NYC Artist’s Retaliation|Claim Kept Alive

MANHATTAN (CN) - An oft-collared street artist who defends the right to peddle on New York City sidewalks without a license can advance retaliation claims, a federal judge ruled.

Robert Lederman filed the lawsuit at issue in 2012, the same year he revealed that police had arrested him 44 times for challenging policies he calls unconstitutional.

Though his conviction record remains spotless, Lederman's luck in the courts has been less predictable.

In the past, he won the right to hawk art on the steps of the Capitol Building without a permit, and he had New York City's licensing requirements for art vendors declared unconstitutional in the 1997 holding in Bery v. City of New York.

Last year, however, the 2nd Circuit affirmed dismissal of his allegations that the city shows favoritism toward its sanctioned vendors around Central Park, the Union Square Greenmarket, and Holiday Markets at Columbus Circle and Union Square.

His current complaint alleges that his rights were trampled again when he was arrested in August 2011 for protesting a panel discussion on financing parks at the Museum of the City of New York.

At that discussion, Lederman stood up and displayed a sign that read: "Park privatization is a real estate scam. It's all about raising property values for the mayor's wealthiest friend."

Lederman, who is the president and founder of Artists' Resistance to Illegal State Tactics (ARTIST), then began heckling and accused Parks Commissioner Adrian Benepe of having "long prosecuted street artists." He said the commissioner was "lying," and that he was a "criminal who steals our park land to sell to the highest bidder."

Benepe eventually told Lederman to "shut up" and threatened to have him arrested.

As police carted Lederman away, he shouted: "Arrest Adrian Benepe!" and "Bloomberg sucks!"

He was charged with trespassing and disorderly conduct. He then sued, claiming false arrest and that Benepe's threat chilled his rights to free speech.

U.S. District Judge Paul Gardephe found Friday that Lederman failed to properly effect service on the museum and its curator, Sarah Henry. He dismissed the claims against those defendants without prejudice and gave Lederman 30 days to effect proper service.

The 27-page ruling also dismisses Lederman's claim of disparate treatment in violation of the 14th Amendment against the city and Benepe.

Lederman lost his Fourth Amendment claim as well with Gardephe finding that police had probable cause to arrest him and that Benepe was not personally involved in that action.

Though Benepe and the city must still face First Amendment retaliation claims, Gardephe seemed skeptical that the allegations will stick.

"If Benepe's alleged threat had no effect on plaintiff, or emboldened rather than deterred him, then plaintiff will not prevail on his First Amendment retaliation claim," he wrote. "It is a question of fact, however, whether Benepe's conduct chilled plaintiff's expression."

Benepe also does not have immunity, and the city must face a municipal-liability claim under the 1978 Supreme Court decision Monell v. Department of Social Services of N.Y., the court found.

"Under Monell, the city can be held liable if Benepe used his policy-making authority to silence critics of the Parks Department, as plaintiff alleges," Gardephe ruled.

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