MEMORANDUM OF LAW IN SUPPORT OF ORDER TO SHOW CAUSE

Plaintiffs LINDSEY (“LINZIE”) VINCENTY; VALERIE ADAMS, on behalf of

her minor son KEREEM ADAMS; GINO CASTIGNOLI, on behalf of his minor

daughter MELISSA CASTIGNOLI; FERNANDO CARLO; RHEA DAVID, on behalf of

her minor daughter LOYETTE DAVID; NELLIE DUMONT; and VINCENT

SCHIANO, through their attorneys KUBY & PEREZ LLP, respectfully submit this

Memorandum of Law in Support of their Order to Show Cause seeking declaratory and

injunctive relief.

PRELIMINARY STATEMENT

Plaintiffs are all artists under the age of 21. They challenge recent amendments to

New York City’s Administrative Code (“the Code”) provisions governing the sale and

possession of aerosol spray paint containers (“spray paint”) and broad tipped indelible

markers (“markers”), codified at N.Y.C. Admin. Code § 10-117 et seq. The amendments

were sponsored by defendant New York City Councilman Peter Vallone, Jr., New York

City’s most avowed critic of graffiti art, and enacted by defendant Mayor Michael

Bloomberg, who shares Councilman Vallone’s subjective and political opposition to the

art form. Acknowledging that the amendments encroach upon constitutional and civil

rights, Councilman Vallone publicly stated in amending the Code, “We realize these bills

push the envelope.”

Until very recently, the Code prohibited selling or offering to sell spray paint and

markers to minors (persons under the age of 18) in the City of New York. Additionally,

the pre-amendment provisions of the Code prohibited possession of spray paint and

markers by anyone, of any age, who possessed such materials with the intent of

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committing acts of vandalism or property damage (i.e., with the intent of making graffiti,

in violation of New York State Penal Law). No further restrictions on possession were

provided.

The amendments to the Code, which went into effect on or about January 1, 2006,

extend the Code’s reach and applicability to the point of being impermissibly overbroad,

in violation of the First and Fourteenth Amendments to the United States Constitution.

Under the amended Code, all persons under the age of 21 are prohibited from purchasing

spray paint and markers. The Code provides no exemption or limitation to that

prohibition.

In addition, apart from the prohibition on the sale of spray paint and markers, all

adults and minors in New York City under the age of 21 who merely possess spray paint

or markers in public and even in most private places now are subject to arrest, on the

spot. Possession for legal and wholly legitimate artistic, expressive or educational

purposes is completely prohibited. This strict liability prohibition is unparalleled in its

reach measured against comparable municipal ordinances across the country, bears no

factual relationship to the City’s compelling interests in fighting illegal graffiti, is

unnecessary, is not narrowly tailored, and is flagrantly overbroad.

The amended Code provides no exemptions or exceptions to the possession

prohibition, as is the case with the sale prohibition. There are two affirmative defenses to

possession: possession with the express consent of the owner of the property on which

the under-21 year old is caught, and possession while traveling to or from a place of

employment where the under-21 year old possessor will be supervised by his or her

employer. Because the Code provides affirmative defenses rather than exemptions or

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exceptions, a person must be arrested, plead not guilty in criminal court, be prosecuted,

wait for a trial, and call witnesses and present evidence on her behalf in order to qualify

for the safe harbor provisions of the law.

The Code clearly and unabashedly targets a particular form of artistic expression

and those who create it: graffiti art, and young graffiti artists. It is overbroad and

unconstitutional on its face. Further, the Code violates plaintiffs’ First and Fourteenth

Amendment rights as it is applied to them. Finally, it violates the Equal Protection

Clause. For these reasons plaintiffs seek, among other things, declaratory and injunctive

relief, in the form of an Order of this Court (1) declaring the challenged provisions of the

Code violative of the United States Constitution; and (2) enjoining defendants from

enforcing the specific provisions of the Code that violate their federal constitutional

rights and the rights of those similarly situated.

STATEMENT OF FACTS

COUNCILMAN VALLONE’S AND MAYOR BLOOMBERG’S PERSONAL ANIMOSITY TOWARD GRAFFITI ART AND GRAFFITI ARTISTS

The political and historical context of this case is critical.

For over a year, defendants Councilman Vallone and Mayor Bloomberg have

waged a personal war against graffiti art and graffiti artists, fueled by their personal,

subjective distaste for the art form and those who create and admire it. Their personal

vendetta has evolved to the point that it now restricts legitimate, constitutionally

protected artistic expression in the City of New York.

In early 2005, Councilman Vallone, then and still the Chair of the New York City

Council (“the Council”) Committee on Public Safety, proposed sweeping new legislation

ostensibly to combat vandalism, property damage and making graffiti. All of these

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criminal acts were already criminalized under the laws of the State of New York. As

originally contemplated, Councilman Vallone’s proposed legislation would have banned

the sale of spray paint to nearly everyone in New York City. One newspaper described

the core legislation as follows, “The bill he introduced at yesterday’s Council session

would impose limits of up to a year in jail and a $1,000 fine for selling spray paint to

anyone within city limits. The only exceptions would be for professionals, such as artists

and contractors.” Frank Lombardi, “Bill Draws New Bead on Graffiti,” Daily News,

Feb. 3, 2005 (annexed to the Declaration of Daniel M. Perez (“Perez Dec.”) at Exhibit 2,

p. 1).

In July, 2005, Vallone betrayed the true targets of his opposition: graffiti art and

graffiti artists. Vallone took aim at an advertising billboard rented by Time magazine.

The magazine commissioned a professional graffiti artist, Fernando Carlo, a/k/a Cope2,

to artistically adorn the billboard, paying him $20,000. Carlo, a/k/a Cope2, is the father

of plaintiff Carlo. Vallone was quoted as declaring, “Time magazine should have spent

its money rewarding legitimate artists, not some punk who’s been defacing our city.”

Nick McDonell and Carrie Melago, “A Graffiti War With Pol,” Daily News, July 3, 2005

(Perez Dec. at Exhibit 2, p. 3).

Later in July, 2005, Vallone trained his sights on a graffiti videogame. The game,

created by fashion designer and graffiti artist Marc Ecko (“Ecko”), is entitled, “Getting

Up: Contents Under Pressure,” and produced by Atari. As was the case with the Time

magazine billboard, Vallone went on the offensive, and wrote an open letter to Atari.

“You are personally encouraging children to deface neighborhoods, break the law and

wind up behind bars. This is an appalling lack of responsibility on your part.” Carrie

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Melago, “Graffiti Video Game Tagged As Sinister,” Daily News, July 20, 2005 (Perez

Dec. at Exhibit 2, p. 4).

In August, 2005, Vallone learned that Ecko’s company had been granted a street

permit to hold a live graffiti art exhibition. At the exhibition, professional graffiti artists

were to spray paint and draw on two-dimensional subway car mock-ups, in front of a

live, public audience. Once again, Vallone launched an all-out assault in the press.

“Holding graffiti demonstrations is like having a demonstration of a thug pickpocketing a

wallet or stealing a purse. . . . New York City shouldn’t be in the business of promoting

criminal acts.” Carrie Melago, “Pol Is Seeing Red Over Graffiti Party,” Daily News,

Aug. 15, 2005 (Perez Dec. at Exhibit 2, p. 5). Vallone also criticized the videogame.

Not coincidentally, the City revoked Ecko’s permit for the block party the day

after Vallone’s comments were published. After fruitless attempts to re-secure the

permit, Ecko filed suit in this Court, seeking declaratory and injunctive relief. At bottom,

Ecko sought an order commanding the City to re-issue his permit. Mayor Bloomberg

joined Vallone’s anti-graffiti crusade. In public comments about the exhibition, the

Mayor said, “This is not really art or expression, this is, let’s be honest about what it is:

It’s trying to encourage people to do something that’s not in anybody’s interest.” Jim

Rutenberg, “City Revokes Permit Over Exhibit With Graffiti, New York Times, Aug. 16,

2005 (Perez Dec. at Exhibit 2, at p. 7).

Judge Rakoff granted Ecko’s application for the preliminary injunction and

ordered the City to re-issue the permit. Ecko.Complex LLC d/b/a Ecko Unltd., v.

Bloomberg, 382 F. Supp. 2d 627 (S.D.N.Y. 2005). According to the Court,

[I]n the words of the Mayor on his radio program last Friday, the exhibition is tantamount to “encouraging vandalism.” Mayor’s 8/19/05

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Radio Interview. By the same token, presumably, a street performance of Hamlet would be tantamount to encouraging revenge murder. Or, in a different vein, a street performance of “rap” music might well include the singing of lyrics that could be viewed as encouraging sexual assault. As for a street performance of Oedipus Rex, don’t even think about it. The First Amendment would be a weak reed indeed if the utterance of such expressions could be banned from the City’s streets because, in the Mayor’s view, “It’s trying to encourage people to do something that’s not in anybody’s interest.” Rutenberg, supra. Such heavy-handed censorship would, moreover, fall particularly hard on artists, who frequently revel in breaking conventions or tweaking the powers that be.

382 F. Supp. 2d 627, 630 (emphases in original).

In the wake of the Judge Rakoff’s decision, Vallone stubbornly insisted, “This

was never about art. This is about multimillion-dollar corporations fraudulently

obtaining a permit to use our streets to promote a video game which teaches kids how to

commit crimes.” Dan Kadison, “Scrawl Stands Tall – Pro-Graffiti Bash Bests City

Lawyers,” New York Post, Aug. 25, 2005 (Perez Dec. at Exhibit 2, p. 9).

Recently, Sony placed graffiti-styled advertisements for its PlayStation Portable

videogame in six outdoor-advertising locations around the city. The ads were drawn by

local artists with black paint, and featured no wording.

Predictably, Councilman Vallone attacked Sony in the press, excoriating it for

what he perceived to be irresponsible behavior and a dangerous message. He wrote a

letter to Sony (forwarding it to the press, as he had done with the Ecko videogame)

demanding that Sony pull the ads and donate $20,000 to anti-graffiti programs. He

wrote, “Children are impressionable, and if they see a wall with graffiti on it and they

don’t know that it’s done with permission, it could very well lead to them believing that

it’s OK for them to do it.” Angela Montefinise, “Pol: Get ‘Graffiti’ Ads Off The Wall,”

New York Post, Jan. 8, 2006 (Perez Dec. at Exhibit 2, p. 13).

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THE PRE-AMENDMENT VERSION OF THE CODE

As Councilman Vallone’s and Mayor Bloomberg’s verbal and written attacks on

graffiti art and artists played out in the press, federal court and – over their failed

objections – in the streets, the anti-graffiti legislation sponsored by Councilman Vallone

in February, 2005 slowly wended its way through the city Council.

Originally enacted in 1985, what is now N.Y.C. Admin. Code § 10-117 was

passed to address the growing problem of vandalism and public defacement by means of

making unauthorized graffiti. The Code has undergone a number of revisions over the

years. Until its most recent amendments and additions (i.e., until December 29, 2005),

the highlights were as follows:

(a) No person is permitted to “write, paint or draw any inscription, figure or mark or affix” on any “public or private building or other structure or any other real or personal property owned, operated or maintained by a public benefit corporation [or] the City of New York. . . .” (b) No person shall carry spray paint or a marker for the purpose of violating subsection (a), above; (c) No person shall sell or offer to sell spray paint or a marker to any person under 18 years of age.

Pre-Amended N.Y.C. Admin. Code §§ 10-117 (a) through (c).1 A complete copy of

N.Y.C. Admin. Code § 10-117, pre-amendment, is annexed to the Perez Dec. at Exhibit

3. The Code defined a broad tipped indelible marker as “any felt tip marker or similar

implement containing a fluid that is not water soluble and which has a flat or angled

writing surface one-half inch or greater.” N.Y.C. Admin. Code § 10-117(e).

1 The Code prohibited and still prohibits the sale and possession of “etching acid.” Since no plaintiff wishes to possess etching acid, this provision of the Code is not before the Court. Likewise, the Code also regulated and still regulates the manner of display of spray paint and markers. No plaintiff challenges these provisions, either.

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Further provisions under the pre-amended version of the Code set forth applicable

civil and criminal penalties, and granted powers of enforcement of the Code to various

City agencies. First violations of the Code were punishable as a class B misdemeanor

(fine of $500 or less and imprisonment of up to three months). Subsequent violations of

the Code increased the penalties to A misdemeanors (fine of $1,000 or less and one year

or less of jail). N.Y.C. Admin. Code § 10-117(f).

Two “rebuttable presumptions” were included, and applied to stickers or decals.

The presumption was that the person whose name or identifying information appeared on

the sticker or decal violated the Code by either affixing the stickers or decals himself or

by directing agents to do the same.

On the other hand, no exemptions or exceptions were incorporated into the Code.

Nor were any affirmative defenses provided. N.Y.C. Admin. Code § 10-117(i) and (j).

THE AMENDED, CHALLENGED VERSION OF THE CODE

On or about December 21, 2005, the city Council passed Proposed Int. No. 556-

A, entitled “To amend the administrative code of the city of New York, in relation to the

possession and sale of graffiti instruments.” The amendment was incorporated into a

report. A copy of the report, dated December 12, 2005, is annexed to the Perez Dec. at

Exhibit 4.

On December 29, 2005, Mayor Bloomberg signed the proposed Code into law. A

press release also released by the Mayor commended the “commonsense measures that

will help fight graffiti and keep our city clean and beautiful.” Mayor’s Press Release,

Dec, 29, 2005 (Perez Dec. at Exhibit 2, p. 14). In an article that appeared the next day in

the Daily News, Councilman Vallone commented on the law, “We realize these bills

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push the envelope. But it’s time to get serious. We can no longer let these spray-painting

punks use our city as our unmarked canvas.” Lisa Colangelo, “Mike Signs Noise Bill &

26 Others,” Daily News, Dec. 30, 2005 (Perez Dec. at Exhibit 2, p. 11).

The challenged highlights of the amended Code are as follows (quoted verbatim):

(c) No person shall sell or offer to sell an aerosol spray paint can, broad tipped indelible marker or etching acid to anyone under twenty-one years of age. (c-1) No person under twenty-one years of age shall possess an aerosol spray paint can, broad tipped indelible marker or etching acid on the property of another or in any public building or upon any public facility.

Amended N.Y.C. Admin. Code § 10-117 (c) and (c-1) (Perez Dec. at Exhibit 5).2 Section

10-117 does not define the term “public facility.” 3

Still, there are no exemptions or exceptions to the Code. In place of the

“rebuttable presumptions,” there are two new “affirmative defenses”:

(c-2) When a person is found to possess an aerosol spray paint can, broad tipped indelible marker or etching acid while on the property of another or in any public building or upon any public facility in violation of subdivision c-1 of this section, it is an affirmative defense that:

(1) the owner, operator or other person having control of the property, building or facility consented to the presence of the aerosol spray paint can, broad tipped indelible marker or etching acid; or

2 As of April 19, 2006, New York City’s website still did not reflect the amendments to the Code, even though the amendments had been in effect for months. See, e.g., www.nyc.gov/html/sbs/nycbiz / html/managing/graffiti.shtml (last checked April 19, 2006). Nor did the NYPD’s website mention the amendment. See http://www.nyc.gov/html/nypd/html/transportation/vandals.html (last checked April 19, 2006). Anyone wishing to find the updated law would have to access the City Council’s website and search for the legislation by inputting the bill number. 3 Potential guidance in defining a public facility can be divined by reference to N.Y.C. Admin. Code § 27-509, regulating the heights of fences: “. . . . higher fences may be permitted by the commissioner where required for the enclosure of public playgrounds, school yards, parks, and similar public facilities.” It is highly unlikely that an NYPD officer applying this law would search for or find such guidance.

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(2) such person is traveling to or from his or her place of employment, where it was or will be used during the course of such employment and used only under the supervision of his or her employer or such employer’s agent.

Amended N.Y.C. Admin. Code § 10-117 (c-2) (Perez Dec. at Exhibit 5).

Finally, the amended Code increases the applicable penalties generally from B

misdemeanors to A misdemeanors. As for a violation of § 10-117 (c-1), the possession

prohibition, it is a violation, punishable by a fine of $250 or less and imprisonment of up

to 15 days. Amended N.Y.C. Admin. Code § 10-117 (f) (Perez Dec. at Exhibit 5).

NEW YORK STATE PENAL LAW AND THE CITY’S OTHER EFFORTS TO PREVENT AND CONTROL ILLEGAL GRAFFITI

Administrative Code § 10-117 merely echoes and supplements New York state

criminal statutes. Even absent the Administrative Code, New York law prohibits making

unauthorized graffiti. The penalties for making graffiti and related offenses are severe.

New York Penal Law § 145.60 and § 145.65 criminalize making graffiti and

possessing graffiti instruments. N.Y.C. Admin. Code § 10-117(a) is, for all intents and

purposes, identical to New York P.L. § 145.60, entitled “Making Graffiti,” which

prohibits “mak[ing] graffiti of any type on any building, public or private, or any other

property real or personal owned by any person, firm or corporation or any public agency

or instrumentality, without the express permission of the owner or operator of said

property.” Making Graffiti is a class A misdemeanor.

Likewise, N.Y.C. Admin. Code § 10-117(b) mimics New York P.L. § 145.65,

which criminalizes Possession of Graffiti Instruments. Under the Penal Law, “A person

is guilty of possession of graffiti instruments when he possesses any tool, instrument,

article, substance . . . commonly used to etch, paint, cover, draw upon or otherwise place

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a mark upon a piece of property which that person has no permission or authority to etch,

paint cover or draw upon . . . under circumstances evincing an intent to use same in order

to damage such property.” Possession of Graffiti Instruments under the Penal Law is a

class B misdemeanor.

Finally, New York Penal Law § 145.00 et seq., the Criminal Mischief statute,

provides harsh penalties for property damage and destruction. Depending on the extent

of the damage involved, these crimes are punishable as class A misdemeanors, class E

felonies or class D felonies.

In addition to the state criminal statutes, the City of New York has implemented

other enforcement measures against illegal graffiti (apart from the sections of the

Administrative Code challenged herein). For example, the Administrative Code provides

for a reward of $500.00 for information leading to the apprehension of any person who

makes illegal graffiti. N.Y.C. Admin. Code § 10-117.2. The NYPD’s website has a

printable flyer providing a “REWARD UP TO $500.00 For the arrest and conviction of

anyone who commits GRAFFITI VANDALISM.” A copy of the flyer is annexed to the

Perez Dec. at Exhibit 6.

The NYPD has distributed a booklet to commercial establishments and businesses

advising them of the negative effects of illegal graffiti, and suggesting ways that they can

assist the City’s efforts to combat the crime. A copy of the booklet is annexed to the

Perez Dec. at Exhibit 7. The City also has established a City-Wide Vandals Task Force,

a principal mission of which is to fight graffiti.

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BECAUSE THE ADMINISTRATIVE CODE AMENDMENTS ARE OVERBROAD, PLAINTIFFS’ ARTISTIC AND EXPRESSIVE RIGHTS, AMONG

OTHER INTERESTS, HAVE BEEN INFRINGED

Plaintiffs comprise a cross-section of individuals who have been directly damaged

by the amendments to the Code. Moreover, each of the plaintiffs – as is true of every

under-21 year old in New York City – can be arrested on the spot if they are caught in

possession of materials they use for their artwork, expression or employment.

The School of Visual Arts (College) Students: Plaintiffs Vincenty and Dumont

Plaintiffs Vincenty and Dumont are college students in New York City, both

attending the School of Visual Arts. They are 20 years old. Their affidavits are annexed

to the Perez Declaration at Exhibits 8 and 9, respectively. Vincenty is an unquestionably

talented and accomplished graffiti artist. Virtually all of her work involves the use of

spray paint and broad tipped markers. See Perez Dec. at Exhibit 1 (Vincenty artwork)

and http://www.flickr.com/photos/63448316@N00/ (web postings of additional Vincenty

artwork). Her experiences in being denied spray paint and broad tipped markers, and the

resulting frustration she has experienced as an artist, is representative of the plaintiffs

generally:

I am presently 20 years of age. My date of birth is May 13, 1985. I am a student at the School of Visual Arts (SVA), which is an art university located in Manhattan at 209 E. 23rd Street. I live in Brooklyn. I have been attending the SVA since September, 2003, since I graduated from high school.

I am a fine arts major. Some of the courses I take include painting, sculpture, silk-screening and art history. When I graduate, I would like to be a professional artist. I am a graffiti artist. I use spray paint and broad tipped indelible markers on virtually everything I create. I have amassed a portfolio of 100 works of art – from canvases, to pieces on Plexiglas and wood, to sculptures and apparel. . . .

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I have been denied spray paint from various establishments, such as Pearl Paint and Vercesi Hardware on 23rd Street. I have been denied broad tipped markers from Utrecht and Pearl. Generally, I will attempt to purchase my art supplies, and when I try to pay for it, my identification is checked, and I am told I cannot complete the purchase. I literally cannot function without spray paint and markers. Spray paint covers differently than other paints applied with a brush, such as mists, fades and blends. It dries faster, so I can layer more quickly. It covers well, smoothly and evenly. The fact that I cannot legally purchase spray paint or broad tipped markers limits my ability to express myself creatively. It puts restrictions on something that shouldn’t have restrictions. I am advised by my counsel that not only can I not purchase spray paint or markers, but I cannot even possess it, either. I can’t take the train from my apartment in Brooklyn to my school, with the things I need to use for classes. If I do, I am breaking the law. I am not a criminal. I am not a law breaker. Since I became aware of this law, I am uncomfortable with the fact that I can be arrested or persecuted for what I believe is my God-given right: to paint. I have never been arrested. I have never illegally “tagged.” I should not feel uncomfortable with a bag full of markers and spray paint if I walk past a police officer. I am not doing anything wrong.

Vincenty Affidavit at ¶¶ 2-7. See also Dumont Affidavit (Perez Dec. at Exhibit 9, at ¶¶

4-6) (describing how plaintiff Dumont, a film major, uses spray paint as an artist; she

purchases spray paint at her home in upstate New York but cannot purchase it here in

New York City. As a result, she did not create a stenciled canvas she had planned to

make. “The fact that I cannot purchase spray paint takes away an avenue of expression

from me. It stifles my artistic freedom.”).

The High School Students: Plaintiffs Adams, Castignoli and David

Plaintiffs Adams and David are students at Washington Irving High School in

Manhattan in their junior years. Plaintiff Castignoli is a student at Preston High School

in the Bronx – an all girls, Catholic prep school – also in her junior year. Their affidavits

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are annexed to the Perez Dec. at Exhibits 10 (Adams), 11 (David) and 12 (Castignoli).

Plaintiffs Adams and David are 16 years old; plaintiff Castignoli just turned 17 years old.

These plaintiffs share a love for graffiti as an art form and are all aspiring graffiti

artists. Adams and David have supplied the Court with samples of their graffiti artwork,

which is annexed to the Perez Dec. at Exhibit 1. Plaintiff Adams wishes to use “broad

tipped markers to get a wider range and because the color stands out more.” Adams

Affidavit at ¶ 4 (Perez Dec. at Exhibit 10). He wants “to try using spray paint, to

experiment as an artist. Presently, I cannot use spray paint, as it is illegal for me to

purchase it or possess it. If I had access to spray paint, I would buy canvasses and test

out various designs I have in my head on the canvass.” Id. at ¶ 5. Like the rest of the

three high school plaintiffs, he has been repeatedly denied markers from art stores. Id. at

¶ 6. There “have been times that I have not drawn graffiti art, simply because I could not

get broad tipped markers.” Id. at ¶ 7. In short, he states, “I believe the laws prevent me

from exercising my artistic ability to create vibrant, colorful art pieces. The laws stop me

from having the ability to express my creativity. I have never tagged anything. I am not

a criminal. This law is unfair to me.” Id. at ¶ 8.

Plaintiff David likes to “draw graffiti art. I draw graffiti on a weekly basis, on

any paper that I have, as well as t-shirts and notebooks. Sometimes, I draw on my

computer.” David Affidavit at ¶ 3 (Perez Dec. at Exhibit 11). As an artist, she prefers

broad tipped markers “because they are faster to color with. For example, when coloring

something in, fewer strokes are needed with a broad tipped marker as compared to a thin

marker. Also, it gives my art a different texture.” Id. at ¶ 4. Although she cannot legally

buy markers, she gets them from her sister, who is 23. Id. She once traveled by subway

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with markers on her person, id., is afraid of being arrested, id. at ¶ 7, and opposes the

amendments to the Code because, in her own words, “I believe the laws are unfair. Just

because I carry around markers, does not mean that I am going to use them on a wall.

The age limit is ridiculous. I can own a credit card at 18, but I cannot buy markers or

spray paint with it. That makes no sense to me.” Id. at ¶ 8.

Likewise, plaintiff Castignoli loves graffiti art, which she draws on paper, books,

and handbags. As for the handbags, she states, “Once, I spray painted a handbag. While

it wasn’t very good, and I hid it under my bed, I would very much like to try again.”

Melissa Castignoli Affidavit at ¶ 3 (Perez Dec. at Exhibit 12). Castignoli has been

offered $10.00 by a friend to draw her name in graffiti style on a t-shirt. Id. at ¶ 3.

Because of the law, she cannot. Id.

Plaintiff Melissa Castignoli’s father, Gino Castignoli, also submits an affidavit.

Gino Castignoli is a 44 year old unionized construction worker with Local 780, Cement

Masons of New York. He relates an incident in which he – a 44 year old cement worker

– was challenged recently by a police officer for possessing a broad tipped marker, which

explains his support of his daughter’s involvement in this case:

I am a construction worker with Local 780, Cement Masons of New York. Specifically, I am a mason. As a mason, I use broad tipped markers every day. I have one in my pocket every day, usually one red and one black. I use them to mark things that have to be chopped, cut, done or not done. There are 50 guys that carry and use spray paint or markers at my job, every day. Some are as young as 18 years of age. I was once stopped on a subway platform, on the 6 line. This was approximately six months ago, when I was working on 21st Street in Manhattan. I was involved in a building project. A police officer approached me and asked me what I was doing with a marker that was sticking out of my pocket. I told him I was 44 years old, and I was going to go write on the train. He looked at me and gave me a blank stare. I said I use the marker for work. He then just walked away from me.

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I am filing this lawsuit on my daughter’s behalf so that if my daughter wants art supplies, she can go get them. I don’t want my daughter to be arrested for having a marker in her pocket. My daughter is a young artist. I support her artistic expression, and want her to possess markers and spray paint, or whatever she wants to have to make art. As long as she isn’t destroying someone’s property, I have no objection to her possessing these materials.

Gino Castignoli Affidavit at ¶¶ 3-5 (Perez Dec. at Exhibit 13).

Mr. Castignoli also feels that the laws encroach upon his parental rights:

I believe that this law interferes with my rights as a parent. I should be the one to decide whether or not my daughter can buy or possess a marker. She is my daughter, and I am responsible for her behavior. If she breaks the law, she will answer to the authorities, but she will also answer to me. I do not believe that will happen. I believe that the only reason she wants to buy and possess these materials is for her art. She should be allowed to do so.

Id. at ¶ 6.

The Graffiti Artist/Unionized Painter’s Apprentice, and The Community Activist/Son of a “Punk”: Plaintiffs Schiano and Carlo

Plaintiff Schiano, who is 20 years of age, works for the D.C. 9 Painters’ Union as

a painter’s apprentice. He is also a graffiti artist. His affidavit is annexed to the Perez

Dec. at Exhibit 14, and samples of his artwork are annexed to the Perez Dec. at Exhibit 1.

As a painter’s apprentice, Schiano has regular occasion to use spray paint:

I use spray paint on surfaces such as metal, door hinges, hardware, and any other surfaces the customer wishes to be spray painted. I have spray painted a mural in the auditorium of a public school (IS 278, in Marine Park). I have spray painted cartoon characters in children’s bedrooms. As a painter’s apprentice, my responsibilities include procuring painting supplies. Procuring supplies is part of my job description.

Schiano Affidavit at ¶¶ 4-5 (Perez Dec. at Exhibit 14).

Apart from his responsibilities as a painter’s apprentice, Schiano is a talented

graffiti artist, and uses spray paint and markers in that endeavor, as well:

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I specialize in graffiti art, for which I have a deep passion. I have been making graffiti art for years, since I was the age of ten. I draw graffiti art on t-shirts, canvases, and the wall of my parents’ garage. After I make a mural on my parents’ garage wall, I take a picture, paint over it with primer and start again. All of my art involves the use of spray paint, except drawings and sketches that I write before I paint a canvas, mural or t-shirt. . . .

I wish to purchase aerosol spray paint cans and broad tipped indelible markers so that I may express myself artistically and because my employment involves the use of spray paint. These materials are central to graffiti art and a painter’s employment. Most famous graffiti art, and all of my personal art, has been created with spray paint or broad tipped markers. If I were to be able to purchase these materials, I would use them for only lawful purposes – for my art, and for work.

Id. at ¶¶ 6-8.

Schiano fears arrest and retribution for exercising his artistic expression:

I fear arrest and prosecution as a result of the Administrative Code provisions governing the sale and possession of spray paint and broad tipped indelible markers. These provisions have inhibited my artistic expression, because (a) I cannot buy art materials; and (b) even if I gain access to these materials, I fear arrest and prosecution. The Administrative Code further inhibits me as an employee, because whereas 21 year old painters’ apprentices can buy all types of painting materials, I cannot.

There have been occasions when I wanted to create artistic works but I have not, due to the Administrative Code provisions. I simply wish to be able to buy my art supplies. I wish to be able to carry them home on the subway or in a taxi, or while walking on a sidewalk or through a park, or on my way to or from work, without fear of arrest. I wish to be able to express myself freely and without fear, and I wish to be able to work without fear. Under these provisions of the Administrative Code, I am unable to do so, in the City I call home.

Id. at ¶¶ 12-13.

Finally, plaintiff Carlo is an aspiring graffiti artist who wishes to express himself

and possibly follow in his father’s footsteps. Carlo, a 20 year old, is an advocate and

organizer with Sisters and Brothers United, a community-based youth organization in the

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Bronx. His father, whose name is also Fernando Carlo, is known by the artistic name

Cope2, and is a well-established, professional graffiti artist. In fact, Cope2 was the artist

Time Magazine paid $20,000 to paint a billboard – who was later branded by

Councilman Vallone as a “punk.” See above. Plaintiff Carlo explains,

Because my dad is a graffiti artist, I have been interested in graffiti as an art form since I was a young child. For that reason, and because I like the art form, I practice making graffiti art myself. I consider myself to be an aspiring graffiti artist. . . . I have drawn on canvases and in books. Perhaps I can follow in my father’s footsteps, and become a successful and famous graffiti artist someday. Perhaps someone will commission me to paint a beautiful mural, or participate in the making of a video game, as has been the case with my dad. Typically, I practice making my art at home or in places where I am able to freely express myself without fear of arrest or prosecution.

Carlo Affirmation at ¶ 4 (Perez Dec. at Exhibit 15). Like the rest of the plaintiffs, Carlo

fears arrest and prosecution for possessing his instruments of artistic expression. Id. at ¶

7-9. At times, he has been denied spray paint or markers. Id. Disturbingly, he writes,

“[t]here have been occasions when I wanted to create artistic works but I have not, due to

the Administrative Code provisions. I have even destroyed other works I have created,

for fear that if I am caught with them, I will be arrested.” Id. at ¶ 10.

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ARGUMENT

I. THE AMENDMENTS TO THE ADMINISTRATIVE CODE CONCERNING SALE AND POSSESSION OF SPRAY PAINT AND MARKERS VIOLATE THE FIRST AND FOURTEENTH AMENDMENTS.

Plaintiffs seek a “prohibitory” injunction – as opposed to a “mandatory”

injunction – in that they seek a stay of “governmental action taken in the public interest

pursuant to a statutory or regulatory scheme.” Mastrovincenzo v. City of New York, 435

F.3d 78, 89 (2d Cir. 2006). The “governmental action” concerning which they seek a

stay is the City’s enforcement of N.Y.C. Admin. Code § 10-117, a “statutory or

regulatory scheme.” See id. (injunction sought to suspend enforcement of Administrative

Code provision “clearly prohibits, rather than compels, government action by enjoining

the future enforcement” of the Code; lower “prohibitory” injunctive standard applied).

Thus, the applicable standards are (1) irreparable injury absent injunctive relief; and (2)

likelihood of success on the merits. Id., quoting Plaza Health Labs, Inc. v. Perales, 878

F.2d 577, 580 (2d Cir. 1989).

A. Plaintiffs Have Been Irreparably Injured.

The Supreme Court held in Elrod v. Burns, 427 U.S. 347, 373 (1976) that “the

loss of First Amendment freedoms, for even minimal periods of time, unquestionably

constitutes irreparable injury.” See also Bery v. City of New York, 97 F.3d 689, 693-94

(2d Cir. 1996), cert. denied, 520 U.S. 1251 (1997) (same).

In Bery, artists engaged in painting, photography, and sculpture were arrested,

threatened with arrest or harassed by New York City law enforcement officials for

attempting to display and sell their creations in public spaces in the City without a

general vendor’s license. They sought preliminary injunctions to enjoin enforcement of

20

the General Vendors Law, § 20-452 of the Administrative Code, which barred visual

artists from exhibiting or selling their work in public places in New York without a

license. Reversing the district court’s decision denying the preliminary injunction, the

Court of Appeals held that the artists established that they would incur irreparable injury

and a likelihood of success on the merits. Id. at 698-99.

Similarly, in Elrod, respondents, non-civil service employees, brought suit for a

preliminary injunction, alleging that they were discharged or threatened with discharge,

in violation of the First and Fourteenth Amendments, for the sole reason that they were

not affiliated with or sponsored by the Democratic Party, which was the affiliation of the

Cook County, Ill., Sheriff’s Office at the time. The Supreme Court asserted that

“[i]nasmuch as this case involves First Amendment rights of association which must be

carefully guarded against infringement by public office holders, we judge that injunctive

relief is clearly appropriate in these cases. The loss of First Amendment freedoms, for

even minimal periods of time, unquestionably constitutes irreparable injury” Id. at 373.

Plaintiffs have suffered and continue to suffer injury as artists on a daily basis.

They have been unable to purchase or possess what they consider to be the indispensable

implements of their artistic expression. As a consequence, plaintiffs limit, modify or, at

times, even refrain from artistically expressing themselves, as the paint and ink they seek

to apply to canvases, posters and paper are distributed through aerosol cans or broad

tipped markers, which they are prohibited from purchasing or possessing. Some

plaintiffs have gone as far as destroying their artwork, out of fear that the artwork itself is

illegal.

21

Even if a plaintiff legitimately secures a can of spray paint or a marker, by having

a parent or over-21 year old teacher, employer, relative or friend buy it and give it to

them, they risk arrest on the spot if caught with it. While no plaintiff has been arrested

under the statute, plaintiffs need not be arrested as a precondition to have standing to file

suit in this Court. Babbitt v. United Farm Workers National Union, 442 U.S. 289, 298

(1979) (“When a plaintiff has alleged an intention to engage in a course of conduct

arguably affected with constitutional interest, but proscribed by a statute, and there exists

a credible threat of prosecution thereunder, he ‘should not be required to await and

undergo a criminal prosecution as the sole means of seeking relief.’”) (quoting Doe v.

Bolton, 410 U.S. 179, 188 (1973)); Brache v. County of Westchester, 658 F.2d 47, 51 (2d

Cir. 1981), cert. denied, 455 U.S. 1005 (1982) (“To maintain a pre-enforcement challenge

a plaintiff must demonstrate a genuine threat that the allegedly unconstitutional law is

about to be enforced against him.”).

B. Graffiti Art and Graffiti Artists Are Entitled to the Full Protection of the First Amendment.

The First Amendment shields more than political speech and verbal expression.

Its protections extend to, among many other things, entertainment, Winters v. New York,

333 U.S. 507, 510 (1948); film, Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501-02

(1952); theater, Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975); and

music, without regard to words, Ward v. Rock Against Racism, 491 U.S. 781, 790

(1989). “The Constitution looks beyond written or spoken words as mediums of

expression.” Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515

U.S. 557, 569 (1995). If the First Amendment reached only “expressions conveying a

‘particularized message,’” its “protection would never reach the unquestionably shielded

22

painting of Jackson Pollock, music of Arnold Schoenberg, or Jabberwocky verse of

Lewis Carroll.” Id. (quoting from Spence v. Washington, 418 U.S. 405, 411 (1974)).

In Bery, Judge Carter eloquently wrote, “Visual art is as wide ranging in its

depiction of ideas, concepts and emotions as any book, treatise, pamphlet or other

writing, and is similarly entitled to full First Amendment protection.” 97 F.3d at 695.

Graffiti art is visual art. It is entitled to full First Amendment protection. Graffiti

art is displayed in museums. It is taught in art schools. It is purchased and sold. It is

published in books and commissioned by major corporations. The very essence of

graffiti art is to challenge traditional thinking and convention. Graffiti art is the rare form

of communication that transcends racial, cultural, class, gender and generational lines.

See generally Perez Dec. at Exhibit 1 (reproductions of plaintiffs’ various artistic works).

“As the Supreme Court has reminded us, visual images are ‘a primitive but effective way

of communicating ideas . . . a shortcut from mind to mind.’” Bery, 97 F.3d at 695

(quoting West Virginia Board of Education v. Barnette, 319 U.S. 624, 632 (1943)).

This Court held in Ecko that a live graffiti art exhibition was entitled to First

Amendment protection. Ecko, 382 F. Supp. 2d at 629. To the extent that the Code

unduly infringes upon the creation, display or expression of graffiti art, principles of the

First Amendment surely apply.

C. Plaintiffs Are Likely to Succeed on the Merits of Their First Amendment Claims.

1. The Code is a presumptively unconstitutional,

content-based restriction on speech.

Graffiti art is synonymous with spray paint and markers, and vice-versa. Without

these implements of expression there is, quite simply, no graffiti art. Removing spray

23

paint or markers from the hands of a graffiti artist is tantamount to removing oil paints

from Van Gogh, marble from Michelangelo or cellos from Yo-Yo Ma. It is the raw

material of artistic, social and political communication. Limiting access to or possession

of the raw material of artistic expression limits the expression itself. “We are aware, of

course, that objects themselves do not actually communicate – people do.”

Mastrovincenzo, 435 F.3d at 91.

The historical and political context outlined above compels the conclusion that the

City of New York seeks to severely limit graffiti art in all of its forms – whether legal or

illegal – and burden graffiti artists. Councilman Vallone views graffiti artists as

dangerous “punks” who “deface” the City. According to the councilman, corporations

that commission graffiti artists to paint billboards or advertising space somehow

“encourag[e] children to deface neighborhoods, break the law and wind up behind bars.”

Permitting a graffiti art exhibition, the councilman said, “is like having a demonstration

of a thug pickpocketing a wallet or stealing a purse. . . . New York City shouldn’t be in

the business of promoting criminal acts.”

As for the Mayor, he said of the August, 2005 graffiti art exhibition, “This is not

really art or expression, this is, let’s be honest about what it is: It’s trying to encourage

people to do something that’s not in anybody’s interest.”

It is well-established that government cannot impose burdens that selectively

target a particular form of First Amendment rights, or a class of persons engaged in

practicing those rights. Such regulations are presumptively unconstitutional:

The principle that government, in pursuit of legitimate interests, cannot in a selective manner impose burdens on conduct motivated by religious belief is essential to the protection of rights guaranteed by the Free

24

Exercise Clause. This principle underlying the general applicability requirement has parallels in our First Amendment jurisprudence.

Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 543 (1993) (citing

Cohen v. Cowles Media Co., 501 U.S. 663, 669-670 (1991); University of Pennsylvania

v. EEOC, 493 U.S. 182, 201 (1990); Minneapolis Star & Tribune Co. v. Minnesota

Comm’r of Revenue, 460 U.S. 575, 585 (1983); Larson v. Valente, 456 U.S. 228, 245-

246 (1982); and Presbyterian Church in U.S. v. Mary Elizabeth Blue Hull Memorial

Presbyterian Church, 393 U.S. 440, 449 (1969)).

In Lukumi Babalu Aye, the Court rejected legislation that, it held, targeted the

Santeria religion. Although the text of the ostensible “animal cruelty” ordinance made no

reference to that particular religion – indeed, the legislation made no reference to religion

at all – the Court looked beyond the four corners of the text, considered the history and

operation of the law, and found that it targeted Santeria. “It becomes evident that these

ordinances target Santeria sacrifice when the ordinances’ operation is considered. Apart

from the text, the effect of a law in its real operation is strong evidence of its object.” Id.

at 535. Because the law was overbroad, the Court held it violated the First Amendment.

Similarly, in Minneapolis Star & Tribune, the Court struck down a special use ink

and paper tax that singled out the press and targeted a small group of newspapers. “By

creating this special use tax, which, to our knowledge, is without parallel in the State’s

tax scheme, Minnesota has singled out the press for special treatment.” 460 U.S. at 582.

The danger of such a tax was manifest:

When the State singles out the press, though, the political constraints that prevent a legislature from passing crippling taxes of general application are weakened, and the threat of burdensome taxes becomes acute. That threat can operate as effectively as a censor to check critical comment by

25

the press, undercutting the basic assumption of our political system that the press will often serve as a restraint on government.

Id. at 585.

The Court continued, “[T]he goal of the regulation is not unrelated to suppression

of expression . . . . [S]uch a goal is presumptively unconstitutional.” Id. Because

“Minnesota has offered no satisfactory justification for its tax on the use of ink and paper,

the tax violates the First Amendment.” Id. at 593, see also, City of Cincinnati v.

Discovery Network, 507 U.S. 410, 431 (1993) (affirming that because newsracks

“continue to play a significant role in the dissemination of protected speech,” categorical

ban on newsracks distributing commercial handbills “cannot be squared with the dictates

of the First Amendment.”).

While it is true that the provisions of the Code challenged by plaintiffs do not

make specific reference to graffiti art or artists, it is equally true that the Code “is not

unrelated to suppression of expression.” Minneapolis Star & Tribune, 460 U.S. at 585.

To the contrary, the avowed purpose of the Code is to limit expression, albeit expression

applied in a manner that defaces or damages property. To the extent it limits a particular

form of expression (graffiti art) or a class of people engaged in such expression (young

graffiti artists, including adults) it must, therefore, be considered a “presumptively

unconstitutional” content-based restriction. Id. at 593; see also City of Renton v.

Playtime Theaters, Inc., 475 U.S. 41, 46-47 (1986) (“This Court has long held that

regulations enacted for the purpose of restraining speech on the basis of its content

presumptively violate the First Amendment.”); Buckley v. Valeo, 424 U.S. 1, 18 (1976)

(only regulations which do not discriminate among speakers or ideas are content neutral);

Hobbs v. County of Westchester, 397 F.3d 133, 150 (2d Cir.), cert. denied, ___ U.S. ___,

26

126 S. Ct. 340 (2005) (“In the analysis of whether a regulation is content-based or

content-neutral, the ‘principal inquiry . . . in speech cases generally and in time, place, or

manner cases in particular, is whether the government has adopted a regulation of speech

because of disagreement with the message it conveys.’”) (quoting Ward, 491 U.S. at

791). There is no question at all that defendants Bloomberg and Vallone “disagree[] with

the message” conveyed by graffiti artists. The Code was carefully crafted to limit a

particular form of artistic and political expression by particular persons.4

2. Strict scrutiny.

The applicable standard in this case is strict scrutiny. “As a safeguard against

government censorship, we consider ‘regulations of speech based on its content [to be]

presumptively invalid,’ upholding such regulations only if they withstand strict scrutiny.”

Mastrovincenzo, 435 F.3d at 98 (quoting Hobbs, 397 F.3d at 148). See also Eclipse

Enters. v. Gulotta, 134 F.3d 63, 67 (2d Cir. 1997) (applying strict scrutiny test to

ordinance regulating sale of crime trading cards). The test under strict scrutiny is

whether the content-based restriction “serves a compelling governmental interest, is

necessary to serve the asserted [compelling] interest, is precisely tailored to serve that

interest, and is the least restrictive means readily available for that purpose.” Hobbs, 397

F.3d at 149 (quoting Boos v. Barry, 485 U.S. 312, 321 (1988) and R.A.V. v. City of St.

Paul, 505 U.S. 377, 395 (1992)) (brackets in R.A.V.).

4 Graffiti art has an unmistakable, inherent element of political speech. “The First Amendment would be a weak reed indeed if the utterance of such expressions could be banned from the City's streets because, in the Mayor's view, “It’s trying to encourage people to do something that's not in anybody’s interest.” Rutenberg, supra. Such heavy-handed censorship would, moreover, fall particularly hard on artists, who frequently revel in breaking conventions or tweaking the powers that be.” Ecko, 382 F.Supp.2d at 630. The Supreme Court has noted that the First Amendment has its “fullest and most urgent application” in the case of regulation of the content of political speech. Brown v. Hartlage, 456 U.S. 45, 53 (1982).

27

The ordinance fails each of the four prongs of the test – perhaps the reason

Councilman Vallone admitted that the Code “push[es] the envelope.” Taking them in the

order listed by the Hobbs court, the first test is whether the restriction on sale and

possession of spray paint and markers “serves a compelling governmental interest.” Id.

The City’s asserted compelling interest is to control and limit the amount of

illegal graffiti in the City of New York. Plaintiffs concede that the City has a compelling

interest in controlling illegal graffiti, that is, graffiti applied to property without the

permission of the owner, or graffiti that causes property damage. See, e.g., definition of

graffiti in New York Penal Law § 145.60.

Where plaintiffs part company with defendants, though, is where defendants take

the next, giant, unsupported leap in their reasoning: In the Mayor’s and Councilman

Vallone’s view, prohibiting plaintiffs and all under-21 year olds from buying or

possessing spray paint and markers, on pain of arrest and criminal prosecution, “serves”

the City’s interest in controlling illegal graffiti.

There is no evidence to support that proposition. No study is referenced in the

report issued by the city Council suggesting that so limiting sale and access of spray paint

will ameliorate the city’s graffiti ills. See Perez Dec. at Exhibit 3 (Report of the

Governmental Affairs Division, Committee on Public Safety, Peter F. Vallone, Jr.,

Chair). The Report recounts the applicable laws under the Administrative Code (pp. 1-

2); under New York state law (pp. 2-3) and the provisions of the proposed amendments

(p. 3). It then provides the specific text of the amendments (pp. 4-6).

There are no findings. There are no facts. There are no studies or statistics cited

suggesting that the more under-21 year olds are prohibited from buying or possessing

28

spray paint, the less illegal graffiti will be made. Under-21 year olds in New York City

are smart enough to lawfully evade the Code’s age limitation on purchase by simply

asking their parents, relatives and friends to buy spray paint for them. There is no

summary of testimony adduced at any hearing. The “Report” does not even state that in

so amending the law, the City expects the amount of illegal graffiti will decrease. See id.

Nor does the “Combating Graffiti” booklet distributed by the police department

explain how limiting the sale and possession of spray paint and markers to people under

the age of 21 will lead to any measurable benefit. The booklet does provide four

examples of successful anti-graffiti programs that do not involve the wholesale

suspension of First Amendment rights: community action, targeted enforcement, youth

involvement and utilization of civil and criminal remedies. See Perez Dec. at Exhibit 6,

p. 2. To the extent the booklet makes limited reference to statistical evidence, it would

appear to undermine the amendments: “Statistics reveal that graffiti is not just committed

by juveniles, adults have also been apprehended.” Id. at 4.

According to the Supreme Court in Turner Broadcasting Sys., Inc. v. FCC, 512

U.S. 622, 664 (1994),

When the Government defends a regulation on speech as a means to . . . prevent anticipated harms, it must do more than simply posit the existence of the disease to be cured. It must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way.

(emphasis added). See also Eclipse, 134 F.3d at 67 (“government must present

substantial supporting evidence in order for a regulation that threatens speech to be

upheld.”).

29

The Eclipse court rejected, on First Amendment grounds, an ordinance that

limited the sale of crime trading cards that was supported by little more than the Nassau

County Executive’s claimed “experience, knowledge and common sense.” Id. “[W]e do

not find support in the record here for the conclusion that a prohibition on the sale of

crime trading cards is a necessary or effective way to serve the compelling state interests

articulated by [Nassau County].” Id. at 67-68. Notably, the “common sense”

justification rejected by the Second Circuit in Eclipse is the precise justification raised by

the City here. See Mayor Bloomberg’s press release: “These three bills are

commonsense measures that will help fight graffiti and keep our city clean and

beautiful.” Perez Dec. at Exhibit 1, p. 13.

On the other hand, there appears to have been absolutely no consideration of the

pernicious effects this statute would work upon the type of legitimate, protected artistic

expression engaged in by people like plaintiffs. The reason is that defendants cannot, or

at least will not, distinguish between illegal graffiti affixed by vandals without

authorization, and legitimate graffiti art created by artists and students. Councilman

Vallone offensively commingles graffiti artists with vandals, dismissively branding all of

them “punks” in the press, whether they are commissioned to adorn a billboard for Sony,

or deface a highway overpass. Mayor Bloomberg cavalierly dismisses graffiti art as

nothing more than vandalism, property damage and mischief. “This is not really art or

expression, this is, let’s be honest about what it is: It’s trying to encourage people to do

something that’s not in anybody’s interest.” Attempts to conduct public art exhibitions

transmogrify into political footraces to see who can issue the fastest press release or hold

the largest press conference vilifying an entire medium of expression and belittling those

30

who create and admire it. In short, the amendments to the Code are a natural extension of

defendants’ personal, subjective and well-chronicled animus toward the art form and the

artists who create it.5

The second prong under Hobbs is whether the regulation “is necessary to serve

the asserted [compelling] interest.” Hobbs, 397 F.3d at 149 (internal quotation marks and

citation omitted) (brackets in the original). As mentioned above, there is no evidence to

support the proposition that by limiting under-21 year olds from purchasing or possessing

spray paint, there will be any appreciable decrease in the amount of illegal graffiti made.

The regulation cannot be “necessary” if there is no factual predicate to believe it will

work.

Additionally, the City has an abundance of tools at its disposal to deal with what it

contends are the terrible social ills of illegal graffiti. To begin with, there are the various

provisions of the New York State Penal Law. If the possibility of being charged with a D

or E felony under state law will not dissuade an under-21 year old from making illegal

graffiti, it is foolhardy to believe that the threat of a violation or misdemeanor under a

local ordinance will. Even if the Court struck down the entire Administrative Code

regarding spray paint, its not as if the City has no recourse. Much of the Code simply

5 Plaintiffs acknowledge that the City has at least some authority to regulate the sale of spray paint and markers. For example, the City can subject the sale of spray paint or markers to sales tax without violating the Constitution. See, e.g., Minneapolis Star & Tribune, 460 U.S. at 581 (noting that it is “beyond dispute that the States and the Federal Government can subject newspapers to generally applicable economic regulations without creating constitutional problems.”). The City can impose reasonable restrictions on the display or storage of spray paint, such as the one presently in place. See N.Y.C. Admin Code § 10-117 (d) (purveyors of spray paint and markers in New York City can display “only facsimiles . . . . containing no paint [or] ink.”); accord, Sherwin-Williams v. City & County of San Francisco, 857 F.Supp. 1355, 1372 (N.D. Cal. 1994) (approving city ordinance that prohibited storage or display of spray paint in areas accessible to the public without employee assistance because “[t]his type of retail restriction does not implicate speech or expressive conduct.”). What the City cannot do, however, is what it has done here: Enact legislation that “reaches a substantial amount of constitutionally protected conduct.” Boos, 485 U.S. at 329.

31

parrots New York’s Penal Law anti-graffiti provisions, which do not impact the First

Amendment at all.

The Administrative Code has enacted a reward system for reporting illegal

graffiti. The NYPD has produced a “REWARD” poster to advertise the policy. The

NYPD has a Vandals Task Force policing areas and fighting the crime. None of these

programs threaten or abridge legitimate artistic expression, either.

The NYPD has distributed a booklet to businesses and communities devoted to

combating graffiti. It suggests ways of coping with the problem, including reporting

graffiti, filing police reports, abating the graffiti quickly, suggesting technologies “used to

prevent and remove” graffiti such as the use of recycled plastic fencing, non-stick

coatings and wax coatings, lists contact information to facilitate graffiti reports, and even

directs interested people to places where free cleaning supplies, brushes, paint and crime

victim money can be obtained. See Perez Dec. at Exhibit 7, pp. 7-10.

In short, given the available alternatives – none of which compromise protected

expression – there is no indication that the interests of the City “would be achieved less

effectively absent the regulation.” Ward, 491 U.S. at 799.

The third test under Hobbs is whether the Code “is precisely tailored to serve that

interest.” Hobbs, 397 F.3d at 149. Here, the Code is at its most vulnerable from a

constitutional standpoint. Far from being “precisely tailored,” the Code is a textbook

example of an overbroad regulation.

“In addressing . . . a facial overbreadth challenge, a court’s first task is to

ascertain whether the enactment reaches a substantial amount of constitutionally

protected conduct.” Boos, 485 U.S. at 329. Consider the text of the amended Code:

32

No person under twenty-one years of age shall possess an aerosol spray paint can, broad tipped indelible marker or etching acid on the property of another or in any public building or upon any public facility.

N.Y.C. Admin. Code §10-117 (c-1).

The plain language of the Code criminalizes possession of spray paint and

markers by any under-21 year old anywhere outside of his or her own home. As soon as

they leave home, they are, by definition, “on the property of another.” Thus, defendants

have managed to criminalize, for example, craft projects involving markers or spray paint

at houses of worship or the local YMCA or YWHA; Cub Scouts spray painting Pinewood

Derby cars or Boy Scouts spray painting Klondike Derby sleds on the property of a local

school; teenage girls coloring jeans with broad tipped markers at their friend’s house; and

virtually all graffiti art at the School of Visual Arts (as most college students are under

the age of 21).

Fundamentally, the Code limits artistic expression by young artists who are not

criminals, but need spray paint and markers to further their education, to work, and to

speak. “The fact that I cannot purchase spray paint or broad tipped markers legally limits

my ability to express myself creatively. It puts restrictions on something that shouldn’t

have restrictions.” Vincenty Affidavit at ¶6 (Perez Dec. at Exhibit 8). “The fact that I

cannot purchase spray paint takes away an avenue of expression from me. It stifles my

artistic freedom. I simply wish to purchase spray paint so that I can use it lawfully as an

artist.” Dumont Affidavit at ¶ 6 (Perez Dec. at Exhibit 9). “I wish to purchase aerosol

spray paint cans and broad tipped indelible markers so that I may express myself

artistically and because my employment involves the use of spray paint.” Schiano

33

Affidavit at ¶ 8 (Perez Dec. at Exhibit 10). Every plaintiff is unquestionably burdened by

this ordinance. None are looking to run out and “tag” a building, wall or subway train.6

In Boos, the Court struck down a sign display law on the grounds of overbreadth.

“[T]he availability of alternatives . . . amply demonstrates that the display clause is not

crafted with sufficient precision to withstand First Amendment scrutiny. . . . it is not

narrowly tailored; a less restrictive alternative is available.” Boos, 485 U.S. at 329 . See

also Lukumi Babalu Aye, 508 U.S. at 538 (“We also find significant evidence of the

ordinances’ improper targeting of Santeria sacrifice in the fact that they proscribe more

religious conduct than necessary to achieve their stated ends.”); Watchtower Bible and

Tract Society of New York v. Village of Stratton, 536 U.S. 150, 168 (2002) (anti-

solicitation statute struck down on grounds of overbreadth and being not tailored to

Village’s stated interests: “that interest provides no support for its application to

petitioners [Jehovah’s Witnesses], to political campaigns, or to enlisting support for

unpopular causes.”); Perez Dec. at Exhibits 8 through 13 (plaintiffs’ affidavits explaining

how their expression is limited by the Code, and how they fear arrest, prosecution and

persecution for making artwork or carrying art supplies on their persons).

Certainly, the amendments to the Code can be more narrowly drawn. For

example, sections (c) and (c-1) can be eliminated altogether. Illegal graffiti will still be

illegal graffiti. Alternatively, the Code can be drawn to apply only to persons purchasing

6 “Tagging” is the term for writing a stylized signature on an object. The signature is called a “tag,” and the person who makes it is a “tagger.” The term should not be confused with related terms such as “bombing” (painting many surfaces) or “bombers”; a “piece” (from masterpiece, the term for a large mural); a “throw-up,” (which takes less time to create than a piece, to decrease the likelihood of getting “busted”); or a “burner” (a very large piece that takes up an entire wall). Definitions are derived from Wikipedia (http://en.wikipedia.org/wiki/Graffiti). Should the Court, after reading this memorandum, be inclined to pick up a can of spray paint to create a piece, throw-up or burner on a canvas, it may be called a “toy” – the reference experienced graffiti artists use for inexperienced or new writers. Id. Forewarned is forearmed.

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or possessing spray paint or broad tipped markers for the purpose of “mak[ing] graffiti of

any type on any building, public or private, or any other property real or personal owned

by any person, firm or corporation or any public agency or instrumentality, without the

express permission of the owner or operator of said property.” New York P.L. § 145.60.

It can carve out artistic, expressive and educational exemptions. It can eliminate arbitrary

and meaningless age-based restrictions, which accomplish nothing except frustrating

young artists and inhibiting their creative development.

Finally under Hobbs, the test requires analysis of whether the Code “is the least

restrictive means readily available for that purpose.” Hobbs, 397 F.3d at 149. Here, too,

the Code is at its most vulnerable to constitutional attack, for the reasons already stated.

The Penal Law and N.Y.C. Admin. Code § 10-117 (a) provide effective tools for

managing the City’s “compelling interest” in protecting property owners from illegal

graffiti. As Judge Rakoff wrote,

No one suggests, of course, that the actual painting of graffiti on subway cars is to be condoned. Nor can it be denied that this crime can have a “faddish” aspect that may make it difficult to deter. The constitutionally permissible solution is to prosecute those who actually commit this crime to the full limits of the law; but not to ban those who, for artistic reasons or otherwise, choose to make use of this motif, in mock form, as the mode of their expression.

Ecko, 382 F.Supp.2d at 630.

Another means of measuring whether the challenged provisions of the Code are

“the least restrictive means readily available” to combat illegal graffiti is to compare

them to other laws enacted for the same purpose. A natural starting point is New York

State law, which does not place restrictions – age or otherwise – on the sale of spray paint

or markers. Nor are there restrictions on possession of such items, except if the

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possession is “under circumstances evincing an intent to use same in order to damage []

property.” The New York legislature apparently felt there was no need to resort to

targeting people of a particular age, or art of a particular style, to further its objectives of

combating illegal graffiti and protecting property.

Outside of New York state, on a local level, the New York City Code has the

singular distinction of being the only known “under 21 year old” municipal, county or

state spray paint law in the nation. See Perez Dec. at ¶¶ 3-4 (explaining how counsel for

plaintiffs reviewed over two dozen anti-graffiti laws, including major metropolitan areas

such as San Francisco and Chicago, none of which so limit sale or possession) and Perez

Dec. at Exhibit 16 (samples of ordinances in Las Vegas, NV, District of Columbia, Los

Angeles, CA, Henderson, NV, Reno, NV, Clark County, NV, Dade County, FL,

Honolulu, HI, Wauwatosa, WI, Union Gap, WA, Laguna Beach, CA, Newport Beach,

CA, Riverside County, CA, Carpentersville, IL, Denver, CO, Coos Bay, OR).7 None of

these ordinances, codes or laws prohibit the sale of spray paint or markers to anyone

under 21; none criminalize mere possession of such items, either, unless the intent is to

make illegal graffiti (similar to New York State law and an unchallenged provision of

New York’s Administrative Code, § 10-117(a)). The fact that New York City’s “anti-

graffiti” laws cover more people and more circumstances than similar laws in other

states, counties and municipalities is a meaningful measure of their overbreadth and lack

of constitutional restraint.

In sum, the Code prohibits legitimate, artistic expression. Dozens of other cities

and even New York state manage to address illegal graffiti without criminalizing artistic

7 Plaintiffs are in no way conceding the constitutionality of these ordinances; they make reference to them for the limited purpose of illustrating less restrictive laws.

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expression. As such, the Code is not the least restrictive means of controlling illegal

graffiti and fails under the final prong of the Hobbs test.

Lastly, even under the intermediate scrutiny test (see Mastrovincenzo, 435 F.3d at

99-100, holding that Code was “clearly a content-neutral speech restriction because it

serves purposes unrelated to the content of [the regulated] expression”) – which plaintiffs

submit is the wrong test in this case – the Code still fails for the reasons already stated.

The Code places an unreasonable burden on plaintiffs’ artistic expression; it is not the

case that the City’s interests “would be achieved less effectively absent the regulation”;

and “a substantial portion of the burden on speech does not serve to advance” the goals of

the Code. Mastrovincenzo, 435 F.3d at 100. Nor is the regulation narrowly tailored.

And certainly, the Code is not a valid “time, place or manner” restriction, for it prohibits

all possession of spray paint and markers by all under-21 year olds, at all times, in

virtually all places, under penalty of arrest and prosecution. Id. Nor does the Code leave

open alternative channels of communication, as it is impossible for graffiti artists to

express themselves without spray paint and markers. Id.

D. The Affirmative Defenses Do Not Cure The Code’s Infirmities. Constitutionally, They Are Too Little, Too Late.

The Code provides two affirmative defenses:

(c-2) When a person is found to possess an aerosol spray paint can, broad tipped indelible marker or etching acid while on the property of another or in any public building or upon any public facility in violation of subdivision c-1 of this section, it is an affirmative defense that:

(1) the owner, operator or other person having control of the property, building or facility consented to the presence of the aerosol spray paint can, broad tipped indelible marker or etching acid; or

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(2) such person is traveling to or from his or her place of employment, where it was or will be used during the course of such employment and used only under the supervision of his or her employer or such employer’s agent.

Amended N.Y.C. Admin. Code § 10-117 (c-2).

Because the City has styled these as “affirmative defenses,” an under-21 year old

artist (or any other under-21 year old) in legitimate possession of a can of spray paint or

marker must be arrested, go through the system, be prosecuted, attend court on a number

of occasions, demand a trial, sit through the People’s case, and then – and only then – can

she present a defense to possession. This hurdle is unreasonable, unnecessary, and erects

yet another barrier to legitimate artistic expression. There is no reason that the words

“affirmative defense” cannot be substituted with the words “exemption” or “exception.”

Consider plaintiff Vincenty. She regularly travels on the subway with cans of

spray paint in her backpack, or markers in her pocket. She has never committed a graffiti

crime. She uses these materials solely to express herself artistically. Indeed, her

education has been impeded, because she creates exclusively graffiti art with spray paint

and markers.

The Code’s affirmative defenses are rightly offensive to her. She is not

possessing spray paint to commit a crime. But should she be stopped in a subway station

and have her backpack checked – or should a marker be sticking out of her pocket as was

the case with Gino Castignoli (Perez Dec. at Exhibit 13) – there would be probable cause

for her arrest on the spot. That is simply unacceptable under the First Amendment (it is

also offensive to the basic precepts of the Fourth Amendment). As plaintiffs establish

above, a plethora of more reasonable, less restrictive controls can be implemented to

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allow for her artistic expression, while controlling illegal graffiti affixed to property

without permission.

Consider plaintiff Schiano, the union painter’s apprentice. He routinely uses

spray paint on the job. Part of his responsibilities are to purchase spray paint, which he

cannot do. If he is walking home from his job, with spray paint on his person that he just

applied to a door on a job, he can be arrested. Indeed, if he is on the job, he still can be

arrested and only later avail himself of the affirmative defense. Again, a plethora of more

reasonable, less restrictive controls can be implemented to allow for his work-related

spray paint possession, while controlling illegal graffiti.

Also troubling is the language of c-2 (2), which provides an affirmative defense to

plaintiff Schiano if he “was or will be us[ing spray paint] during the course of such

employment and used only under the supervision of his or her employer.” What if

plaintiff Schiano were self-employed? What if his employer, too, is under the age of 21?

What if plaintiff Vincenty decides to create a line of graffiti neckties to offer for sale to

stylish or artistically-minded members of the bar? These examples illustrate the

hollowness and inadequacies of the affirmative defenses, and lend further support to the

punitive and targeted nature of the challenged provisions of the Code. In short, the

protections they provide to legitimate possession and use are too little and too late for the

aggrieved, incarcerated artist or painter.

E. Plaintiffs Are Likely to Prevail on Their Claim That the Code Violates Their Equal Protection Rights.

The Code imposes burdens on young graffiti artists, but not on young artists

involved in expression that does not involve the use of spray paint or markers. The Code

imposes burdens on 18, 19 and 20 year old painters who make their living like plaintiff

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Schiano, or aspiring professional artists like plaintiffs Vincenty and Schiano, but not on

21, 22 or 23 year olds engaged in the same conduct. For these reasons, the challenged

provisions of the code violate plaintiffs’ rights under the Equal Protection Clause of the

Fourteenth Amendment.

“The ‘Equal Protection Clause requires that statutes affecting First Amendment

interests be narrowly tailored to their legitimate objectives.’” National Awareness

Found. v. Abrams, 50 F.3d 1159, 1167 (2d Cir. 1995) (quoting Police Dep’t of the City of

Chicago v. Mosely, 408 U.S. 92, 101 (1972)). An equal protection claim must be

predicated on differential treatment of similarly situated classes of people. City of

Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985). Under the Equal

Protection Clause, the Supreme Court has stated that “when government regulation

discriminates among speech-related activities in a public forum, the Equal Protection

Clause mandates that the legislation be finely tailored to serve substantial state interests,

and the justifications offered for any distinctions it draws must be carefully scrutinized.”

Carey v. Brown, 447 U.S. 455, 461-62 (1980).

Plaintiffs are similarly situated to artists and painters who use materials not

including spray paint and markers. They paint, they sell to people interested in artwork,

they create t-shirts and similar apparel, and they compete for the same billboards. The

only difference is that persons who express themselves artistically with paints other than

spray paint are not subject to the Administrative Code provisions challenged here.

Plaintiffs Schiano and Vincenty are the best examples. Schiano is at a decided

disadvantage vis-à-vis 21 and 22 year old painter’s apprentices, who are able to procure

all supplies. Plaintiff Vincenty, who wishes to sell her artwork, is at a competitive

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disadvantage to under-21 year olds who uses narrow markers or other paints, and at a

disadvantage as compared to graffiti artists who are 21 and above.

In addition, the amended code provisions challenged herein are not narrowly or

finely tailored (see Point I(C)(2) above). For these reasons, the challenged amendments

to Code violates plaintiffs’ rights under the Equal Protection Clause.

CONCLUSION

For the foregoing reasons, the Court should grant plaintiffs’ application and issue

an Order (1) declaring the challenged provisions of the Code (§§ 10-117 (c) and (c-1))

violative of the United States Constitution; and (2) enjoining defendants from enforcing

the challenged provisions; and grant such further relief as is appropriate and warranted.

Dated: New York, New York April 24, 2006

______________________________

DANIEL M. PEREZ [DP-0032] Kuby & Perez LLP 119 West 23rd Street, Suite 900 New York, New York 10011 (212) 529-0223 Attorneys for Plaintiffs