From an order this Monday by Judge Kevin Castel (S.D.N.Y.) In Rusfeldt v. City of New York (just an excerpt of a long opinion):
Pastor Aden Rusfeldt brings claims arising from his interactions with and arrest by officers of the New York City Police Department ("NYPD") that occurred while he was holding up a large sign on a long pole reading "Fags and Whores Burn in Hell" at the June 27, 2021 PrideFest in Manhattan….
The First Amendment protects Rusfeldt's right to express his message and the Pride festivalgoers' right to express their hostility to his message. The expressive elements of Rusfeldt's hateful message and the festivalgoers' expressed antipathy to the message do not require law enforcement to turn a blind eye to the potential that the physical proximity of the two groups could lead to unlawful behavior. But the permissible means to mitigate the potential for escalation cannot be the removal of a person engaging in protected speech merely to appease others offended by his expressive activity. Provocations to immediate violence may change the calculus.
When police officers learned that objects and liquids had been thrown by members of the crowd of Pride festivalgoers in the direction of Rusfeldt, they stepped into action. They could have ordered the crowd dispersed or arrested an offender, if the person was observed and could be identified and apprehended. Police officers selected a different response, at first standing in between Rusfeldt's group and the crowd and then moving metal barriers into place between the two groups, which did not impair the ability of Rusfeldt or the festivalgoers to deliver their messages.
Law enforcement also had concerns that Rusfeldt was on the sidewalk with a long pole holding his message aloft, potentially blocking the sidewalk and presenting a hazard to others. Police officers told Rusfeldt to move—or, as defendants now characterize it, ordered him to disperse. Rusfeldt was ultimately arrested. The "Complaint/Information" for the violation of at least one of New York's disorderly conduct provisions (N.Y. Penal Law § 240.20(7)), which was affirmed by the officer on the date of the arrest, noted that Rusfeldt was "in possession of a large metal pole. Defendant was asked to relinquish the pole and refused to do so." The charges were later dismissed without any court appearance.
