United States Court of Appeals, Second Circuit Assignment | Online Essays

United States Court of Appeals, Second Circuit.

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, Plaintiffs-Appellees, v. Michael R. BLOOMBERG, Mayor of the City of New York;  Peter F. Vallone, Jr., Chair, Committee on Public Safety, New York City Council, in their individual capacities;  and the City of New York, Defendants-Appellants.

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Docket No. 06-2106-CV.

Decided: February 01, 2007

Before:  KEARSE, SOTOMAYOR, and B.D. PARKER, Circuit Judges. Daniel M. Perez, New York, New York (David Pressman, Kuby & Perez, on the brief), for Plaintiffs-Appellees. Scott Shorr, Senior Corporation Counsel, New York, New York (Michael A. Cardozo, Corporation Counsel of the City of New York, Ronald E. Sternberg, on the brief), for Defendants-Appellants.

The present action arises out of a recent legislative attempt by defendant City of New York (“City”) to combat the widespread problem of graffiti vandalism, i.e., the unauthorized placement of graffiti on the property of another.   As amended in December 2005, the City’s Administrative Code (“Code” or “City Code”) prohibits the sale of, inter alia, aerosol spray paint containers and broad tipped indelible markers to persons under 21 years of age, see N.Y.C. Admin. Code § 10-117(c) (2006), and generally prohibits persons under the age of 21 from possessing such items on property other than their own, see id. § 10-117(c-1).   The present action was commenced in the United States District Court for the Southern District of New York in April 2006 by or on behalf of artists whose ages then ranged from 16 to 20, challenging the constitutionality of §§ 10-117(c) and (c-1) on the grounds that those subsections’ prohibitions with respect to spray paint and markers (a) violate plaintiffs’ First Amendment rights to freedom of expression, and (b) discriminate against plaintiffs on the basis of age in violation of their rights to equal protection.   Plaintiffs promptly moved for a preliminary injunction prohibiting defendants from enforcing those provisions during the pendency of the action.

The district court, George B. Daniels, Judge, granted the motion for a preliminary injunction to the extent of prohibiting the City from enforcing the spray paint and marker provisions of §§ 10-117(c) and (c-1) against young adults over the age of 18 but under the age of 21.  (Under New York law, see, e.g., N.Y. Dom. Rel. Law § 2 (McKinney 2006), and N.Y. Gen. Oblig.   Law § 1-202 (McKinney 2006), New York residents are adults at age 18.)   The court found, inter alia, that plaintiffs are likely to prevail on their claims that the challenged provisions violate their First Amendment and equal protection rights.   Defendants have appealed, contending principally that the district court erred in finding that plaintiffs are likely to prevail on the merits of their claims;  defendants also contend that plaintiffs failed to show that they would suffer irreparable injury in the absence of a preliminary injunction.   For the reasons that follow, we affirm the preliminary injunction on the basis of plaintiffs’ First Amendment claims.


For decades, the City has been confronted with a “growing problem of vandalism and public defacement by means of making unauthorized graffiti.”  (Complaint ¶ 26.)   In the City’s administrative code in 1985 (“1985 Code”), § 435-13.2, the predecessor of § 10-117, contained provisions that, inter alia, forbade any person to write, draw, or paint any inscription, figure, or mark on public or private property without the express permission of the owner or operator of the property, see 1985 Code § 435-13.2(a);  prohibited any person from carrying an aerosol spray paint can or a broad tipped indelible marker into any public building or other public facility with the intent to violate § 435-13.2(a), see 1985 Code § 435-13.2(b);  and prohibited the sale of such items to any person under the age of 18, see id. § 435-13.2(c);  see also New York State Laws of 1985, ch. 907, § 14 (renumbering City Code § 435-13.2 as § 10-117).

In December 2005, amendments to § 10-117 were adopted to expand former § 435-13.2(c)’s prohibitions by raising the age restriction on the sale of such items from 18 to 21 and by introducing a strict-liability provision that prohibits persons under the age of 21 from possessing such items in certain places, regardless of intent.

A. The Challenged Provisions of the City Code

The new or amended subsections that are challenged in this action provide as follows:

(c) No person shall sell or offer to sell an aerosol spray paint can, broad tipped indelible marker or etching acid to any person 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.

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