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, 228 F.3d 135

CALABRESI, Circuit Judge, concurs. SACK, Circuit Judge, concurs. . VAN GRAAFEILAND, Circuit Judge, dissents. PER CURIAM: 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 York and its Police Commissioner, Howard Safir, (collectively, the “City”) from interfering with a “photo shoot” that Tunick proposed to conduct on Sunday, July 18, 1999.

Tunick, an internationally recognized photographer, planned to photograph seventy-five to one hundred nude models arranged in an abstract formation 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, the district 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, a three-judge panel of this Court stayed the preliminary injunction, ordering that the appeal be fully briefed and argued on an expedited basis. Argument was heard 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 proposed photographic session. See N.Y. Pen. Law §§ 245.01, 245.02.

Tunick countered that the photographic session is exempt from the ban on public nudity because §§ 245.01 and 245.02 do “not apply to ... any person entertaining or performing in a play, exhibition, show, or entertainment,” id., and that arresting 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 (2d Cir.2000).

Judge Calabresi concluded that certification was appropriate pursuant to a six-part test described in detail in his opinion. Id. at 81-82. Judge Sack disagreed, reasoning that because the photographic session was expressive activity and the threatened arrest of Tunick and his models would take place before it was completed, the arrest would constitute a prior restraint on expression. Id. at 93-94.

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 in the certification process. Id. at 94-100. Judge Sack nonetheless concurred in the judgment, concluding that as a result of the differences in views among the panel members, certification of the questions to the New York Court of Appeals was the speediest practicable method for resolving Tunick’s assertion of rights. Id. at 96-100.

Judge Van Graafeiland, in a dissent filed separately on April 13, 2000, maintained that the appeal should have been dismissed as moot. Id. at 96-100. On May 12, 2000, the New York Court of Appeals, by per curiam, opinion, Tunick v.

Safir, 94 N.Y.2d 709, 709 N.Y.S.2d 881, 731 N.E.2d 597 (2000), while “under-scor[ing] the great value in New York’s certification procedure where Federal appellate courts 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 599, declined to accept certification “in the mutual interest of expeditious resolution of the preliminary injunction/prior restraint issue,” id. at 599.

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 of discretion 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 stay entered on July 17 and remand the case to the district court with instructions that (unless between the date of the original preliminary injunction and the date 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 morning on 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, or otherwise interfering with Tunick or his models in the taking of the photographs, until the taking of the photographs is completed in accordance with the court’s order.

The district court shall, in its discretion, include in the injunction such other conditions as it deems appropriate to ensure a minimal intrusion on the neighborhood and its residents consistent with the taking of the photograph or photographs in issue. JUDGE CALABRESI concurs in an opinion to follow. JUDGE SACK concurs for the reasons stated in his opinion of March 24, 2000, Tunick v. Safir, 209 F.3d 67, 89-100 (2d Cir.2000) (Sack, J., concurring in the judgment). JUDGE VAN GRAAFEILAND dissents in an opinion to follow. The three certified questions were:

(1) Whether a photographic shoot involving 75 to 100 nude bodies arranged in an abstract formation on a public street constitutes entertainment or performance in a “play, exhibition, show or entertainment” within the meaning of the exception to N.Y. Pen. Law § 245.01 and § 245.02.

(2) If the answer to the first question is yes, whether the exceptions to N.Y.Pen. Law § 245.01 and § 245.02 are limited to indoor activities. (3)If the answer to the first question is no, or if the answers to the first and second questions are both yes, whether N.Y. Pen. Law § 245.01 and § 245.02, so interpreted, are valid under the Constitution of the State of New York.