United Veterans Memorial & Patriotic Ass'n of the City of New Rochelle v. City of New Rochelle

15-120
United Veterans Memorial and Patriotic Association v. City of New Rochelle
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
9th day of September, two thousand fifteen.
Present: GUIDO CALABRESI,
CHESTER J. STRAUB,
ROSEMARY S. POOLER,
Circuit Judges.
_____________________________________________________
UNITED VETERANS MEMORIAL AND PATRIOTIC ASSOCIATION
OF THE CITY OF NEW ROCHELLE, PETER PARENTE,
Plaintiffs-Appellants,
v. 15-120-cv
CITY OF NEW ROCHELLE, NOAM BRAMSON, individually and in his official capacity as
Mayor of the City of New Rochelle, BARRY R. FERTEL, individually and in his official
capacity as City Council Member of the City of New Rochelle, IVAR HYDEN, individually and
in his official capacity as City Council Member of the City of New Rochelle, SHARI B.
RACKMAN, individually and in her official capacity as City Council Member of the City of
New Rochelle, JARED R. RICE, individually and in his official capacity as City Council
Member of the City of New Rochelle, CHARLES B. STROME, III, individually and in his
official capacity as City Manager of the City of New Rochelle,
Defendants-Appellees.
_____________________________________________________
Appearing for Appellants: Erin Mersino, Thomas More Law Center (George W. Wright,
George W. Wright & Associates LLC, on the brief) Ann Arbor,
MI.
Appearing for Appellees: Eliza M. Scheibel, Wilson Elser Moskowitz Edelman & Dicker
LLP (Peter A. Meisels, Lalit K. Loomba, on the brief), White
Plains, NY.
Appeal from the United States District Court for the Southern District of New York (Siebel, J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the opinion and order of said District Court be and it hereby is
AFFIRMED.
United Veterans Memorial and Patriotic Association of the City of New Rochelle and
Peter Parente (collectively, “United Veterans”) appeals from the December 22, 2014 opinion and
order of the United States District Court for the Southern District of New York (Seibel, J.)
granting defendants’ motion to dismiss the second amended complaint. United Veterans Mem.
and Patriotic Ass’n of the City of New Rochelle v. City of New Rochelle, 72 F. Supp. 3d 468
(S.D.N.Y. 2014). We assume the parties’ familiarity with the underlying facts, procedural
history, and specification of issues for review.
The Supreme Court decided Walker v. Texas Division, Sons of Confederate Veterans,
Inc., 135 S. Ct. 2239 (2015) after the district court issued its decision. Walker concluded that a
specialty license plate program operated by the Texas Department of Motor Vehicles constituted
government speech. The Walker Court primarily applied a three-factor test: (1) the history of the
speech at issue; (2) a reasonable observer’s perception of the speaker; and (3) control. 135 S. Ct.
at 2248–50. The Court concluded that (1) license plates “long have communicated messages
from the States;” (2) license plates “are often closely associated in the public mind with the
State,” such that reasonable observers “interpret them as conveying some message on the
[State’s] behalf;” and (3) Texas has “effectively controlled” the content of the license plates by
virtue of exercising final approval authority. Id. (internal citations and alterations omitted).
Both parties to this appeal submitted briefing on the impact of Walker. We now affirm,
primarily for the reasons set forth in the district court’s well-reasoned opinion. As alleged by
United Veterans in the operative complaint, New York State conveyed the Armory to the City of
New Rochelle (the “City”) by a deed that requires that the property remain open for public use
“for park, recreation, street and highway purposes.” App’x at 23 ¶¶ 26–27. The complaint also
alleges that the City “generally granted United Veterans and its predecessor organizations the
right to display and maintain flags” on the flagpole located on the grounds of the Armory, which
are open and accessible to the general public. App’x at 23 ¶¶ 28, 30. We agree with the district
court that, based on the pleadings in the complaint, the flagpole was owned and controlled by the
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City, and the flags displayed on the flagpole constituted government speech. Moreover, the
flagpole was located in a public space used for park and recreation purposes, and a reasonable
observer would think the flags were presenting a message from the City. The City was well
within its rights to delegate to United Veterans the right to display and maintain flags on the
City-owned flagpole without creating a public forum of any sort, or relinquishing control of the
flags displayed. See Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 486 (2009). We find
nothing in Walker that requires revisiting the rationale underlying the district court opinion.
We have considered United Veterans’ remaining arguments and find them to be without
merit. Accordingly, the order of the district court hereby is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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