1 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE DISTRICT OF MASSACHUSETTS 3 4 5 IN RE: ) C.A. No. 04-11618-NG 6 COMMUNITY ARTS ADVOCATES, INC., ) Courtroom No. 17 7 STEPHEN H. BAIRD ) 1 Courthouse Way 8 vs. Boston, MA 02210 9 CITY OF BOSTON 10 BOSTON POLICE DEPARTMENT 11 12 DECEMBER 22, 2004 13 2:45 p.m. 14 15 16 17 18 BEFORE THE HONORABLE NANCY GERTNER 19 UNITED STATES DISTRICT JUDGE 20 21 22 23 24 Valerie A. O'Hara 25 Official Court Reporter 2 1 A P P E A R A N C E S: 2 Testa, Hurwitz & Thibeault, LLP, by JOHN J. COTTER, ESQ., and JASON A. DUVA, ESQ. and KAREN A. SCHOUTEN, 3 ATTORNEY, 125 High Street, Boston, Massachusetts 02110-2704, for the Plaintiffs; 4 5 THOMAS R. DONOHUE, ESQ., and RONALD G. NELSON, ESQ., Law Department, One City Hall Square, City Hall, Room 615, 6 Boston, Massachusetts 02201, for the Defendants. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 1 THE CLERK: All rise. 2 THE COURT: You can be seated. Counsel, would you 3 introduce yourself to me. 4 MR. COTTER: Good afternoon, your Honor. John 5 Cotter for the Plaintiffs, Community Arts Advocates and 6 Stephen Baird. 7 MR. DUVA: Good afternoon, your Honor. Thomas 8 Duva also for the Plaintiffs. 9 MS. SCOUTEN: Karen Scouten for the Plaintiffs. 10 THE COURT: Ms. Scouten, are you doing the arguing? 11 MS. SCOUTEN: Not today. 12 THE COURT: But soon. 13 MR. DONOHUE: Good afternoon, Tom Donohue, City of 14 Boston. 15 MR. NELSON: Good afternoon, Ronald Nelson for the 16 City of Boston. 17 THE COURT: Will you be arguing for the city? 18 MR. DONOHUE: I will. 19 THE COURT: Mr. Cotter. 20 MR. COTTER: Yes, your Honor. 21 THE COURT: Half the papers are on Rule 75 and 22 half of the papers are on Rule 403 is the regime, right, 23 that's the one? 24 MR. COTTER: 403 replaced 75. 25 THE COURT: Right. 4 1 MR. COTTER: The progression is 75 has been around 2 for decades in various forms. That's what we filed our 3 original complaint on or part of our complaint and our 4 preliminary injunction motion. After we filed the 5 preliminary injunction motion, 403 was added and 75 was 6 rescinded, so we addressed in our reply 403. 7 THE COURT: Right. Now, so that's what my focus 8 should be, and 403 is certainly materially better than 75 9 because it's much less restrictive. 75 says you may not 10 play music within 300 feet of this building and on these 11 roads, et cetera, so 403 is clearly better in terms of 12 place. 13 It says simply that it's all parts of the city 14 except those designated as a business section. Of course, 15 business section however is then not defined. Is that just 16 a goof? 17 MR. DONOHUE: Your Honor, If I might, 403 itself 18 is not being enforced right now, and the city concedes there 19 are problems with it. We'll agree in principle with the 20 Plaintiffs on this matter. The city in fact requested a 21 mediation with Judge Bowler. That's going to take place on 22 January 25th. 23 THE COURT: Wait. 403 is not being enforced? 24 MR. DONOHUE: It's not being enforced right now. 25 THE COURT: There are no restrictions now? 5 1 MR. DONOHUE: That's what I'm told. That's the 2 understanding of the state of law. 3 THE COURT: If that's so, what am I enjoining? 4 MR. COTTER: First of all, that is news to me. 5 THE COURT: But it's good news. 6 MR. COTTER: It's good news, it's a step in the 7 right direction, there's no doubt. I'm not going to concede 8 that is enough of a step in the right direction because you 9 got to remember we heard back in the spring or approximately 10 June that 75 had been rescinded. 11 THE COURT: No, that only suggests you did a 12 fabulous public service by bringing this case. You focused 13 on the constitutional law, they fled from 75 to a more 14 narrow 403, there are problems with 403, and now they're 15 saying why don't I wait until the mediation. Well, why 16 don't we do two things, wait for the mediation and a 17 clarification of this rule, and if, in fact, the absence of 18 a rule leads to the unconstitutional enforcement, you keep a 19 running affidavit and you come into court next week with an 20 unconstitutional enforcement of nonexistent policies. 21 MR. COTTER: I don't think that takes care of the 22 problem, Judge Gertner, and there's a couple of issues. One 23 is we still have the ordinance there, so I understand you're 24 talking about enforcement, you're working that into it, but 25 we've had violations based on enforcement of we don't know 6 1 what ordinance or what regulation, what rule in the past. 2 But that's clear from the declaration of Stephen Baird and 3 from Roseanna Lee Cohen, and that's uncontroverted. 4 No one disputes that those violations took place. 5 Those are violations of the first amendment and, therefore, 6 presumptively create irreparable harm and the need for 7 preliminary injunction. Put aside what ordinance rule, part 8 rule. 9 THE COURT: But that would then be, that would 10 result in an injunction that says don't enforce it 11 inconsistent with the First Amendment. In other words, if 12 you're talking about injunction, you're not talking about 13 damages? 14 MR. COTTER: Right. 15 THE COURT: So don't do this again is what we 16 would be saying to the Defendants. Don't enforce it in a 17 way that is inconsistent with the First Amendment. Why 18 aren't we talking about between now and January, the date 19 was the 25th, a consent order that both sides would enter 20 into that would say no enforcement of Rule 403 until, 1, the 21 issue of business section or whatever is resolved and, 2, 22 mediation has taken place. No enforcement. 23 MR. COTTER: Okay. A consent order to that 24 effect? 25 THE COURT: Right. 7 1 MR. COTTER: That's great. Still have the park 2 rule which was brought up in the opposition for the first 3 time which restricts solicitation. 4 THE COURT: Right, and alms. 5 MR. COTTER: Alms, right. It's a new word to 6 me. 7 THE COURT: This is unenforced either, but that's 8 another question. 9 MR. COTTER: And a requirement for written permit 10 in Section 6. There's no way to my knowledge to get such a 11 written permit. 12 THE COURT: Counsel, I'm just looking for your 13 name now, counsel, Mr. Donohue? 14 MR. DONOHUE: Yes, your Honor. 15 THE COURT: What's the status of park rule, of the 16 park rule? 17 MR. DONOHUE: Your Honor, I can't answer that 18 question. It's my understanding in front of the court today 19 it's just a narrow issue of Boston Police Rule 75 which has 20 been voluntarily rescinded by the city and Rule 403 which 21 was brought up in the reply and the bells and noise making 22 ordinances. The city agrees with your solution of how to 23 handle this going forward. 24 THE COURT: The only problem is the park rules are 25 implied within Rule 403 because it says, it talks about 8 1 licenses pursuant to law, and it talks about the enforcement 2 of the rule in conformity with the laws of the Commonwealth, 3 the ordinance and the regulations of the city, so that 4 presumably would bring up within it the park rule, Section 6 5 which says no commercial enterprise without a written permit 6 and no begging or canvassing for alms in a public park. 7 Now, again one possibility here to just -- it 8 sounds like we need a period of time to flush out what the 9 situation is, not going past. You're asking for an 10 injunction going forward, so I need to understand what the 11 going forward looks like. 12 Can we add to the consent decree the agreement not 13 to enforce it as against musicians until again the issue of 14 its scope can be resolved and until the mediation? 15 MR. DONOHUE: Regarding the parks rule, I would 16 have to discuss that with my client, your Honor. 17 THE COURT: Okay. Your client isn't in court 18 today? 19 MR. DONOHUE: My client is not in court today, 20 your Honor. I don't think it would be a problem in 21 principle, but I just don't have the authority to make that 22 decision. 23 THE COURT: Every year something wreaks havoc with 24 Christmas, I just want to tell you, and this year this case 25 may be it because I'll be here tomorrow if you want to come 9 1 back tomorrow. It's the advantage of being Jewish in this 2 season, I might add. 3 MR. COTTER: Tomorrow afternoon, yes, tomorrow I 4 have an immigration trial. This is pro bono week, your 5 Honor. 6 THE COURT: Let's do this: You're talking about 7 only a consent decree that would cover you for a month or 8 month and a half, so this issue can be sorted out, you 9 wouldn't have to come back tomorrow, you can continue your 10 Christmas shopping. If you have a consent decree both with 11 the consent decree and the park rule, as it applies to the 12 groups that are represented here, which would not just be 13 the Plaintiffs here but musicians that otherwise fit under 14 the rule. 15 If it covers that in the interim, that doesn't 16 mean you may not have an injunction at the end of January. 17 It only means until this is sorted out. It doesn't make 18 sense to issue anything. So if you can do this in writing, 19 are you both on electronic filing? Everybody is on 20 electronic filing? 21 MR. DONOHUE: Yes, your Honor. 22 MR. COTTER: Yes. 23 THE COURT: You can file. If I see it on my 24 screen by noon tomorrow, tomorrow can we have a hearing at 25 two o'clock? We'll do it at two o'clock. We will not have 10 1 a hearing if by noon tomorrow I get this notation on my 2 screen that there is a consent decree along the lines I've 3 described. 4 MR. COTTER: I have to clear up, I think, one 5 thing, two things. We've got to cover not just musicians, 6 you've got to cover performance artists, artists who display 7 visual works. It's got to allow all those people to not 8 only perform and display their art, to solicit for it, to 9 make sure that's clear, the display of the art or their CDs 10 that whatever they have is a First Amendment protected 11 right. 12 THE COURT: If we said the reverse, if you said 13 that the park rule may not be enforced against, and you 14 listed the group that you did, Park Rule 1 and 6 may not be 15 enforced against, and you listed the categories, that would 16 do it as opposed to? 17 MR. COTTER: As Park Rule. 18 THE COURT: As opposed to an affirmative statement 19 what they may or may not, this may not be enforced. It 20 doesn't sound like for all intents and purposes to be 21 enforced, besides it's going to be really cold. 22 MR. COTTER: First Night is coming and holiday 23 cheer is in the air for some. We have the ordinance. The 24 ordinance can't be enforced in any way during this time 25 period. 11 1 THE COURT: The city has already said that because 2 I think they recognize there are issues that they have to 3 resolve. 4 MR. COTTER: Right. If the situation is we do not 5 have the ordinance, we have Rule 403, we no longer have 6 Rule 75, we're told and if we have a violation, we come back 7 and we see you in that interim period, and if a ranger or a 8 municipal police officer says to any one of the artists or 9 musicians, move along, we're going to bring that up with the 10 court. 11 THE COURT: You'll have a consent decree which 12 will be an interim order from now until the end of 13 January. 14 MR. COTTER: Understood. 15 THE COURT: With respect to the interim order, you 16 can have people have that, hold onto that, show it so that 17 we don't have to keep on coming back to court because you 18 can say this is an interim order. You then have two 19 alternates. If there's a violation order, I'm here. 20 Two, or alternatively, you can have a running 21 affidavit because part of your application here, which was 22 very difficult to deal with on a preliminary injunction 23 basis, is the argument that this is unconstitutional as 24 applied. One or two incidents do not necessarily entitle 25 you to a preliminary injunction going forward that is 12 1 unconstitutional as applied. So with respect to the 2 application to any of this, I would need more data than what 3 you've given me, something to suggest that this is a regular 4 matter, et cetera. 5 Now, as I said, we're dealing with an interim 6 situation here, so I'm not sure we have to go that far. I'd 7 rather keep the status quo of no enforcement until the city 8 can, the city and the Plaintiff can determine what a 9 reasonable rule would look like. 10 MR. COTTER: Just I agree with your Honor. One 11 point is this does have a chilling effect. I assume we 12 would be allowed to attempt to prove that based on even one 13 incident if that were sufficient for your Honor. 14 THE COURT: Yes, but in the pecking order of 15 arguments, your facial challenges are much more likely to 16 get you a preliminary injunction than the applied kind of 17 challenge only because it is difficult to understand how 18 regular, often, et cetera. 19 If the city had come in and said we're not in the 20 business area, that would have been an easy vagueness 21 argument, not a serious problem. So I'm just saying that 22 that's the stronger argument as opposed to the as applied, 23 so I'll hear the as applied as well. If you want to sit 24 back, and you can use our palatial conference room in the 25 back. Good point. Maryellen, give me a conference date. 13 1 Do it like the 27th, January 27th? 2 THE CLERK: Three o'clock; January 27th at three 3 o'clock. 4 THE COURT: Likewise, you have a hearing tomorrow 5 at two unless you've come to an agreement on a consent 6 decree. 7 MR. COTTER: Thank you. 8 THE COURT: Thank you. 9 C E R T I F I C A T E 10 UNITED STATES DISTRICT COURT ) 11 DISTRICT OF MASSACHUSETTS ) 12 CITY OF BOSTON ) 13 I, Valerie A. O'Hara, Registered Professional 14 Reporter, do hereby certify that the foregoing transcript 15 was recorded by me stenographically at the time and place 16 aforesaid in No. 04-11618-NG, In Re: Community Arts 17 Advocates, Inc., Stephen H. Baird vs. City of Boston, Boston 18 Police Department and thereafter by me reduced to 19 typewriting and is a true and accurate record of the 20 proceedings. 21 In witness whereof, I have hereunto set my hand 22 this ________ day of ___________________, 2005. 23 _________________________ 24 VALERIE A. O'HARA 25 REGISTERED PROFESSIONAL REPORTER