On 10 April 2021, the New York City Police Department launched a city-wide graffiti clean-up campaign. One of its first orders of business: the documented destruction of a mural titled Death From Above that allegedly had been in place on a Brooklyn wall with permission for over a decade. The New York City Police Department’s Commissioner described the clean-up campaign as “a great opportunity to continue to build trust and relationships in New York City”. Instead, it has spawned a putative class action lawsuit against the NYPD and the City of New York by Michael McLeer (a.k.a. Kaves), the artist whose bright Brooklyn mural was covered with opaque grey paint during the initial hours of the campaign – without any advance notice.

Notably, the suit was filed in the Eastern District of New York, the same district that decided the monumental 5Pointz case wherein a $6.75 million judgment was awarded to graffiti artists whose works were covered over without proper notice. McLeer’s experience appears to be similar to that of the 5Pointz artists in that respect. Also, McLeer has the benefit of being represented by Eisenberg & Baum, the same firm that represented the prevailing 5Pointz artists.

The removal of McLeer’s mural was memorialized with photographs posted on Twitter by the 84^th Precinct, using its handle @NYPD84Pct. The NYPD’s photographs give a clear visual of the progression on the day McLeer’s mural was destroyed: the twelve foot by thirty foot multi-dimensional artwork disappeared from the ground up under flat coats of rolled-on paint. Then, a proud group of volunteers and NYPD representatives posed together before the monochromatic wall at the corner of Bridge and York Streets where once stood an artistic, colorful work.

The complaint, filed on 1 June 2021, stresses that “[t]his case is about the NYPD’s lack of training about art, copyrights, and the value of art on the urban scape”. Its allegations set forth that, upon information and belief, the NYPD has nomechanism in place to ensure compliance with the Constitution, copyright law or the Visual Artists Rights Act (“VARA”) and makes no distinction between legal art and illegal vandalism:

NYPD lacks a clear procedure, training, or protocol to determine which works of art are protected under the Visual Artists Rights Act, or even to distinguish between art and vandalism; and

NYPD does not even have a protocol in place to confirm with property owners whether the murals and artworks were created with permission. This also means that the NYPD lack a clear directive on how to instruct their police officers and so-called volunteers how to properly discern “vandalism”.

Because this alleged lack of clear procedure, training, protocol and directive could potentially impact other artists similarly situated, this suit is not limited to the destruction of Kaves’ mural. The putative class is defined as hundreds of “individuals who have installed artworks with permission from the property owners or operators within the City of New York, whose artworks have been, or may in the future be destroyed, mutilated, or distorted by the NYPD”. The harm caused to these artists is attributed to “Defendants’ common, uniform, unfair, and arbitrary policies and practices.”

As the case is in its early stages, with the Defendants’ answers not due until the end of July 2021, its magnitude is yet to be seen. The NYPD’s press release for the clean-up campaign indicated that each of the City’s 77 precincts as well as ‘in transit’ and housing units would be covered, targeting areas based on “information from residents about locations that need to be cleaned up.” The complaint stresses the “chilling effect” that the Police Department’s response to these tips has had and will continue to have on the creation of art and the exercise of free speech and expression, with the NYPD’s widespread overpainting of artworks likened to “litter” removal. Thus, the claims on behalf of McLeer and the Class are two-fold:

• violation of the relevant artists’ federal civil rights under the U.S. Constitution’s First and Fourteenth Amendments and 42 U.S.C. Section 1983 by infringement of their free speech and property rights without due process; and
• violation of their rights under VARA, 17 U.S.C. Section 106A.

At least eight questions of law and fact common to the putative class were raised, not least of which is one rooted in VARA — whether the conduct of the NYPD was willful and/or reckless. The finding of willful/reckless conduct on the part of the developer defendants in 5Pointz was pivotal in its damages outcome, triggering the maximum statutory damages of $150,000 for each destroyed work that was deemed to be of recognized stature. Unless a settlement is reached, this is the prevailing precedent under which the McLeer case shall be decided.

While the prayer for relief includes a request for a preliminary and permanent injunction against “destruction, modification, mutilation, and distortion of street art”, the clean-up campaign, and “policies, patterns, and/or practices” that would violate the rights of McLeer and the Class, it is unclear whether or when such an injunction would be granted. At a minimum, it would arguably be prudent for the NYPD to pause the campaign until a revised policy is in place to ensure that at least legally protected works are not included in the clean-up.  For, as the Honorable Barrington Parker wrote on behalf of the Second Circuit Court of Appeals in 5Pointz, “we are mindful of Justice Holmes’s cautionary observation that ‘[i]t would be a dangerous undertaking for persons trained only to the law to 
constitute themselves final judges of the worth of [visual art]’”.

Image: NYDP patrol car:  Franz Golhen, Public domain, via Wikimedia Commons