a certainly impending future

11   injury, a plaintiff cannot rely solely on past injuries;

12   rather, the plaintiff must establish how he or she will be

13   injured prospectively and that the injury would be prevented

14   by the equitable relief sought.      Whitmore, 495 U.S. at 158-

15   59; Lyons, 461 U.S. at 102-03; O’Shea, 414 U.S. at 495-96.

16       Neither party’s national convention will be in New York

17   City in 2012, and there is no prospect that a national

18   convention will be coming anytime to the Garden, or that, if

19   one did, similar policies regarding pedestrian traffic and

20   protesters would be enacted or enforced.      Since Plaintiffs

21   have not demonstrated a certainly impending future injury

22   that could be redressed by this Court, we lack jurisdiction

23   to adjudicate their claims for equitable relief.

24

                                     9
1        Standing to seek retrospective relief, such as damages,

2    requires a showing that [1] the plaintiff suffered an injury

3    in fact that is concrete and not conjectural or

4    hypothetical, [2] the injury is fairly traceable to the

5    actions of the defendant, and [3] the injury will be

6    redressed by a favorable decision.     Lujan v. Defenders of

7    Wildlife, 504 U.S. 555, 560-61 (1992).     Plaintiffs make the

8    requisite showing as to their claim for damages.

9        Because we have jurisdiction over the claims for money

10   damages, we turn to them now.

11

12                                   II

13       Plaintiffs contend that the no-demonstration zone along

14   Seventh Avenue was an unreasonable time, place, and manner

15   restriction, and therefore violated the First Amendment.

16       Preliminarily, we consider [1] whether Plaintiffs were

17   engaged in First Amendment protected activity [2] in a

18   traditional public forum, and [3] if the restriction on

19   speech was unrelated to content.     See Ward v. Rock Against

20   Racism, 491 U.S. 781, 790-91 (1989).

21       First, Plaintiffs’ display of a political sign

22   constituted political speech, which “is entitled to the

23   fullest possible measure of constitutional protection.”        See

24   Members of the City Council v. Taxpayers for Vincent, 466

                                     10
1    U.S. 789, 816 (1984); see also Frisby v. Schultz, 487 U.S.

2    474, 479 (1988) (peacefully picketing); United States v.

3    Grace, 461 U.S. 171, 176 (1983) (peacefully displaying signs

4    or leaflets).

5        Second, Plaintiffs were carrying out their expressive

6    activity in a traditional public forum.    “Sidewalks, of

7    course, are among those areas of public property that

8    traditionally have been held open to the public for

9    expressive activities,” Grace, 461 U.S. at 179; accord

10   Frisby, 487 U.S. at 480, and the sidewalks of New York are

11   the “prototypical” traditional public forum, Schenck v. Pro-

12   Choice Network of W. N.Y., 519 U.S. 357, 377 (1997); accord

13   Loper v. N.Y.C. Police Dep’t, 999 F.2d 699, 704 (2d Cir.

14   1993).   “Speech finds its greatest protection in traditional

15   public fora,” Make the Road by Walking, Inc. v. Turner, 378

16   F.3d 133, 142 (2d Cir. 2004)--though even there the right is

17   “not absolute,” United for Peace & Justice v. City of New

18   York, 323 F.3d 175, 176 (2d Cir. 2003) (per curiam).

19       Third, as Plaintiffs concede, the restraint on

20   expressive activity was content neutral.     Blue Br. at 26.

21   This concession is well-taken.     A regulation is content

22   neutral when it is “justified without reference to the

23   content of the regulated speech.”    City of Renton v.

24   Playtime Theatres, Inc., 475 U.S. 41, 48 (1986) (emphasis

                                   11
1    and internal quotation mark omitted).    The restriction on

2    expressive activity was not aimed at the content of the

3    message; no demonstrating of any kind was allowed in that

4    zone.

5        Since Plaintiffs were engaged in expressive activity in

6    a public forum and the regulation was content neutral, the

7    restriction on speech near the Convention is properly

8    characterized as a time, place, and manner restriction.

9    Such restrictions are permissible if they “‘[1] are

10   justified without reference to the content of the regulated

11   speech, [2] . . . are narrowly tailored to serve a

12   significant governmental interest, and [3] . . . leave open

13   ample alternative channels for communication of the

14   information.’”   Ward, 491 U.S. at 791 (quoting Clark v.

15   Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984)).

16   Defendants bear the burden of demonstrating that the

17   regulation was constitutional.     United States v. Playboy

18   Entm’t Grp., Inc., 529 U.S. 803, 816-17 (2000); Deegan v.

19   City of Ithaca, 444 F.3d 135, 142 (2d Cir. 2006).

20       Since the restriction was content neutral, the decisive

21   issues are narrow tailoring and alternative channels.

22

23

24

                                   12
1                                  A

2        Whether the NYPD’s policy was narrowly tailored to

3    serve a significant government interest depends on the

4    importance of the government’s interest and the breadth of

5    the speech restriction.

6

7                                  1

8        Government “certainly has a significant interest in

9    keeping its public spaces safe and free of congestion.”

10   Bery v. City of New York, 97 F.3d 689, 697 (2d Cir. 1996);

11   accord Mastrovincenzo v. City of New York, 435 F.3d 78, 100

12   (2d Cir. 2006) (“[R]educing sidewalk and street congestion

13   in a city with eight million inhabitants[] constitute[s] [a]

14   significant governmental interest[] . . . .”) (internal

15   quotation marks omitted).   And “there can be no doubting the

16   substantial government interest in the maintenance of

17   security at political conventions.”   Bl(a)ck Tea Soc’y v.

18   City of Boston, 378 F.3d 8, 12 (1st Cir. 2004).

19       Plaintiffs contend that Defendants adduced insufficient

20   evidence to support these interests and instead relied on

21   unspecific, generic security rationales.

22       The record amply establishes non-security reasons for

23   banning protesters from occupying a crowded sidewalk.    The

24   considerable interests of the “millions of residents,

                                   13
1    visitors, and workers must be balanced” against the interest

2    of protesters.   See Concerned Jewish Youth v. McGuire, 621

3    F.2d 471, 478 (2d Cir. 1980); see also Mastrovincenzo, 435

4    F.3d at 100.   The stretch of Seventh Avenue in front of the

5    Garden is a crowded thoroughfare even without major sports

6    or political events at the Garden, with commuters, shoppers,

7    tourists, residents, and other people passing through.     The

8    freezing of the western sidewalk channeled all those

9    pedestrians to the one side designated a no-demonstration

10   zone.   The City had the requisite significant interest in

11   keeping that channel clear for pedestrians.

12       The government interest in security is also

13   significant.   In the Fourth Amendment context, we have held

14   that “no express threat or special imminence is required

15   before we may accord great weight to the government’s

16   interest in staving off considerable harm.”   MacWade v.

17   Kelly, 460 F.3d 260, 272 (2d Cir. 2006).   “All that is

18   required is that the ‘risk to public safety [be] substantial

19   and real’ instead of merely ‘symbolic.’”   Id. (brackets in

20   original) (quoting Chandler v. Miller, 520 U.S. 305, 322-23

21   (1997)).   These principles also apply in the First Amendment

22   context.   Because “security protocols exist to deal with

23   hypothetical risks”--and “security planning

24   is necessarily concerned with managing potential risks,

                                   14
1    which sometimes necessitates consideration of the worst-case

2    scenario”--it is “appropriate” for governments to consider

3    possible security threats and the role that protesters may

4    play in causing such threats or inadvertently preventing the

5    authorities from thwarting or responding to such threats.

6    Citizens for Peace in Space v. City of Colo. Springs, 477

7    F.3d 1212, 1223-24 (10th Cir. 2007).    “As long as a designed

8    security protocol reduces a plausible and substantial safety

9    risk, it directly and effectively advances a substantial

10   government interest.”    Id. at 1224; see also Bl(a)ck Tea

11   Soc’y, 378 F.3d at 13 (“[T]he government’s judgment as to

12   the best means for achieving its legitimate objectives

13   deserves considerable respect.” (citing Ward, 491 U.S. at

14   798-99)).

15       The police had to design measures to cope with a

16   security challenge that was altogether extraordinary.    The

17   Convention was in the middle of New York City, adjacent to

18   Penn Station.    Fifty thousand attendees were expected for

19   the Convention itself.   Protesters of different persuasions

20   would descend.   Vehicle and pedestrian traffic would be re-

21   routed along two main arteries.     The national conventions

22   that year were the first following the 2001 terror attacks.

23   The President was coming, as well as the Vice President and

24   a host of other government officials.    These facts, taken

                                    15
1    together, bespeak a significant--indeed, compelling--

2    government interest in security.

3

4                                   2

5        The Government must also show that its policy was

6    “narrowly tailored” to achieve that significant government

7    interest.    Ward, 491 U.S. at 791.

8        A regulation is narrowly tailored “‘so long as [it]

9    . . . promotes a substantial government interest that would

10   be achieved less effectively absent the regulation,’” and is

11   “not substantially broader than necessary to achieve the

12   government’s interest.”   Id. at 799-800 (quoting United

13   States v. Albertini, 472 U.S. 675, 689 (1985)); accord

14   Deegan, 444 F.3d at 143 (“The ‘narrowly tailored’ standard

15   does not tolerate a time, place, or manner regulation that

16   may burden substantially more speech than necessary to

17   achieve its goal . . . .”).

18       The no-demonstration zone was narrowly tailored to

19   achieve significant government interests.   The restricted

20   zones were confined to a two-block stretch of Seventh Avenue

21   and were in place only during the four days of the

22   Convention.   And the policy was tailored to meet the

23   congestion and security challenges that the Convention

24   presented.    The frozen zone was limited to the sidewalk

                                    16
1    immediately in front of a single side of the Garden.    The

2    no-demonstration zone was limited to the opposite sidewalk,

3    which had to be kept unobstructed to accommodate the heavy

4    pedestrian traffic that usually occupies both sides.    These

5    facts therefore distinguish this case from United States v.

6    Grace, 461 U.S. 171 (1983), and Lederman v. United States,

7    291 F.3d 36 (D.C. Cir. 2002), which both considered year-

8    round prohibitions on sidewalk demonstrations in places

9    without the dense crowds of protesters and pedestrians that

10   beset the holding of the Republican National Convention in

11   the middle of Manhattan.

12       Plaintiffs argue that the no-demonstration zone was not

13   narrowly tailored because protesters were barred even from

14   forms of expression that did not increase congestion, such

15   as carrying a sign while keeping up with the flow, or

16   standing to one side.   It may be, as Plaintiffs suggest,

17   that a no-standing zone or no-large-sign zone would have

18   been a less restrictive alternative, but “narrowly tailored”

19   does not mean the “least restrictive or least intrusive

20   means.”   Ward, 491 U.S. at 798.   “[R]estrictions on the

21   time, place, or manner of protected speech are not invalid

22   ‘simply because there is some imaginable alternative that

23   might be less burdensome on speech.’”   Id. at 797 (quoting

24   Albertini, 472 U.S. at 689); accord id. at 800 (“[T]he

                                   17
1    regulation will not be invalid simply because a court

2    concludes that the government’s interest could be adequately

3    served by some less-speech-restrictive alternative.”).    A

4    regulation is narrowly tailored “so long as [it]

5    . . . promotes a substantial government interest that would

6    be achieved less effectively absent the regulation” and is

7    “not substantially broader than necessary.”   Id. at 799-800

8    (internal quotation marks omitted).

9        The no-demonstration zone does not burden substantially

10   more speech than necessary, even if alternatives are

11   conceivable.   Even if protesters kept walking, they would

12   occlude pedestrian passage, especially when they picketed

13   back and forth.   Policing a less than clear-cut regulation

14   also would risk the fact or appearance of selective

15   enforcement based on content, and would result in the

16   “substantial, additional burdens of . . . maintaining

17   supervision of the protestors . . . and generally providing

18   enough manpower in close proximity to the protestors to

19   quickly handle any protest that turned violent.”   Citizens

20   for Peace in Space, 477 F.3d at 1223.

21       Plaintiffs argue that the no-demonstration zone was not

22   narrowly tailored because it was a complete ban on

23   demonstrating.    But “[a] complete ban can be narrowly

24   tailored” if, as Defendants have shown, “each activity

                                    18
1    within the proscription’s scope is an appropriately targeted

2    evil.”   Frisby, 487 U.S. at 485.

3        Finally, Plaintiffs contend that justifications based

4    on security and congestion are premised on large numbers of

5    protesters whereas Plaintiffs are just two people standing

6    out of the way.    We disagree.        The policy “should not be

7    measured by the disorder that would result from granting an

8    exemption solely to [Plaintiffs]” because if these two

9    plaintiffs were allowed a dispensation, “so too must other

10   groups,” which would then create “a much larger threat to

11   the State’s interest in crowd control” and security.         See

12   Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S.

13   672, 685 (1992).   Plaintiffs’ approach would also vest line-

14   level officers with power and discretion to determine when

15   the number of protesters exceeds some unspecified

16   permissible number, whether to aggregate small groups of

17   protesters who may not agree, and to decide which group came

18   first and should be allowed to stay while others must leave.

19       In short, the NYPD’s small no-demonstration zone on a

20   two-block strip of Seventh Avenue was narrowly tailored to

21   address the threats to sidewalk congestion and security

22   created by an event the size and spectacle of a national

23   convention in midtown Manhattan.

24

                                       19
1                                   B

2           It remains to decide whether the regulation “leave[s]

3    open ample alternative channels for communication of the

4    information.”    Ward, 491 U.S. at 791 (internal quotation

5    mark omitted).

6           Although an alternative channel for communication must

7    be available, it is clear that “[t]he First Amendment

8    . . . does not guarantee [protesters] access to every or

9    even the best channels or locations for their expression.”

10   Carew-Reid v. Metro. Transp. Auth., 903 F.2d 914, 919 (2d

11   Cir. 1990).    “The requirement that ‘ample alternative

12   channels’ exist does not imply that alternative channels

13   must be perfect substitutes for those channels denied to

14   plaintiffs by the regulation at hand; indeed, were we to

15   interpret the requirement in this way, no alternative

16   channels could ever be deemed ‘ample.’”    Mastrovincenzo, 435

17   F.3d at 101; see also Irish Lesbian & Gay Org. v. Giuliani,

18   918 F. Supp. 732, 744 (S.D.N.Y. 1996) (“Whether ample

19   alternatives are available does not depend on the preference

20   of the speaker for one method or another.”).    All that is

21   required is that an alternative channel be ample--i.e., an

22   “adequate” channel for communication.    Deegan, 444 F.3d at

23   144.

24

                                    20
1        The alternative channel for communication available for

2    demonstrations at the Convention was a demonstration zone

3    spanning the width of Eighth Avenue, starting at the

4    southwest corner of the Garden, one avenue from the primary

5    entrance to the Garden.   The zone was equipped with a stage

6    and sound amplification equipment, which all the protesters

7    (including Plaintiffs) were free to use.

8        In this Circuit, an alternative channel is adequate and

9    therefore ample if it is within “close proximity” to the

10   intended audience.   United for Peace & Justice, 323 F.3d at

11   177; see Concerned Jewish Youth, 621 F.2d at 472-74, 476-77.

12   In United for Peace & Justice, the city denied a permit to

13   march past the United Nations headquarters and instead

14   granted a permit for a stationary protest at a nearby park--

15   on the other side of a major avenue, and two blocks north of

16   the entrance to the United Nations.   323 F.3d at 177; see

17   also United for Peace & Justice v. City of New York, 243 F.

18   Supp. 2d 19, 21, 29 (S.D.N.Y. 2003), aff’d 323 F.3d 175 (2d

19   Cir. 2003).   Because the protesters were permitted to

20   demonstrate in “close proximity to the United Nations,” the

21   restriction on their march comported with the First

22   Amendment.    United for Peace & Justice, 323 F.3d at 177; see

23   also Concerned Jewish Youth, 621 F.2d at 472-74, 476-77

24   (upholding a restriction that prevented protesters from

                                    21
1    marching in front of the Russian Mission and instead

2    permitted twelve of them to protest in a small area down the

3    street because it provided an ample alternative channel for

4    communication).

5        Plaintiffs’ chief argument on appeal is that the

6    demonstration zone was inadequate because it was not within

7    “sight and sound” of the intended audience, which they

8    identify as the delegates.   Although this may be a relevant

9    consideration in some instances, none of the cases cited by

10   Plaintiffs establishes “sight and sound” as a constitutional

11   requirement.   In each, the protester was within sight and

12   sound of the intended audience, so there was no occasion to

13   say whether sight and sound proximity is a required feature

14   of an adequate alternative channel.   See, e.g., Marcavage v.

15   City of Chicago, 659 F.3d 626, 631 (7th Cir. 2011), Citizens

16   for Peace in Space, 477 F.3d at 1226; Menotti v. City of

17   Seattle, 409 F.3d 1113, 1138 (9th Cir. 2005); Bl(a)ck Tea

18   Soc’y, 378 F.3d at 14.   Accordingly, none could support a

19   holding that sight and sound access is constitutionally

20   compelled.2

         2
           In Bay Area Peace Navy v. United States, 914 F.2d
     1224 (9th Cir. 1990), the protesters were not within sight
     and sound of the intended audience. This case is not
     persuasive. It is a split decision from another circuit in
     which the majority held that the speech restriction was not
     narrowly tailored, so the discussion of “ample alternative
     channels” was therefore dictum.
                                   22
1          Plaintiffs argue that they should have been able to

2    protest at 32nd Street and Seventh Avenue--the primary point

3    of ingress and egress to Penn Station and the Garden.    Many,

4    if not all, of the delegates may have entered that way.      But

5    there are many ways to arrive at the Garden (car, bus,

6    train, foot), and there are different lines of approach

7    along the City’s grid.3   Many delegates may have traveled to

8    the Garden by a route that brought them close to the

9    demonstration zone along Eighth Avenue.   In short,

10   Plaintiffs could not have been seen and heard by most of the

11   delegates--let alone all of them--unless demonstrators were

12   allowed to congregate at the main entrance or were admitted

13   to the innards of the Garden, where they had no

14   constitutional right to be, Bl(a)ck Tea Soc’y, 378 F.3d at

15   14.

16         Whether an alternative channel is adequate cannot be

17   determined “in an objective vacuum, but instead” requires

18   “practical recognition [of] the facts.”   Citizens for Peace

           3
           Plaintiffs contend that the entrance to the Garden at
     32nd Street near Seventh Avenue was the only open entrance.
     This argument is an overreading of the undisputed evidence:
     “Because of the various closures to ingress and egress to
     and from Penn Station and [the Garden], . . . the 32nd
     Street approach to Penn Station and [the Garden] became the
     primary point of ingress and egress to that venue for
     thousands of pedestrians and commuters.” Joint App’x 87
     (Decl. of (Retired) NYPD Chief Bruce Smokla, § 16) (emphasis
     added). Implicit in the designation of one entrance as
     “primary” is that there are one or more others.
                                   23
1    in Space, 477 F.3d at 1226 (internal quotation marks

2    omitted).    Here, the manifold risks ranged from pedestrian

3    gridlock to assassination.   Under such circumstances, a

4    demonstration zone one avenue from the primary entrance to

5    the Garden was an ample alternative channel for protesters,

6    such as Plaintiffs.

7                                 * * *

8        Because the NYPD’s limitation on speech around the

9    Convention was content neutral, was narrowly tailored to

10   achieve a substantial government interest, and allowed an

11   ample alternative channel of communication, it was a

12   permissible time, place, and manner restriction on speech.

13   Accordingly, the district court correctly dismissed

14   Plaintiffs’ First Amendment claim.

15

16                                 III

17       Both Plaintiffs were arrested for disorderly conduct,

18   and Marcavage was also arrested for resisting arrest.

19   Plaintiffs contend that their arrest violated the Fourth

20   Amendment.   Defendants counter that probable cause existed.

21       Plaintiffs were arrested without a warrant.    Such an

22   arrest comports with the Fourth Amendment if the officer has

23   “probable cause to believe that a criminal offense has been

24   or is being committed.”   Devenpeck v. Alford, 543 U.S. 146,

                                    24
1    152 (2004).   “Probable cause exists where the facts and

2    circumstances within . . . the officers’ knowledge and of

3    which they had reasonably trustworthy information are

4    sufficient in themselves to warrant a man of reasonable

5    caution in the belief that an offense has been or is being

6    committed by the person to be arrested.”   Dunaway v. New

7    York, 442 U.S. 200, 208 n.9 (1979) (internal quotation marks

8    and brackets omitted).   A court assessing probable cause

9    must “examine the events leading up to the arrest, and then

10   decide whether these historical facts, viewed from the

11   standpoint of an objectively reasonable police officer,

12   amount to probable cause.”   Maryland v. Pringle, 540 U.S.

13   366, 371 (2003) (internal quotation marks omitted).

14       Defendants contend there was probable cause to arrest

15   Plaintiffs for disorderly conduct,4 obstruction of

16   governmental administration (under New York Penal Law

17   § 195.055 and New York City Charter § 435(a)6), and failure

          4
              A person is guilty of disorderly conduct when,
              with intent to cause public inconvenience,
              annoyance or alarm, or recklessly creating a risk
              thereof: . . . (5) He obstructs vehicular or
              pedestrian traffic; or (6) He congregates with
              other persons in a public place and refuses to
              comply with a lawful order of the police to
              disperse . . . .
     N.Y. Penal Law § 240.20(5)-(6) (McKinney 2010).
          5
              A person is guilty of obstructing governmental
              administration when he intentionally obstructs,
              impairs or perverts the administration of law or
                                   25
1    to comply with lawful orders to disperse.   A Fourth

2    Amendment claim turns on whether probable cause existed to

3    arrest for any crime, not whether probable cause existed

4    with respect to each individual charge.   See Devenpeck, 543

5    U.S. at 153-56.   Accordingly, Defendants prevail if there

6    was probable cause to arrest Plaintiffs for any single

7    offense.   See Jaegly v. Couch, 439 F.3d 149, 154 (2d Cir.

8    2006).

9        Probable cause supported the arrests for obstruction of

10   governmental administration.   Plaintiffs rejected 17

11   directives (by three officers) to leave the no-demonstration



              other governmental function or prevents or
              attempts to prevent a public servant from
              performing an official function, by means of
              intimidation, physical force or interference, or
              by means of any independently unlawful act . . . .
     N.Y. Penal Law § 195.05 (McKinney 2010).
          6
              The police department . . . shall have the power
              and it shall be their duty to preserve the public
              peace, prevent crime, detect and arrest offenders,
              suppress riots, mobs and insurrections, disperse
              unlawful or dangerous assemblages and assemblages
              which obstruct the free passage of public streets,
              sidewalks, parks and places; . . . regulate,
              direct, control and restrict the movement of
              vehicular and pedestrian traffic for the
              facilitation of traffic and the convenience of the
              public as well as the proper protection of human
              life and health; remove all nuisances in the
              public streets, parks and places; . . . and for
              these purposes to arrest all persons guilty of
              violating any law or ordinance for the suppression
              or punishment of crimes or offenses.
     N.Y.C. Charter § 435(a).
                                    26
1    zone, insisting on a constitutional right to demonstrate

2    where they stood.   We need not decide whether Plaintiffs had

3    to obey an unconstitutional order, because we have held that

4    the order was constitutional.

5        Plaintiffs argue that there are genuine disputes as to

6    what occurred during their interaction with the officers

7    such that probable cause cannot be established on the

8    undisputed factual record.   For example, Plaintiffs

9    characterize their behavior toward the officers as cordial,

10   and contend that they were compliant because they gravitated

11   in the general direction of the demonstration zone.    But

12   Plaintiffs made an audio recording of their interaction with

13   the officers, and that recording dooms their assertion.

14   Although on summary judgment the evidence must be viewed in

15   the light most favorable to Plaintiffs as the non-moving

16   parties, when there is reliable objective evidence--such as

17   a recording--the evidence may speak for itself.   See Scott

18   v. Harris, 550 U.S. 372, 378-81 (2007).   Here, even viewed

19   in the light most favorable to Plaintiffs, the audio

20   recording shows indisputably that they were neither

21   courteous nor compliant.   Plaintiffs were hostile and non-

22   compliant; in effect, they courted arrest.   The officers

23   could have perceived that Plaintiffs were obstructing

24   governmental administration and failing to comply with a

                                     27
1   police order to disperse.    Since the police therefore had

2   probable cause to arrest, Plaintiffs’ Fourth Amendment claim

3   was correctly dismissed.7

4                               CONCLUSION

5       Plaintiffs’ motion, dkt. 31, to file a non-conforming

6   appendix is granted.   The judgment of the district court is

7   affirmed.




         7
          Captain Staples also argues that he is entitled to
    qualified immunity. Because we conclude there was probable
    cause for Plaintiffs’ arrest, a fortiori he would be
    entitled to qualified immunity on this claim. See Escalera
    v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004) (holding that an
    officer is entitled to qualified immunity so long as it was
    not obvious that there was no probable cause).
                                    28
