December 2021 - Parks & Recreation - 29

At
approximately
1:35
p.m.,
members of the New York City
Police Department (NYPD) assembled
outside the park. After
standing outside the park for several
minutes, the police formed
a line that blocked off one of the
entrances to the park. Once inside,
the police officers played an audio
recording over a loudspeaker, stating:
" This is the New York City
Police Department. Non-essential
gatherings of any kind have been
prohibited by the Governor and the
Mayor. This gathering is unlawful,
and you are ordered to disperse. If
you fail to disperse immediately,
you are subject to arrest. "
After playing the recording for
five minutes, police officers approached
Plaintiffs and the other
protestors. Plaintiff Katzburg
was ordered to leave the park.
Katzburg objected, stating the
park was open to the public and
that he was exercising his First
Amendment right to freedom of
assembly. NYPD officers then
arrested Katzburg. Police officers
continued to escort other protesters
out of the park. As Plaintiff
Butler walked away from the park,
he also was arrested. In total, nine
protestors, including Plaintiffs,
were arrested. Plaintiffs were released
from custody later that day,
each with a criminal summons.
The Mayor extended the ban
on all non-essential
gatherings
twice more. On May 24, 2020, the
ban was modified to permit nonessential
gatherings
of
10
or
fewer individuals, as long as those
individuals adhered to applicable
physical distancing and cleaning
protocols. The capacity limits
were incrementally increased until
June 15, 2021, when all capacity
restrictions
in
response
to
the
COVID-19 pandemic were lifted.
Although New York subsequently
entered a fourth surge, in large part
due to the Delta variant, no capacity
restrictions were reinstated.
Surviving a Motion
to Dismiss
In their lawsuit, Plaintiffs alleged
enforcement of the executive order
" violated their First Amendment
rights to freedom of speech, freedom
of assembly, and right to petition
the government for redress of
grievances. " The City filed a motion
to dismiss Plaintiffs' lawsuit.
As noted by the federal district
court, to survive the City's motion
to
dismiss,
the
complaint
in
Plaintiffs' lawsuit had to " contain
sufficient factual matter, accepted
as true, to state a claim to relief that
is plausible on its face. " According
to the court, within the context of
a motion to dismiss: " A claim is
facially plausible when the plaintiff
pleads factual content that allows
the court to draw the reasonable
inference
that
the
defendant
is
liable for the misconduct alleged. "
Further, to survive a motion to
dismiss, the court found: " The
plaintiff must allege sufficient facts
to show more than a sheer possibility
that a defendant has acted
unlawfully. " Accordingly, the
question before the court on the
City's motion to dismiss was " not
whether a plaintiff will ultimately
prevail but whether the claimant is
entitled to offer evidence to support
the claims. "
Public Health Regulation
In the motion to dismiss, the City
contended the
following " deferential
framework " established by
Supreme Court precedent should
control the court's constitutional
analysis in this particular case:
[A] state or local law enacted
to protect the public health will
survive judicial scrutiny unless
it bears no real or substantial relation
to the public health, or is,
beyond all question, a plain, palpable
invasion of rights secured by
the fundamental law.
In their lawsuit, Plaintiffs
alleged enforcement of the
executive order " violated their
First Amendment rights to
freedom of speech, freedom of
assembly, and right to petition
the government for redress of
grievances. "
The federal district court agreed
that this precedent should govern
consideration of Plaintiffs'
First
Amendment claims, providing " a
workable framework that balances
the delicate considerations at play,
i.e., responding to the COVID-19
pandemic and maintaining constitutional
liberties. "
Accordingly, to overcome the
City's motion to dismiss, the federal
district court would require Plaintiffs
to show " EEO 103 bears no
real or substantial relationship to
the public health, or is a plain, palpable
invasion of rights secured by
fundamental law. " In the opinion
of the court, Plaintiffs had failed
to do so. As characterized by the
court, EEO 103 was based on " the
scientific understanding of how the
SARS-CoV-2 virus spreads " :
[A]t the time that Plaintiffs were
arrested, the scientific and medical
PARK S ANDRECRE AT ION . OR G | DECEMBER 2 0 2 1
| Parks & Recreation
29

December 2021 - Parks & Recreation

Table of Contents for the Digital Edition of December 2021 - Parks & Recreation

December 2021 - Parks & Recreation - Intro
December 2021 - Parks & Recreation - Cover1
December 2021 - Parks & Recreation - Cover2
December 2021 - Parks & Recreation - 1
December 2021 - Parks & Recreation - 2
December 2021 - Parks & Recreation - 3
December 2021 - Parks & Recreation - 4
December 2021 - Parks & Recreation - 5
December 2021 - Parks & Recreation - 6
December 2021 - Parks & Recreation - 7
December 2021 - Parks & Recreation - 8
December 2021 - Parks & Recreation - 9
December 2021 - Parks & Recreation - 10
December 2021 - Parks & Recreation - 11
December 2021 - Parks & Recreation - 12
December 2021 - Parks & Recreation - 13
December 2021 - Parks & Recreation - 14
December 2021 - Parks & Recreation - 15
December 2021 - Parks & Recreation - 16
December 2021 - Parks & Recreation - 17
December 2021 - Parks & Recreation - 18
December 2021 - Parks & Recreation - 19
December 2021 - Parks & Recreation - 20
December 2021 - Parks & Recreation - 21
December 2021 - Parks & Recreation - 22
December 2021 - Parks & Recreation - 23
December 2021 - Parks & Recreation - 24
December 2021 - Parks & Recreation - 25
December 2021 - Parks & Recreation - 26
December 2021 - Parks & Recreation - 27
December 2021 - Parks & Recreation - 28
December 2021 - Parks & Recreation - 29
December 2021 - Parks & Recreation - 30
December 2021 - Parks & Recreation - 31
December 2021 - Parks & Recreation - 32
December 2021 - Parks & Recreation - 33
December 2021 - Parks & Recreation - 34
December 2021 - Parks & Recreation - 35
December 2021 - Parks & Recreation - 36
December 2021 - Parks & Recreation - 37
December 2021 - Parks & Recreation - 38
December 2021 - Parks & Recreation - 39
December 2021 - Parks & Recreation - 40
December 2021 - Parks & Recreation - 41
December 2021 - Parks & Recreation - 42
December 2021 - Parks & Recreation - 43
December 2021 - Parks & Recreation - 44
December 2021 - Parks & Recreation - 45
December 2021 - Parks & Recreation - 46
December 2021 - Parks & Recreation - 47
December 2021 - Parks & Recreation - 48
December 2021 - Parks & Recreation - 49
December 2021 - Parks & Recreation - 50
December 2021 - Parks & Recreation - 51
December 2021 - Parks & Recreation - 52
December 2021 - Parks & Recreation - 53
December 2021 - Parks & Recreation - 54
December 2021 - Parks & Recreation - 55
December 2021 - Parks & Recreation - 56
December 2021 - Parks & Recreation - Cover3
December 2021 - Parks & Recreation - Cover4
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/december-2021
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/november-2021
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/october-2021
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/september-2021
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/august-2021
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/july-2021
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/june-2021
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/may-2021
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/april-2021
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/march-2021
https://www.nxtbookmedia.com