     12-2638-cv
     Marcavage v. Syracuse Police Dep’t

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 20th day of March, two thousand thirteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8
 9                    JOSÉ A. CABRANES,
10                    RICHARD C. WESLEY,
11                                  Circuit Judges.
12
13       - - - - - - - - - - - - - - - - - - - -X
14       MICHAEL MARCAVAGE and MICHAEL
15       STOCKWELL,
16                Plaintiffs-Appellants,
17
18                    -v.-                                               12-2638-cv
19
20       SYRACUSE POLICE DEPARTMENT, FRANK
21       FOWLER, Chief of Police, in his
22       official and individual capacities,
23       JOSEPH CECILE, Deputy Chief of Police,
24       in his official and individual
25       capacities, RICHARD SHOFF, Lieutenant,
26       in his official and individual
27       capacities, MICHAEL LONG, Sergeant, in
28       his official and individual

                                                  1
 1   capacities, PAUL KLUGE, Officer, in
 2   his official and individual
 3   capacities, JOHN DOE, Unidentified
 4   Officer of the Syracuse Police
 5   Department, in his official and
 6   individual capacities, JAMES DOE,
 7   Unidentified Officer of the Syracuse
 8   Police Department, in his official and
 9   individual capacities, CITY OF
10   SYRACUSE, NEW YORK,
11            Defendants-Appellees.1
12   - - - - - - - - - - - - - - - - - - - -X
13
14   FOR APPELLANTS:            JAMES P. TRAINOR, Cutler,
15                              Trainor & Cutler LLP, Malta, NY.
16
17   FOR APPELLEES:             JOSEPH R. H. DOYLE, Assistant
18                              Corporation Counsel for Mary
19                              Anne Doherty, Corporation
20                              Counsel, Syracuse, NY.
21
22        Appeal from a judgment of the United States District
23   Court for the Northern District of New York (Kahn, J.).
24
25        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
26   AND DECREED that the judgment of the district court be
27   AFFIRMED.
28
29        Michael Marcavage and Michael Stockwell appeal from the
30   denial of their motion for a preliminary injunction barring
31   the enforcement of a Syracuse noise ordinance (the
32   “Ordinance”), issued by the United States District Court for
33   the Northern District of New York (Kahn, J.). We assume the
34   parties’ familiarity with the underlying facts, the
35   procedural history, and the issues presented for review.
36
37        In order to obtain a preliminary injunction, “a moving
38   party must demonstrate that (1) he is likely to succeed on
39   the merits of the underlying claim, (2) he will suffer
40   irreparable harm absent injunctive relief, and (3) the
41   public interest weighs in favor of granting the injunction.”


         1
            The Clerk of Court is directed to amend the caption
     of this case to conform to the listing of the parties shown
     above.
                                  2
 1   Pope v. County of Albany, 687 F.3d 565, 570 (2d Cir. 2012).
 2   “We review the denial of a preliminary injunction motion
 3   deferentially for abuse of discretion, which we will
 4   identify only when the district court decision rests on an
 5   error of law or a clearly erroneous finding of fact.” Id.
 6   at 570-71.
 7
 8        “[T]he right to use public forums such as streets for
 9   speech and assembly is not absolute.” United for Peace &
10   Justice v. City of New York, 323 F.3d 175, 176 (2d Cir.
11   2003) (per curiam). Public speech “is subject to reasonable
12   time, place, or manner restrictions,” which are “valid
13   provided that they are justified without reference to the
14   content of the regulated speech, that they are narrowly
15   tailored to serve a significant governmental interest, and
16   that they leave open ample alternative channels for
17   communication of the information.” Clark v. Cmty. for
18   Creative Non-Violence, 468 U.S. 288, 293 (1984). The
19   district court did not abuse its discretion in holding that
20   Marcavage and Stockwell failed to prove likely success on
21   their claim that the noise ordinance was unconstitutional,
22   either on its face or as applied.
23
24        Marcavage and Stockwell argue that the Ordinance is
25   unconstitutional on its face because of overbreadth and
26   vagueness. However, facial challenges are disfavored, and
27   the Ordinance must be upheld so long as it has a “‘plainly
28   legitimate sweep.’” Washington State Grange v. Washington
29   State Republican Party, 552 U.S. 442, 449-51 (2008) (quoting
30   Washington v. Glucksberg, 521 U.S. 702, 739-740 (1997)
31   (Stevens, J., concurring)). We have upheld the
32   constitutionality of similar noise ordinances that turn on a
33   reasonable person’s perception of unnecessary noise in the
34   past. See, e.g., Howard Opera House Assocs. v. Urban
35   Outfitters, Inc., 322 F.3d 125, 128 (2d Cir. 2003)
36   (Burlington ordinance prohibiting “loud or unreasonable
37   noise” is not vague and “passes constitutional muster”).
38   There is no ground for treating this Ordinance differently,
39   especially in response to a facial challenge.
40
41        Marcavage and Stockwell assert that a preliminary
42   injunction is necessary because of the manner in which the
43   Ordinance is (and was) applied. However, the only apparent
44   problem in the application of the Ordinance stemmed from a
45   single officer who made statements that were inconsistent
46   with the plain text of the Ordinance, and who was
47   consequently relieved from his role in enforcing the

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 1   Ordinance. Therefore, this is not a case like Elrod v.
 2   Burns, 427 U.S. 347, 373-74 (1976), where there was a
 3   “threatened and occurring” loss of First Amendment freedoms.
 4   There is here no realistic threat of a “present and ongoing
 5   injury.” Buckingham Corp. v. Karp, 762 F.2d 257, 262 (2d
 6   Cir. 1985). The district court did not abuse its discretion
 7   in finding that Syracuse is not “continuing to tread on
 8   Plaintiffs’ constitutional rights in [its] current
 9   application of the Ordinance[].” Marcavage v. Syracuse
10   Police Dep’t, No. 5:12-CV-00761 (LEK/DEP), at *11 (N.D.N.Y.
11   June 6, 2012). Preliminary injunctive relief is therefore
12   inappropriate.
13
14        For the foregoing reasons, and finding no merit in
15   Marcavage and Stockwell’s other arguments, we hereby AFFIRM
16   the judgment of the district court.
17
18                              FOR THE COURT:
19                              CATHERINE O’HAGAN WOLFE, CLERK
20




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