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Defendants Howard Safir and the City of New York appeal from the grant of a preliminary injunction prohibiting them from interfering with a “photo shoot”of seventy-five to one hundred nude models arranged in an abstract formation that plaintiff Spencer Tunick proposes to conduct between 5:30 and 6:30a.m. on a Sunday morning in a residential Manhattan neighborhood. Defendants contend that they cannot permit the photographic session to proceedbecause New York law criminalizes public nudity. Plaintiff maintains that (1) applicable state law does not prohibit his proposed activity and (2) theprevention of the proposed taking of photographs by the physical intervention of the police would be an unconstitutional prior restraint. This Court’s stay of the district court’s injunction is dissolved and the case is remanded for further proceedings in accordance with this opinion. OPINION On July 13, 1999, the plaintiff Spencer Tunick filed a complaint in the Southern District of New York seeking an injunction preventing the City of New Yorkand its Police Commissioner, Howard Safir, (collectively, the “City”) from interfering with a “photo shoot” that Tunick proposed to conduct on Sunday, July18, 1999. Tunick, an internationally recognized photographer, planned to photograph seventy-five to one hundred nude models arranged in an abstractformation shortly after dawn on a residential street in lower Manhattan. He submitted evidence from which the district court (Harold Baer, Jr., Judge)concluded that the New York City police were likely to arrest Tunick and his models before the photographic session could be completed. On July 16, thedistrict court preliminarily enjoined the City from interfering with the session. On July 17, 1999, the day after the district court’s issuance of the preliminary injunction and the day before the planned photographic session, athree-judge panel of this Court stayed the preliminary injunction, ordering that the appeal be fully briefed and argued on an expedited basis. Argument washeard on September 13, 1999. On appeal, the City argued solely that New York state law, which criminalizes public nudity and the promotion thereof, compelled it to stop the proposedphotographic session. See N.Y. Pen. Law ��245.01, 245.02. Tunick countered that the photographic session is exempt from the ban on public nuditybecause ��245.01 and 245.02 do “not apply to . . . any person entertaining or performing in a play, exhibition, show, or entertainment,” id., and thatarresting him and his models before he had an opportunity to take his photographs would violate the First Amendment. On March 24, 2000, we certified three questions regarding ��245.01 and 245.02 to the New York Court of Appeals. See Tunick v. Safir, 209 F.3d 67,2000 WL 342706, 2000 U.S. App. LEXIS 5048 (Mar. 24, 2000).* Judge Calabresi concluded that certification was appropriate pursuant to a six-part testdescribed in detail in his opinion. Id. at ___, 2000 WL 342706, at *16, 2000 U.S. App. LEXIS 5048, at *6. Judge Sack disagreed, reasoning that because the photographic session was expressive activity and the threatened arrest of Tunick and his modelswould take place before it was completed, the arrest would constitute a prior restraint on expression. Id. at ___, 2000 WL 342706, at *27, 2000 U.S. App.LEXIS 5048, at *87. Inasmuch as the session was neither clearly illegal under applicable law nor asserted to be contrary to a valid licensing ordinance,the prior restraint was in his view unconstitutional and the certification proposed by Judge Calabresi was inappropriate because of the delay inherent inthe certification process. Id. at ___, 2000 WL 342706, at *29-*30, 2000 U.S. App. LEXIS 5048, at *90-*94. Judge Sack nonetheless concurred in thejudgment, concluding that as a result of the differences in views among the panel members, certification of the questions to the New York Court ofAppeals was the speediest practicable method for resolving Tunick’s assertion of rights. Id. at ___, 2000 WL 342706, at *30, 2000 U.S. App. LEXIS 5048,at *95. Judge Van Graafeiland, in a dissent filed separately on April 13, 2000, maintained that the appeal should have been dismissed as moot. Id. at ___, 2000WL 342706, at *30, 2000 U.S. App. LEXIS 5048, at *96-*108. On May 12, 2000, the New York Court of Appeals, by per curiam opinion, Tunick v. Safir, No. 86, __ N.Y.2d ___ , ___ N.Y.S.2d ___, ___ N.E.2d ___, 2000WL _____, 2000 N.Y. Lexis 886 (May 12, 2000), while “underscor[ing] the great value in New York’s certification procedure where Federal appellatecourts or high courts of other States are faced with determinative questions of New York law on which this Court has not previously spoken,” id. at ___,2000 WL _____, at *__, 2000 N.Y. Lexis 886, at *5, declined to accept certification “in the mutual interest of expeditious resolution of the preliminaryinjunction/prior restraint issue,” id. at ___ , 2000 WL _____, at *__, 2000 N.Y. Lexis 886, at *4-*5. We now hold that in light of Tunick’s showing of irreparable injury and the clear likelihood of Tunick’s success on the merits, it was not an abuse ofdiscretion for the district court to grant the preliminary injunction. See Beal v. Stern, 184 F.3d 117, 122-23 (2d Cir. 1999). We therefore dissolve the stayentered on July 17 and remand the case to the district court with instructions that (unless between the date of the original preliminary injunction and thedate on which the district court acts it has become clearly illegal for Tunick to take the photographs in accordance with his plans) the court (a) fix a date,in consultation with the parties, for the taking of the photographs, and (b) re-enter the injunction prohibiting, for a limited period of time early in the morningon a non-business day, the City of New York and its agents from arresting Tunick or his models in connection with the taking of the photographs, orotherwise interfering with Tunick or his models in the taking of the photographs, until the taking of the photographs is completed in accordance with thecourt’s order. The district court shall, in its discretion, include in the injunction such other conditions as it deems appropriate to ensure a minimal intrusionon the neighborhood and its residents consistent with the taking of the photograph or photographs in issue.
Tunik v. Safir United States Court of Appeals for the Second Circuit Argued: September 13, 1999 Decided: May 19, 2000 Docket No. 99-7823 SPENCER TUNICK, Plaintiff-Appellee, – v. - HOWARD SAFIR, in his official capacity as the Police Commissioner of the City of New York, and the CITY OF NEW YORK, Defendants-Appellants. Before: VAN GRAAFEILAND, CALABRESI, and SACK, Circuit Judges. Counsel for Appellee: Ronald L. Kuby, Daniel M. Perez, Arthur Eisenberg, Norman Siegel, and Christopher Dunn Counsel for Appellant: Stephen J. McGrath, Michael D. Hess, Leonard Koerner, and Alan Beckoff
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