Rusfeldt v. City of New York, New York

Background

Pastor Aden Rusfeldt, described by the court as a Christian evangelist, moved for a preliminary injunction under Rule 65 of the Federal Rules of Civil Procedure. He principally sought to prevent the City of New York, police commissioners, a police captain, and unidentified police officers from stopping him from speaking about LGBT+ lifestyles and behaviors on a public sidewalk or street corner along the route of the June 26, 2022 Pride March.

The motion was based primarily on Rusfeldt’s account of his arrest during the 2021 Pride March and on an alleged violation of his First Amendment right to free speech. The opinion also notes that his claims invoked the Fourth Amendment, the Fifth Amendment’s due-process protections, and the Fourteenth Amendment’s equal-protection protections, but the court understood those claims to be based on the alleged violation of his free-speech rights.

At the 2021 March, Rusfeldt and three other people stood near Washington Square Park, displayed signs and a large banner criticizing LGBT individuals, and made hostile remarks toward march attendees. A crowd gathered and some people appeared to throw bottles or cups containing liquid. Police officers told Rusfeldt and the group to stop their activities because of public-safety concerns. Officers also told Rusfeldt that he could continue displaying the banner if he removed it from the large metal pole. After Rusfeldt moved away from the original location, he was arrested for disorderly conduct under section 240.20 of the New York Penal Law.

Proceedings and negotiations

Rusfeldt filed the preliminary-injunction motion on March 7, 2022. The court held a hearing on June 10. At the hearing, the City did not dispute Rusfeldt’s right to stand on the sidewalk along the parade route and engage in oral speech and display a written message on a large banner that opposed the message of the Pride March.

The court encouraged the parties to negotiate. On June 16, Rusfeldt’s lawyer, with the City’s consent, told the court that the parties had reached final terms for a stipulated arrangement that would eliminate the need to decide the motion. The parties did not submit a written stipulation, and on June 23 both sides informed the court that negotiations had broken down.

Legal standard

A preliminary injunction is an extraordinary remedy. A person seeking one ordinarily must show likely irreparable harm without the injunction and either a likelihood of success on the merits or serious legal questions warranting litigation, along with a favorable balance of hardships. Because the requested injunction would restrict government action taken in the public interest, the court required Rusfeldt to show a likelihood of success. He also had to show that the injunction would serve the public interest and that the balance of equities favored him.

Ruling

Judge P. Castel concluded that Rusfeldt had not shown likely irreparable harm. The court recognized that the loss of First Amendment freedoms can ordinarily constitute irreparable injury, but found that the evidence and the parties’ submissions did not show that the City was likely to violate Rusfeldt’s protected speech rights at the 2022 March.

The court noted that the parties appeared to agree that Rusfeldt could wear the same or similar clothing, display the same or similar sign using hollow cardboard tubes instead of the large metal pole, and express the same or similar message as at the 2021 March. The City had also proposed that, as long as Rusfeldt and his group did not engage in constitutionally unprotected speech, neither the content of their speech nor the crowd’s reaction would be the basis for an order to disperse or arrest them. The court noted that some categories of speech, such as fighting words and speech intended and likely to produce imminent lawless action, are not constitutionally protected.

Because Rusfeldt did not show that the City would likely take action violating his protected rights, the court found that he could not establish likely irreparable harm. It therefore did not address the other preliminary-injunction factors. The court denied Rusfeldt’s motion for a preliminary injunction and directed the Clerk to terminate the motion.