Picard v. Magliano

Background

Michael Picard brought a First Amendment challenge to New York Penal Law § 215.50(7), which makes it criminal contempt in the second degree to engage in specified speech or display signs concerning the conduct of a trial, the character of the court or jury, or requested action by the court or jury on a public street or sidewalk within 200 feet of a courthouse. The offense is a class A misdemeanor, carrying a maximum sentence of one year in prison under the provisions discussed in the opinion.

Picard alleged that he had distributed jury-nullification flyers outside courthouses in Connecticut, Massachusetts, and New York since early 2016. On December 4, 2017, he stood outside the Bronx County Hall of Justice, held a sign reading “Jury Info,” and distributed flyers stating “No Victim? No Crime. Google Jury Nullification.” He was arrested after refusing to move when a court officer told him that distributing jury-nullification flyers within 200 feet of a courthouse was unlawful. A Bronx County assistant district attorney later declined to prosecute because the arresting officer had not measured the distance between Picard and the courthouse.

Picard alleged that he had not resumed this advocacy within 200 feet of a New York courthouse because he feared arrest and prosecution. He sought declaratory and injunctive relief under the First and Fourteenth Amendments. He sued Darcel D. Clark, the District Attorney for Bronx County, and Michael Magliano, the Chief of Public Safety for the New York Unified Court System, in their official capacities.

Motions to Dismiss

Magliano and Clark moved to dismiss under Federal Rule of Civil Procedure 12(b)(1), arguing that Picard lacked standing to challenge the law either on its face or as applied to him. Clark separately moved under Rule 12(b)(6), arguing that the complaint did not state a claim against her with sufficient specificity. The court denied both motions.

Standing

The court explained that standing requires an injury in fact, a connection between the injury and the challenged conduct, and a likelihood that a favorable decision would remedy the injury. For a pre-enforcement challenge to a criminal law, a plaintiff generally need not first risk arrest or prosecution. Instead, the plaintiff must allege an intention to engage in conduct arguably protected by the Constitution, conduct arguably prohibited by the statute, and a credible threat of prosecution.

The court held that Picard satisfied this standard. It found that his intended advocacy was arguably protected by the First Amendment and that his interpretation of the statute as covering his conduct was reasonable enough for purposes of standing. His prior arrest supported a credible fear of future arrest, even though the district attorney had declined to prosecute. The stated reason for declining prosecution was the lack of evidence that Picard had been within 200 feet of the courthouse, which did not eliminate his concern that the law prohibited his conduct.

The defendants argued that the law applied only to advocacy directed at a particular trial taking place at that courthouse. The court acknowledged that this narrower interpretation might be correct, but held that Picard only needed to show that his conduct was arguably prohibited at this stage. The court therefore concluded that he had adequately pleaded standing. It did not decide the ultimate merits of his First Amendment challenge.

Claim Against Clark

The court also rejected Clark’s argument that the complaint did not adequately allege her personal involvement. Because Clark was sued in her official capacity, the claim was treated as a claim against the governmental entity she represented. An official may be sued to enjoin enforcement of an allegedly unconstitutional law if that official has some role in enforcing it.

The court held that the complaint stated a claim against Clark in her official capacity because New York district attorneys are responsible for prosecuting crimes and offenses within their jurisdictions. Clark, or her successor, could therefore play a role in enforcing the law in Bronx County, where Picard intended to resume his advocacy. The court also noted that one of Clark’s assistants had decided not to prosecute Picard after his arrest and had not adopted the narrower interpretation of the statute advanced in the motion papers.

Disposition

The court denied the July 26, 2019 motions to dismiss the complaint. The opinion addressed standing and pleading sufficiency; it did not rule on whether New York Penal Law § 215.50(7) is unconstitutional.