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These consolidated interlocutory appeals and cross-appeal arise from two orders of the United States District Court for the Eastern District of New York (Hurley, J.) in an action brought against state, county, town, and individual public officer defendants, pursuant to 42 U.S.C. § 1983, alleging violations of First Amendment free speech rights. The underlying action arises from the failure by the county defendants to grant a permit to plaintiff concert promoters to hold a two-day concert festival in a public park. The complaint asserts both "facial" and "as applied" constitutional challenges. The first order, dated September 30, 2005:(i) declared portions of N.Y. PUBLIC HEALTH LAW § 225(5)(o) (the "Mass Gathering Law"), and the New York Sanitary Code, N.Y. COMP. R. & REGS. tit. 10, § 7-1.40, facially unconstitutional; (ii) severed the unconstitutional portions of the statute and regulation; and (iii) granted an injunction against application of those portions to plaintiffs by state, county, and town defendants. The second order, also dated September 30, 2005, denied motions for dismissal pursuant to Fed.R.Civ.P. 12(b)(6). These motions were premised on plaintiffs' lack of standing and defendants' qualified immunity and were made by public officer defendants in their individual capacities.


463 F.3d 167 (2006) FIELD DAY, LLC, f/k/a New York Music Festival, LLC, Aeg Live LLC, f/k/a Aeg Concerts LLC, Plaintiffs-Appellees-Cross-Appellants, v. COUNTY OF SUFFOLK, Suffolk County Department of Health Services, Suffolk County Executive Robert Gaffney, Commissioner of the Suffolk County Department of Health Services Brian Harper, Commissioner of the Suffolk County Police Department John C. Gallagher, Director of the Suffolk County Department of Health Services Robert Maimoni, Chief of the Bureau of Public Health Protection Bruce Williamson, Principal Public Health Sanitarian Robert Gerdts, Deputy Suffolk County Attorney Robert Cabble, Deputy Suffolk County Executive Joe Michaels, and Sergeant Patrick Maher of the Suffolk County Police Department, Defendants-Appellants, New York State Health Commissioner Antonia C. Novello, Defendant-Appellant, Town of Riverhead and Riverhead Chief of Police David Hegermiller, Defendants. Docket Nos. 05-5341-CV(L), 05-5870-CV(XAP), 05-6445-CV(CON). United States Court of Appeals, Second Circuit.

Argued: May 16, 2006. Decided: September 12, 2006.

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