Zhang Jingrong v. Chinese Anti-Cult World Alliance (311 F. Supp. 3d 514, 2018)

Jack B. Weinstein, Senior United States District Judge Table of Contents

I. Introduction...522

A. Background...522

B. Motions and Claims...523

II. Facts...525

A. Falun Gong...525

1. Background and Tenets...525

2. Expert Testimony...526

B. Suppression of Falun Gong in China...531

C. Conflict in Flushing New York...532

1. Plaintiffs' Accounts...533

2. Defendants' Accounts...534

D. Procedural History...535

III. Law

A. Summary Judgment Standard of Review...538

B. Religion in American Law...539

1. Historical Account...539

2. Current Approaches to Defining Religion...545

C. 42 U.S.C. § 1985(3)...547

1. Background on § 1985(3) Deprivation Clause...547

2. State Action under the Deprivation Clause...548

3. Elements of a Deprivation Clause Claim...550

4. Continuing Validity of Deprivation Clause Claims...551

5. Hindrance Clause...552

D. 18 U.S.C. § 248 : Freedom of Access to Clinic Entrances Act...552

1. Text and Legislative History...552

2. Meaning of "A Place of Religious Worship"...553

E. New York Civil Rights Law...555

F. Assault and Battery...555

G. Intentional Infliction of Emotional Distress...556

H. Negligence...556

I. Public Nuisance...556

J. Statute of Limitations: Continuing Violations Doctrine...557

K. Counterclaim Timeliness...558

IV. Application of Facts to Law...559

A. Falun Gong Is a Religion in the United States for Purposes of this Litigation...559

B. Statute of Limitations...560

1. Plaintiffs' Claims: Continuing Violations Doctrine...560

2. Defendants' Claims: Counterclaim Relation Back and Equitable Recoupment...561

C. Plaintiffs' Claims...561

1. Assault and Battery...561

2. New York Civil Rights Law...561

3. Deprivation Clause...562

4. Hindrance Clause...563

5. 18 U.S.C. § 248 : Freedom of Access to Clinic Entrances Act...563

6. Negligence...564

7. Intentional Infliction of Emotional Distress...564

8. Public Nuisance...564

D. Defendants' Counterclaims...565

1. Assault and Battery...565

2. Intentional Infliction of Emotional Distress...565

3. Negligence...565

4. New York Civil Rights Law...565

V. Conclusion...565

VI. Appendix A: Map of Sites of the Alleged Incidents...566 VII. Appendix B: Pictures of Sites of the Alleged Incidents...567

I. Introduction

A. Background

Plaintiffs are members of a group, Falun Gong, developed in the second half of the twentieth century in China. The People's Republic of China ("Chinese Government"), it is alleged, has acted to suppress this group in both China and abroad, including in the United States; it deems it a threat to the hegemony of the Chinese State and Communist Party. See, e.g. , Pitman B. Potter, Belief in Control: Regulation of Religion in China , 174 The China Q. 317, 323, 331-32 (2003); Fenggang Yang, The Red, Black, and Gray Markets of Religion in China , 47 The Soc. Q. 93, 110-13 (2006).

Adherents of Falun Gong live in the United States. Some are citizens of this country. It is contended by them as plaintiffs that the Chinese Government has conspired with individuals to harm followers and suppress Falun Gong in the United States by organizing and encouraging the Chinese Anti-Cult World Alliance ("CACWA") and individuals to inflict injuries on those who follow Falun Gong.

Defendants oppose Falun Gong in Flushing, Queens, New York, and elsewhere. They deny that Falun Gong is a religion. Following the position of the Chinese Government, their opposition is based upon characterizing Falun Gong as a "cult" indoctrinating its followers with beliefs that are dangerous, unscientific, and offensive.

Plaintiffs' claims require a showing, for the purposes of this litigation, that Falun Gong is a religion and that defendants obstructed the right of its adherents to practice this religion at places of religious worship.

In China, and in the United States, anti-Falun Gongists define Falun Gong as a "cult" that challenges the authority of the ruling Communist Party and Chinese Government. See Anne S. Y. Cheung, In Search of a Theory of Cult and Freedom of Religion in China: The Case of Falun Gong , 13 Pac. Rim L. & Pol'y J. 1 (2004).

The history and tradition in American constitutional law and the beliefs of most of the population of the United States mandates a finding that Falun Gong is a religion for only purposes of standing and applicable substantive law in the present case. "Heresy trials are foreign to our Constitution." United States v. Ballard , 322 U.S. 78, 86, 64 S.Ct. 882, 88 L.Ed. 1148 (1944).

The court defines Falun Gong as a religion for purposes of this litigation. See infra Sections III(B), IV(A). The court makes no ruling on the religious nature of Falun Gong for general theological purposes. The parties' post-summary judgment hearing submissions seeking a definition of Falun Gong as a religion or non-religion for purposes outside this litigation are not persuasive. See Plts.' Post-Hr'g Br. at 1-10, ECF No. 145; Defs.' Post Hr'g Br. at 1-3, 7-10, ECF No. 146.

Plaintiffs proselytize their religion and protest the Chinese Government's opposition to it on Main Street in Flushing, Queens, near what they consider to be one of their temples. See Appendixes A & B (map and pictures of area). The Federal Freedom of Access to Clinic Entrances Act protects plaintiffs "lawfully exercising ... [their] First Amendment right of religious freedom at a place of religious worship ." 18 U.S.C. § 248(a)(2) (emphasis added). This statute is inclusive of all lawful religious practices and of all places it is practiced. Any place a religion is practiced-be it in underneath a tree, in a meadow, or at a folding table on the streets of a busy city-is protected by this and other statutes and the First Amendment to the Federal Constitution. A contrary reading would render the Freedom of Access to Clinic Entrances Act unconstitutional since it would discriminate between religions that use formal temples and those that do not.

Plaintiffs set up their tables in a heavily pedestrian-traveled area in Queens. See Summary Judgment Hearing Transcript ("Hr'g Tr.") 251:5-253:10 (April 4, 2018 & April 11, 2018). There they proselytize for the Falun Gong, also known as Falun Dafa. See id. As noted above, for purposes of this litigation, Falun Gong is properly characterized as a religion under the Federal Constitution and federal and state statutes and cases. See infra Sections III(B), IV(A). Its adherents verbally and with hand-outs, signs, and literature attacked the Chinese Government politically for, among other things, harvesting human organs. Hr'g Tr. 265:15-266:6.

Defendants, following the Chinese Government's position, allegedly verbally and physically attacked plaintiffs at their tables, and referred to Falun Gong as a "cult," dangerous to its adherents and others. See infra Section II(C). Defendants claim plaintiffs attacked them physically.

At times the debates became loud, spirited, and robust, with occasional striking out and hitting, but with no appreciable physical harm to any person. Id. Since the instant case was brought, physical confrontations have subsided. See Hr'g Tr. 156:24-157:10. The parties appear to have reached a modus vivendi . The New York police are well in control of the situation. See id.

B. Motions and Claims

A motion to dismiss on the pleadings has been denied. See Zhang Jingrong v. Chinese Anti-Cult World All. , 287 F.Supp.3d 290 (E.D.N.Y. 2018).

Both parties now move for summary judgment. Plaintiffs seek dismissal of defendants' counterclaims. Defendants seek dismissal of several of plaintiffs' causes of action. The court sua sponte moved for partial summary judgment after providing notice in accordance with Federal Rule of Civil Procedure 56(f). See Mar. 26, 2018 Order, ECF No. 130.

The court does not contemplate granting injunctive relief because the violence has abated and the police are in control. See supra Section I(A). An injunction might complicate appropriate police action. The case will proceed to a jury trial on the issues of liability and damages.

A full evidentiary hearing was provided on the motions for summary judgment. See Hr'g Tr. The motions for summary judgment are decided as follows:

(1) Assault and battery: this is a simple New York State common law based claim. It is amply supported by the allegations and evidence. It will be tried by a jury.

(2) Bias related violence and intimidation ( New York Civil Rights Law § 79-n ): this statute is applicable by its language to plaintiffs' complaint. It will be tried by a jury.

(3) Conspiracy to violate civil rights ( 42 U.S.C. § 1985(3) ): the magistrate judge's report and recommendation approved by the late Judge Sandra Townes denied defendants' motion to dismiss this claim. Zhang Jingrong v. Chinese Anti-Cult World All. , 287 F.Supp.3d 290 (E.D.N.Y. 2018) ; Order Adopting Report and Recommendation, ECF No. 38.

This court is dubious about the application of this statute. The latest decisions on the subject by the Supreme Court implicitly overrule Second Circuit Court of Appeals' decisions, which might have been read as approving plaintiffs' legal theory supporting the instant claim. Compare Bray v. Alexandria Women's Health Clinic , 506 U.S. 263, 275, 113 S.Ct. 753, 122 L.Ed.2d 34 (1993) (denying claims under § 1985(3) based on the right to interstate travel), with Spencer v. Casavilla , 903 F.2d 171 (2d Cir. 1990) (approving § 1985(3) claim based on the right to intrastate travel); cf. Spencer v. Casavilla , 839 F.Supp. 1014, 1017 (S.D.N.Y. 1993), aff'd in part, appeal dismissed in part , 44 F.3d 74 (2d Cir. 1994) (expressing doubt about "the Second Circuit Court of Appeals' position that the right to intrastate travel is on a constitutional par with the right to interstate travel"); Upper Hudson Planned Parenthood, Inc. v. Doe , 836 F.Supp. 939, 947 (N.D.N.Y. 1993) (expressing "serious reservations" about the extent of the right to intrastate travel after Bray ).

There is no indication that the conduct alleged here goes beyond a narrow religious and political dispute between two relatively small groups. The history of 42 U.S.C. § 1985(3), the Ku Klux Klan Act, adopted in 1871, does not bear on such minor disputes as those before the court. This local dispute is in no way comparable to those in 1871, when the Ku Klux Klan was a powerful national and local entity, in effect laying siege to state and local government in the South in order to deny African Americans their post-slavery rights. The Ku Klux Klan's operations could be analogized to "color of state action." The instant dispute is not in that class.

This claim is dismissed. Trying the case under 42 U.S.C § 1985(3) would enhance the possibility of a mistrial or reversal. That unfortunate result after a full trial can be avoided by substituting (2) above and (5) below for their equivalent (3). Attorneys' fees may be awarded under (2) and (5), as well as (3).

(4) Conspiracy to prevent authorities from providing full, free, and equal access to public spaces ( 42 U.S.C. § 1985(3) ): this theory has no support in the record. The police have done, and are doing, their job well in protecting access to public spaces. The evidence shows that police were taking adequate steps to protect defendants and plaintiffs; there is no basis for this claim or reason to bring alleged police failures into the case.

(5) Interference with religious freedom ( 18 U.S.C. § 248 ): this claim will be tried by jury. The statute allows claims based on denial of access to places of worship. It has application to plaintiffs' claims; the evidence will largely overlap with that for (2) above.

(6) Negligence: there is no basis in either state or federal law on the facts to find negligence. The activities at issue are intentional. The gravamen of this case is alleged deliberate action by a conspiracy of defendants to harm a religion practiced by plaintiffs in this country, and push back by plaintiffs. Political as well as religious differences divide the parties.

(7) Intentional infliction of emotional distress: this issue will be treated under plaintiffs' claim for assault and battery, which can support both physical and psychic injury. It is not an independent claim.

(8) Public nuisance: there is no need to fall back on a nuisance claim in the present case since it is essentially founded on the common law theory of assault and battery. See N.A.A.C.P. v. AcuSport, Inc. , 271 F.Supp.2d 435, 447 (E.D.N.Y. 2003) (rejecting public nuisance claim).

Defendants raise counterclaims and seek relief on the following grounds:

(9) Assault and battery: this counterclaim will go forward in a jury trial. See (1) above.

(10) Intentional infliction of emotional distress: this counterclaim will be treated in the same way as plaintiffs' claim. See (7) above. It is not an independent claim.

(11) Negligence: this counterclaim is dismissed for the same reasons as plaintiffs' negligence claim. See (6) above.

(12) New York Civil Rights Law § 79-n : this claim will proceed to trial. The statute is written to cover disputes such as the present one.

The present case involves issues of free speech, freedom of religion, religious rights, and political disputes in China and the United States. It will be tried on the theory that defendants committed violent acts against plaintiffs because of religious and political differences, and vice versa.

II. Facts

Sufficient evidence has been adduced to support the pleadings' allegations. What follows is based upon evidence from court hearings, background materials, media reports, academic studies, and submissions of the parties.

A. Falun Gong

1. Background and Tenets

Li Hongzhi founded Falun Gong in 1992. Plts.' Affirmative 56.1 Statement (Plts.' 56.1 Stm't) at ¶ 1, ECF No. 106, Ex. 2. He wrote the main corpus of Falun Gong beliefs, Zhuan Falun. Id. at ¶¶ 1-3. Falun Gong literally translates to "the practice of the wheel of the Dharma." Anne S. Y. Cheung, In Search of a Theory of Cult and Freedom of Religion in China: The Case of Falun Gong , 13 Pac. Rim L. & Pol'y J. 1, 21 (2004). It combines the practice of qigong , breathing exercises, with traditions of Buddhism and Taoism. Id. It also goes by the name "Falun Dafa." Id.

The founder did not call Falun Gong a religion. Defs.' Counterstatement of Additional Facts ("Defs.' Counterstatement") at ¶ 1, ECF No. 108. Some adherents deny that it is a religion. Cheung, supra , at 21. These statements are based on an understanding of religion different from that under American law; for the purposes of the present suit, Falun Gong is a religion.

Falun Gong speaks of a divine creator, known as DAFA/the Buddha FA, who created time and space. Plts.' 56.1 Stm't at ¶ 5. The purpose of life, according to its tenets, is to return to one's original self, achieve enlightenment, and attain salvation. Id. at ¶ 7. Practitioners undergo a process known as "cultivation," requiring adherence to a detailed ethical code. Id. at ¶ 8. Truth, tolerance, and respect for family and elders, are essential parts of its ethics. Id. at ¶¶ 12-18. Following its path leads to virtue. Id. at ¶¶ 18-19. Jealousy, deception, bullying, lust, and arguing decrease virtue. Id. at ¶ 20.

Falun Gong teaches of separate dimensions where the divine creator lives. Id. at ¶¶ 21-23. Those living in the human dimension cannot experience other dimensions as can great enlightened beings. Id. at ¶ 24. One's true self lives in a miniature dimension. Id. Reincarnation transcends these dimensions as a person's spirit adopts "skin," the physical form of the dimension in which he or she is reincarnated. Id.

Practitioners of Falun Gong exercise physically five times per day and pray at six-hour intervals. Id. at ¶ 25. They study daily and proselytize. Id. Adherents avoid uncooked meat and alcohol, celebrate holidays, such as Falun Dafa Day, and venerate sacred images and symbols such as a law wheel or Falun, Buddhas, Taos, Bodhisattvas, and Celestial maidens. Id. at ¶ 26.

Falun Gong has a number of controversial teachings. Its leader has stated that mixed-race children are inferior, aliens have visited earth, and homosexuality and women's liberation cause societal harm. Defs.' Counterstatement at ¶¶ 7-10. Adherents avoid western medicine. Plts.' 56.1 Stm't at ¶ 50.

2. Expert Testimony

Three experts testified at the summary judgment hearing: Caylan Ford and Dr. Arthur Waldron for the plaintiffs, and Dr. Xia Ming, for the defendants.

a. Caylan Ford

Ford received a Bachelor of Arts degree in Chinese History from the University of Calgary, a Masters in International Affairs from the George Washington University, and a Masters in International Human Rights Law from the University of Oxford. Hr'g Tr. 39:7-14. She has studied and written learned articles about Falun Gong. Id. 39:7-41:11. She practices Falun Gong. Id. 44:1-5.

She explained the genesis and basic teachings of Falun Gong:

Falun Gong was first publicly taught in China in 1992 by a man named Li Hongzhi who is referred in the practice as the master or teacher....

Li described Falun Gong, which is also sometimes called Falun Dafa. It's described as a practice stemming from the Buddhist school and it's stated essential teachings principles, and practice methods have been transmitted orally to him through a long lineage of masters and disciples .... as is quite typical of Asiatic or spiritual disciplines and traditions. After being passed on to him, he reorganized some of these practice methods to make them suitable for popularization and he compiled the essential teachings in the book Zhuan Falun ....

[I]t was originally classified as a system of Qigong. And Qigong is an umbrella term, it's a system of categorization that's fairly new in China that captures sort of a wide variety of meditation-regulated breathing practices. And they were classified in contemporary China as forms of Chinese medicine meant to effect better health. But Li Hongzhi made clear that Falun Dafa, Falun Gong, the purpose of it was not limited to obtaining better health. Instead, it was presented as a path to transcendence, spiritual salvation.

Emphasis was put on spiritual and moral rectitude, and the ultimate goal is to achieve a kind of reconciliation with the divine. And this is actually much more reflective of the traditional function that these kinds of meditation and exercises had in antiquity.

But a lot of these were more philosophical or theological components ... lost within the political climate of communist China. So, in effect, Li Hongzhi was reviving the kind of religious origins of this type of Qigong discipline.

Id. 45:10-47:3.

Ford further explained the relationship between Falun Gong and the meditation and breathing exercise practice, known as Qigong.

Well, Qigong is not a discrete single thing. So Falun Gong shouldn't be understood as a branch of Qigong or a sect, for instance. Rather, Qigong is a modern system of a classification that was devised in the political climate of the Peoples Republic of China under Communism.

So, for centuries, Qigong-like techniques of meditation, regulated breathing, specific movements and exercises, these have been employed for centuries, if not millennia, by Daoist practitioners, by some Buddhist groups, as a sort of ancillary means of achieving spiritual transformation. And many of these types of practices were transmitted orally through lineage systems in private, and they were sort of rediscovered early in the Maoist era. In order to survive in that political climate, they had to cast off their theistic beliefs or their religious beliefs.

So, to survive, Qigong practices were essentially reclassified as systems of Chinese medicine and stripped of their more overtly religious content. And it's that trend, as I said earlier, that Falun Gong in a sense reversed ....

Qigong is not necessarily religious, or the practices that are described as Qigong practices, rather, are not necessarily unreligious. Some of them are. I suppose, in a way, it's analogous to ... Yogic practices. In both China and India, there are these similar traditions of ... focused movements that are in to assist a person in their quest for transcendence and moksha and enlightenment, and comprised part of spiritual and religious practice. That doesn't mean that everyone practicing [¢] yoga in New York is engaged in a religious practice, but neither does it mean that there are no religious applications or religious practices that involve yoga ....

So some Qigong practices, I think, could rightly be classified as having religious elements, and some having been divorced from their religious roots no longer have that claim.

Id. 49:9-50:24.

Buddhism and Falun Gong are related to one another.

[T]here is the Buddhist religion founded by Buddha Shakyamuni, the historical Buddha, but then there is the Buddhist school Falun Gong calls Fojiao .... And the Falun Gong understand the name of this is that the Buddhism founded by Buddha Shakyamuni, the religious Buddhism is but one branch of a much broader school. And so the relationship between Falun Gong and religious Buddhism is of two different sort of denominations within a very vast system or school of teachings. As opposed to Falun Gong being a sect of religious Buddhism as founded by Buddha Shakyamuni.

Id. 103:23-104:9.

In Ford's expert opinion, Falun Gong is a religion by Western standards. She described the features of Falun Gong that led to this conclusion.

Falun Gong elaborates a very complete cosmology or sacred order. It places ethical and moral demands on its practitioners and grounds these demands within a metaphysical framework.

The ultimate goal of the practice is the attainment of spiritual salvation, enlightenment, transcendence of this mortal realm in the context of Eastern religions. They talk of reincarnation, a cycle of samsara. And the goal is ultimately to extricate one's self from this cycle of reincarnation and achieve reconciliation for the divine. It involves an extensive body of scripture, a moral code. Teachings deal with ultimate questions of the purpose of life, the afterlife, the source of suffering, the means of salvation. It discusses metaphysical, or other worldly realms that are beyond our human perception or beyond this material world, planes inhabited by deities or gods.

In terms of its function in the lives of its practitioners with the caveat that religion can mean different things to different people and can be embraced with varying levels of commitment for the vast majority of Falun Gong practitioners that I know, they engage daily with the study of Falun Gong [teachings], Falun Gong meditation and exercise, and they certainly would see it as, you know, sort of playing a parallel role to what belief in God plays in established in orthodox faiths. And it's an essential component to their self-identity.

So, in all these ways, yes, I believe that Falun Gong would qualify as a religion based on our Western conceptions of religion, and certainly, based under U.S. law.

Id. 51:7-52:11

Falun Gong teaches of a divine creator:

So its teachings articulate a belief in a divine creator, and the ultimate kind of manifestation is found in the principles of Chinese of Zhen, Shan, Ren .... But this translates roughly as truth or truthfulness; compassion, benevolence; and something akin to forbearance. Endurance, patience, et cetera.

And this quality is described as the great law of the universe, the Dafa. It represents the fundamental or the ultimate nature of the universe. The ultimate manifestation of the Dao or the Buddhist law. It's seen as the source of order that animates and gives rise to all life and all things. And It's the sole criteria by which Falun Gong measures what's good and bad, right and wrong. So it's unchangeable and immutable, and it's ... the source or the divine ground of being.

Id. 52:16-53:8.

Unlike some other religions, Falun Gong generally does not issue strict prohibitions; instead, it offers its followers general principles.

[Li Hongzhi's] approach ... is typically to explain the principles of why a particular thing is good or bad. Why it may not be compatible with the ends of practice. And then it's up to the individual student, him or herself, to apply these principles in her life.

So, as an example, Buddhist practices have just a hard-and-fast prohibition on eating meat. Falun Gong would explain that the practitioner shouldn't be attached to eating meat, that negative karma may be accrued in the process of eating meat. But it doesn't forbid it outright. So this is a little bit of ... how to understand the sort of Li's approach to these types of ethical teachings.

Id. 53:12-54:22.

It is a "revealed religion" shown to Li's followers through his speeches and writings. Id. 57:23-58:5. Much "is left to the individual practitioner to understand and interpret in their life and their own manner."Id.

The daily practice of Falun Gong includes five exercises:

These include four slow-moving meditative standing exercises and one seated meditation. In addition, there's a daily short meditation ritual that's performed ... multiple times a day where possible, and it's kind of akin to a prayer. These are the main sort of outward manifestations of ritual in that sense.

Id. 54:23-55:6.

Although Falun Gong's founder has stated that it is not a religion, Ford explained that this teaching is based on a Chinese concept of religion that differs from religion in the Western sense. Id. 59:1-60:4. Li has stated the Falun Gong is not a "Zong Jiao," a Chinese concept that is often translated as "religion" in English.

Zong Jiao is actually a neologism that was invented in China in the 19th century. It generally is translated into English as religion, but I would say that a more accurate translation is institutional religion or organized religion because what the term Zong Jiao encompasses is much narrower than what the English term is understood to mean i.e., Zong Jiao refers to highly institutionalized religion that [has] churches or temples, clergy or some kind of monastic order; systems of membership, tithing, et cetera....

[A]t various points, Li has said that Falun Gong is not a, he said it's not a Zong Jiao because it doesn't have these kinds of institutionalized features....

The fact that the Li Hongzhi has said in Chinese that Falun Gong is not a Zong Jiao religion, to me, has no bearing on the question of whether it should be understood as a religion under U.S. law. I think it's perfectly irrelevant for the United States who, as I understand it, has their own criteria ... that are independent of this kind of question.

Id. 59:1-62:8.

Falun Gong does not have many formal physical or organizational structures. In the 1990s, it had no temples or clergy. Id. 89:18-23. There is now a Falun Gong Temple located in upstate New York, and several more formal Falun Gong gathering places, including those in Flushing, Queens. Id. 89:18-90:13. In Flushing, Falun Gong practitioners gather at a spiritual center on Main Street to meditate, exercise, and study in groups. Id. 114:19-24.

But, in most places, Falun Gong remains a decentralized religion.

[G]roup meditation sites or places where practitioners congregate for the purpose of studying the teachings or exchanging ideas, in most places around the world this occurs in wherever they can get free real estate. So, typically, public parks and schools, universities, community centers and these tend to be ad hoc and informal.

Id. 89:18-90:13.

Falun Gong practitioners set up tables throughout the world on public streets, including those in Flushing, Queens. Id. 94:14-95:1, 97:24-98:12. One purpose of their tables is to criticize the Chinese Government. Id. In Flushing, Falun Gong practitioners "disseminate literature and speak with passersby about the nature of their religious practice, and [its] persecution in China. And they also sometimes will encourage people to ... make symbolic renunciations of their ties to the Communist Party." Id. 114:4-15.

b. Arthur Waldron

Arthur Waldron is the Lauder professor of International Relations in the History Department at the University of Pennsylvania. Hr'g Tr. 120:17-121:6. He received a B.A. from Harvard College and a Ph.D. from Harvard University in Chinese History. Id. He has studied, written in learned journals, and taught about religion in China. Id. 121:13-123:1.

Waldron concluded, in his expert opinion, that Falun Gong is a religion by Western standards. Id. 123:24-124:6. He had two primary bases for his conclusion:

Well, the first conclusion, the first basis, would be that Falun Gong describes itself as one of the 84,000 Buddhisms. And Buddhism is recognized, I think, in America as being a religion. If Buddhism is not a religion, then it's very hard to say what is a religion.

The second point is that like most religions, Falun Gong is not about worldly things or even about one's self, it is about advancing through a path of spiritual exercise to higher and higher levels of understanding of the nature, the origins, the moral dimensions and so forth of the universe and I think it shares this characteristic with every religion that I can think of.

Id. 124:7-21.

He explained the relationship between Falun Gong and Buddhism:

I would say [Falun Gong] is probably one-third composed of analogies and quotations from the Daoist and Buddhist masters. The story, of course, is that Li Hongzhi [Falun Gong's founder] as a very young boy was recognized as having certain spiritual gifts and, therefore, during the Cultural Revolution, he was taken from monastery to monastery in China where there were great sages. And each of these sages would teach him the essence and the best of what that sage knew and this was his education.

So you can say that his education was eclectic in the sense that he studied with many masters of many different Chinese religions and then he put together a synthesis that he had arrived at, but which was a synthesis of what was already there in the others. And, therefore, it was kith and kin. It was in no way different. It was in certain respects novel you might say, but it represents in many ways, also, a development of trans-Buddhist thought which you can follow all the way back to the time of Buddha.

Id. 130:13-131:7.

c. Xia Ming

Xia Ming is a professor of political science at the City University of New York Graduate Center and the College of Staten Island. Hr'g Tr. 163:9-20. He has researched and written learned articles about Falun Gong. Id. 166:9-167:15.

Dr. Xia did not offer a concrete opinion that Falun Gong is not a religion as defined by United States law. He did express hesitation about calling it a religion. Id. 171:3-172:2. Some of the aspects that give Dr. Xia pause include: (1) a lack of a God and savior figure, id. 173:11-15; (2) Falun Gong's founder's statements that it is not a religion, id. 173:23-174:3; and (3) Falun Gong's lack of interfaith tolerance, id. 174:3-175:18. None of these are dispositive factors in the American tradition.

The political aspects of modern Falun Gong practice, associated with anti-Chinese Government statements and propaganda, also add to Dr. Xia's hesitation in calling it a religion. But, as shown from the following colloquy with the court, when the political dimension is severed from the spiritual, he agrees that there are clear religious aspects to Falun Gong:

Court: So, for the Court, it is necessary in approaching the problem to put aside the political aspects of the entity. You agree, do you not?

Dr. Xia: In order to understand the Falun Gong, whether it is a religion or not, I think we should do that. But unfortunately, for the context of this case, and in the court, and I think-and the reason-the primary course for the controversy in which led to confrontation and conflicts, and I believe they were more political than religious.

Court: But putting aside the political aspects, is there a residual spiritual aspect in the Buddhist tradition, which I understand may have literally thousands of subreligions, correct?

Dr. Xia: Yes, different sects, yes.

Court: Sects. But they are each a religion, correct?

Dr. Xia: Yes.

Court: If we strain out the political for our analysis, is there left a residual spiritual value which under the United States' very broad religious definition could be characterized as religious?

Dr. Xia: Excuse me. I believe it has a spiritual aspect. It has religious aspects, sure ....

Court: But you do understand that today, even with respect to the so called Abrahamic religions, Catholicism, Protestantism, Judaism, et cetera, there are political aspects which we see in various civil and other wars in other parts of the world, correct?

Dr. Xia: Yes.

Court: But the problem for the Court is whether when we put that aside, is there this-what we have referred to as spiritual, but you understand is very broad under the American law-residual aspect that can be characterized for litigation purposes under the Constitution as religious in its aspects.

Dr. Xia: If we think without reference to the context of this case, and if there was no litigation going on over this issue, and I can say we can identify the religion or spiritual aspect of the Falun Gong.

Id. 176:3-177:22.

The court does not construe this witness's testimony as demonstrating in his view that Falun Gong is not a religion. His testimony tends to support plaintiffs' experts' position that Falun Gong should be characterized as a religion in the United States.

B. Suppression of Falun Gong in China

Shortly after its beginnings in 1992, the People's Republic of China ("Chinese Government") began attacking Falun Gong and its adherents. Amnesty International, China: The Crackdown On Falun Gong And Other So-Called "Heretical Organizations" 4 (Mar. 23, 2000). To protest police harassment, Falun Gong practitioners held a demonstration in Beijing on April 25, 1999. Id. Ten thousand practitioners stood in front of the Communist Party's compound from dawn until late in the night. Id.

Falun Gong was soon after branded as a threat to social stability by the Chinese Government. Id. In the summer of 1999 it was outlawed. Plaintiffs' 56.1 Statement in Opposition to Defendants' Motion for Summary Judgment, Plaintiffs' Supplemental Material Facts ("Plts.' Supp. Facts") at ¶ 1, ECF No. 115, Ex. 1. This measure was followed by a legislative ban on all "heretical organizations," including Falun Gong, in October of 1999. Amnesty International, supra , at 1.

Shortly after the ban, tens of thousands of Falun Gong practitioners were detained by the police and pressured to abandon their beliefs. Id. at 1-2. Many Falun Gong leaders were charged with crimes. Id. at 6. There was a presumption of guilt at trial. Id.

The Chinese Government created the "6-10 Office" in June of 1999 to "formulate and execute policies against Falun Gong." Anne S. Y. Cheung, In Search of a Theory of Cult and Freedom of Religion in China: The Case of Falun Gong , 13 Pac. Rim L. & Pol'y J. 1, 23 (2004). This governmental unit is above the courts, prosecutors, and general security apparatus. Id. at 23-24.

Along with the ban came a sustained propaganda campaign. The Chinese Government portrayed Falun Gong practitioners as mentally unstable cult members. Plts.' Supp. Facts at ¶ 2-5. The 6-10 Office led a "douzheng" campaign, a violent suppression. Id. "Ye Xiaowen, Director of The Bureau of Religious Affairs of the State Council (government), said that 'Falun Gong had brainwashed and bilked [double-crossed] followers, caused more than 1,400 deaths, and threatened both social and political stability.' " Amnesty International, supra , at 4. The Chinese Government sought to publicize statements from those it claimed to be former Falun Gong practitioners denouncing Falun Gong's leaders and practices. Id.

Violent suppression of Falun Gong continued after the initial crackdown. In 2008, for example, nine Falun Gong practitioners died in police custody. Congressional-Executive Commission on China, 2008 Annual Report, available at https://www.cecc.gov/publications/annual-reports/2008-annual-report (last visited Mar. 23, 2018).

The 6-10 Office coordinates a network in China of Anti-Cult Associations ("CACAs"). Id. The local associations are a "prominent information channel for the [Chinese] government's campaign against Falun Gong, as they widely disseminate anti-Falun Gong propaganda by holding study sessions and other community activities to raise 'anti-cult awareness.' " Id. Although technically independent of the government, these associations are supported and funded by the 6-10 Office.

Reports of the imprisonment and torture of Falun Gong practitioners and defenders are repetitive and continuing. See, e.g. , Didi Kirsten Tatlow, 11 Detained After Protesting 'Black Jail' in China , N.Y. Times (April 1, 2014) (reporting the jailing of 11 individuals, including four human rights lawyers, who were allegedly supporting Falun Gong); Edward Wong, 2 Chinese Lawyers Are Facing Disbarment for Defending Falun Gong , N.Y. Times (April 21, 2011); Austin Ramzy, Family of Dissident Lawyer Fears for His Health After Prison , N.Y. Times (August 14, 2014) (reporting on a lawyer, who represented Falun Gong clients, being tortured in prison).

C. Conflict in Flushing New York

Many of the plaintiffs had been subject to the Chinese Government's campaign of violent suppression while living in China. Plts.' Supp. Facts at ¶¶ 6, 31. They came to the United States, often as refugees and asylees after being tortured or detained. Id. Eleven of the thirteen plaintiffs have expressed a sincere belief in Falun Gong. Id. at ¶¶ 27-39.

In the United States, plaintiffs were physically and verbally harassed; they allege, as a result of their practice of Falun Gong at the direction of the Defendant Chinese Anti-Cult World Alliance ("CACWA"), an international offshoot of CACA. Id. at ¶ 14. Formed in connection with the Chinese extrajudicial security apparatus, the 6-10 Office, see supra Section II(B), CACA operates in China as a network of "anti-cult associations," founded with the purpose of eradicating Falun Gong. Id. at ¶ 9.

CACWA activities include: (i) disseminating propaganda calling for the douzheng (violent suppression) and zhuanhua (forced conversion through torture) of Falun Gong believers; (ii) disseminating pamphlets that degrade and dehumanize believers; and (iii) perpetuating physical violence and other attacks against known or suspected Falun Gong believers, including plaintiffs. Id. at ¶ 16. CACWA's organizational certificate explains that its purpose is to "educate society about the dangers of the Falun Gong cult and its anti-human and anti-society" practices and "warn the society about emerging anti-society cults and so called 'spiritual' practices that distort human psyche." Id. at ¶ 22.

Individual defendants have collaborated with CACWA. Id. at ¶¶ 24-29. There have been violent incidents on the streets in Queens, New York. Id. at ¶ 28 ("[T]he individual Defendants have engaged in verbal and physical confrontations with Plaintiffs in concert with one or more of the other Defendants, or have actively supported, endorsed, and ratified such conduct."); id. at ¶ 29 ("Many of these attacks have involved physical violence ... while many have included death threats."); id. at ¶ 37 ("During the attacks themselves, Defendants spoke of the 'elimination' of Falun Gong from Flushing as the purpose of their attacks on Plaintiffs.").

Defendants Chu and Li produce the CACWA Newsletter, which characterizes Falun Gong believers as "malignant tumors," the "scum of humanity," "dogs' legs," "parasites," and subhumans. Id. at ¶ 25. The newsletters call for the violent suppression of Falun Gong. Id. at ¶¶ 26, 58 ("All of the Plaintiffs were attacked by Defendants in close proximity to the CACWA table and the spot where Defendants Chu and Wan distribute the CACWA Newsletter.").

In July 2011, the individual defendants began verbally and physically confronting plaintiffs in close proximity to Falun Gong places of religious worship, such as the Falun Gong Spiritual Center ("Spiritual Center"), located at 40-46 Main Street in Flushing, Queens. Complaint ("Compl.") ¶ 5, ECF No. 2. Plaintiffs proselytize at five designated Falun Gong table sites, which have been authorized for this use by the police. Compl. at ¶ 6. These sites are viewed as extensions of the Spiritual Center and are within walking distance of each other. Compl. at ¶ 6; Hr'g Tr. 251:21-254:9 (director of Falun Gong Spiritual Center in Queens explaining that the tables are used for proselytizing, protesting the Chinese Communist Party, and praying). They are located at: 136-06 Roosevelt Avenue, 41-17 Main Street, 41-65 Main Street, 41-28 Main Street, and 41-70 Main Street. Compl. at ¶ 7; see also Appendixes A & B.

Verbal and physical confrontations between plaintiffs and defendants occurred at these sites. Compl. at ¶¶ 20-31; see Plts.' Supp. Facts at ¶ 35 ("Defendants attacked Plaintiffs in public as they traveled (for the most part) to proselytize in the vicinity of their designated Spiritual Center sites ... A few of these attacks have taken place as Plaintiffs were coming or going from those locations and/or traveling past Defendants' CACWA tables and/or banners.").

1. Plaintiffs' Accounts

a. Plaintiff Gao Jinying and Plaintiff Cui Lina

In April 2011, walking on Main Street in Flushing near the Spiritual Center, Plaintiff Gao Jinying ("Plaintiff Gao") was threatened by Defendant Li Huahong ("Defendant Li"). She said to her: "[T]he United States cannot protect you. We can make you disappear in the United States. The Chinese Embassy has a blacklist of all of you." Compl. at ¶ 26.

On July 21, 2014, Plaintiff Gao saw Defendant Wan Hongjuan ("Defendant Wan") attack Plaintiff Hu Yang ("Plaintiff Hu"), a Falun Gong adherent on Main Street in front of the 136-06 Roosevelt Avenue site. Compl. at ¶ 26. When distributing flyers at the same location with Plaintiff Cui Lina ("Plaintiff Cui"), Defendant Wan threatened both of them with extermination and strangulation. Compl. at ¶ 26; Plts.' Supp. Facts at ¶ 37 ("During a ... verbal attack against Gao Jinying and Cui Lina ... Defendant Wan made [known] her intent to eliminate Falun Gong believers by strangling or in other ways disappearing them."); Plts.' Supp. Facts at ¶ 40 (noting that Defendant Wan said, "You are worse than a dog and I will take out your heart, your liver, and your lungs. I will choke you to death. We will destroy you. We will destroy everyone. Somebody will be here to kill you.").

b. Plaintiff Zhou Yanhua

While distributing fliers near a Falun Gong table in April 2011, Plaintiff Zhou Yanhua ("Plaintiff Zhou") was threatened by Defendant Li, who informed him that he and other Falun Gong believers were on a "blacklist" maintained by the Chinese Embassy. Compl. at ¶ 21. Plaintiff Zhou was in the same location distributing fliers when Defendant Zhu Zirou ("Defendant Zhu") approached him, cursed at him, tore down display boards, and struck him several times. Compl. at ¶ 21.

On January 16, 2015, again in the same location on Main Street, Plaintiff Zhou observed Defendant Wan knock Falun Gong materials off a table and shout loudly, "[y]ou can call the police. We have people in the police station. I am going to eradicate all of you within three months." Compl. at ¶ 21; Plts.' Supp. Facts at ¶ 40.

c. Plaintiff Li Xiurong and Plaintiff Cao Lijun

In July 2011, while Plaintiff Li Xiurong ("Plaintiff Li") walked with Plaintiff Cao Lijun ("Plaintiff Cao") near the 41-70 Main Street table, they were physically attacked by Defendant Li, who was accompanied by Defendant Zhu. Compl. at ¶ 29. At Defendant Li's direction, a "backup" mob of twenty to thirty people arrived at the scene and surrounded plaintiffs. Id. During the incident, Defendant Zhu grabbed Plaintiff Li's shoulder bag, while the crowd yelled out "[g]rab her and hold her," "[k]ill her," and "[b]eat her to death." Id. ; Plts.' Supp. Facts at ¶ 39 ("[W]hile Plaintiff Li was held captive by Defendants Li, Zhu and an angry mob, Defendants' associates surrounded her repeatedly threatened to kill or eradicate her."). The violence lasted about thirty minutes until police arrived. Compl. at ¶ 29.

d. Plaintiff Zhang Peng

After being detained for his practice of Falun Gong while living in China, Plaintiff Zhang Peng ("Plaintiff Zhang") was physically assaulted on July 14, 2014, by Defendant Wan as he walked up and down Main Street in front of 136-06 Roosevelt Avenue. Compl. at ¶ 28.

e. Plaintiff Lo Kitsuen

On February 8, 2014, Plaintiff Lo Kitsuen ("Plaintiff Lo"), while participating in a Chinese New Year's parade, was confronted by a group of CACWA supporters, Chinese Communist Party loyalists, and others who violently intimidated him and shouted "[d]own with the evil cult." Compl. at ¶ 22. On December 17, 2014, while working at the 136-06 Roosevelt Avenue table, Plaintiff Lo was physically attacked and verbally abused by Defendant Li. Id.

f. Plaintiff Hu Yang

On July 21, 2014, Plaintiff Hu Yang ("Plaintiff Hu") was aggressively shoved and kicked by Defendant Wan in an alleged attempt to steal his cell phone as he walked near the 136-06 Roosevelt Avenue table. Compl. at ¶ 25. Three days later, Defendant Wan confronted Plaintiff Hu at the same location, saying "[y]ou are even worse than dogs. I'm going to round you all up and exterminate all of you within three months. I'll strangle all of you to death." Id. ; Plts.' Supp. Facts at ¶ 37 ("During a physical attack of Hu Yang ... Defendant Wan made her intent to eliminate Falun Gong believers by strangling or in other ways disappearing them."); Plts.' Supp. Facts at ¶ 40 (noting that Defendant Wan said, "You guys are less than dogs. I am going to chose you guys to death. I am going to eliminate you all."). Plaintiff Gao witnessed both incidents. Compl. at ¶ 26.

g. Plaintiff Zhang Jingrong

On January 16, 2015, Plaintiff Zhang Jingrong ("Plaintiff Zhang Jingrong"), while staffing the 41-70 Main Street table, was approached by Defendant Wan, who knocked religious materials off of the table and held a piece of paper that said, "I will eradicate you all from the United States. I have a list of all of your names on my paper. It is of no use if you call the police." Compl. at ¶ 20; Plts.' Supp. Facts at ¶ 40 (noting that Defendant Wan said, "I will chase you to the end of the world and I will kill all of you" and "I will kill you all. Here is a list of all your names. It's no use for you to call the police.").

h. Plaintiff Zhang Cuiping and Plaintiff Bian Hexiang

Both Plaintiff Zhang Cuiping and Plaintiff Bian Hexiang were targeted because of defendants' mistaken belief that they were Falun Gong practitioners. Compl. at ¶ 32. On January 3, 2015, Defendant Wan attempted to steal Plaintiff Zhang Cuiping's camera. He made death threats, telling her, "[y]ou don't know how you will die. I won't kill you, but someone else will." Id. at ¶ 33; Plts.' Supp. Facts at ¶ 40 (noting "[Wan] [t]hreaten[s] me if she doesn't kill me someone kill me; on many occasions, she said that."). On March 9, 2009, Defendants Li and Zhu attacked Plaintiff Bian Hexiang. Compl. at ¶ 33; Plts.' Supp. Facts at ¶ 38 ("As Defendants Chu, Li and an angry mob chased and grabbed at him, they spoke repeatedly of eliminating ... [him].").

2. Defendants' Accounts

Defendants offer a starkly different account of relevant events. They claim that they were non-violently opposing plaintiffs' political beliefs orally when they were attacked by plaintiffs.

a. Defendant Zhu Zirou

Defendant Zhu was confronted by plaintiffs several times on Main Street in Flushing. Plaintiffs harassed Zhu about his disability-he uses a wheel chair-and threatened him. Defs.' Counterstatement at ¶¶ 20-21 (noting that Zhu testified: "And then [Plaintiff Xu Ting] start to say something about karma, something-something that tried to transform my thinking. She said even something bad, like, you have to go die. And then she try to say something really bad, for example, about I-I should go to die, something like that.").

Plaintiff Bian assaulted Defendant Zhu in March 2009, knocking him out of his wheel chair and pushing him to the ground. Id. at ¶ 23. The verbal attacks based on Defendant Zhu's disability were upsetting to him. Id. at ¶ 22.

b. Defendant Li Huahong

Defendant Li has been harassed by plaintiffs many times on Main Street in Flushing. Id. at ¶ 24. Plaintiffs have provoked and assaulted her, on occasion throwing rocks or sharp objects. Id. at ¶¶ 25-26. Many of the confrontations occurred on the dates that plaintiffs alleged in the complaint they were victims. Id. at ¶ 27.

c. Defendant Wan Hongjuan

Plaintiff Zhang used to follow Defendant Wan around Flushing. Id. at ¶ 31. Zhang would threaten her, by telling her that "Falun Gong is a very strong, very big organization." Id. On one occasion, Zhang physically confronted Wan; she hit her and grabbed her hair. Id.

D. Procedural History

Thirteen plaintiffs, Zhang Jingrong, Zhou Yanhua, Zhang Peng, Zhang Cuiping, Wei Min, Lo Kitsuen, Li Xiurong, Cao Lijun, Hu Yang, Gao Jinying, Cui Lina, Xu Ting, and Bian Hexiang ("Plaintiffs"), sued defendants: the Chinese Anti-Cult World Alliance (CACWA), Michael Chu, Li Huahong, Wan Hongjuan, Zhu Zirou, and five unnamed individuals on March 2, 2015.

Plaintiffs seek damages, a declaratory judgment, and injunctive relief. See Compl. at ¶ 1. The court's view of which claims can be tried are sketched in Part I(B), supra . The pleadings can be summarized as follows:

COMPLAINT Cause of Action Plaintiffs Defendants 1 Assault & Battery Zhang Jingrong; Zhou Yanhua; All Defendants Zhang Peng; Zhang Cuiping; Wei Min; Lo Kitsuen; Hu Yang; Gao Jinying; Cui Lina; Xu Ting 2 Bias Related Violence & All Plaintiffs All Defendants Intimidation (New York Civil Rights Law § 79-n) 3 Conspiracy to Violate Civil Zhang Jingrong; Zhou Yanhua; All Defendants Rights (42 U.S.C. § 1985(3) Zhang Cuiping; Lo Kitsuen; Wei (Deprivation Clause) Min; Hu Yang; Gao Jinying; Cui Lina; Zhang Peng; Li Xiurong; Cao Lijun; Bian Hexiang 4 Conspiracy to Prevent Li Xiurong; Cao Lijun; Zhou All Defendants Authorities from Providing Yuanhua*; Min Wei; Lo Kitsuen; Full, Free, Equal Access to Zhang Jingrong; Zhou Yuanhua; Public Spaces (42 U.S.C. § Hu Yang; Cui Lina; Gao Jinying; 1985(3)) (Hindering Clause) Zhang Peng 5 Interference with Religious Zhang Jingrong; Zhou Yanhua; All Defendants Freedom (18 U.S.C. § 248) Lo Kitsuen; Wei Min; Hu Yang; (Clinic Access Statute) Gao Jinying; Cui Lina; Zhang Peng; Li Xiurong; Cao Lijun 6 Negligence Zheng Jingrong; Zhou Yanhua; CACWA; Chu; Li Lo Kitsuen; Xu Ting; Min Wei; Hu Yang; Gao Jinying; Cui Lina; Zhang Peng; Zhang Cuiping 7 Intentional Infliction of Zheng Jingrong; Zhou Yanhua; All Defendants Emotional Distress Lo Kitsuen; Xu Ting; Min Wei; Hu Yang; Gao Jinying; Cui Lina; Zhang Peng; Zhang Cuiping 8 Public Nuisance Zheng Jingrong; Zhou Yanhua; All Defendants Lo Kitsuen; Xu Ting; Min Wei; Hu Yang; Gao Jinying; Cui Lina; Zhang Peng; Zhang Cuiping

Defendants moved to dismiss plaintiffs' complaint. Mem. in Supp. of Defs.' Mot. to Dismiss, ECF No. 18, Ex. 1. The magistrate judge recommended denial. R. & R., ECF No. 35. The late Judge Sandra Townes, then presiding, adopted the recommendation. See Order Adopting R. & R., ECF No. 38.

Defendants answered, asserting a counterclaim, and amended their answers to include additional counterclaims. The court's present view of these counterclaims is summarized in Part I(B), supra . The counterclaims are:

ANSWER Counterclaim Defendants Plaintiffs 1. Assault & Battery Wan Hongjuan Unspecified 2. Assault & Battery Huahong; Zirou Unspecified FIRST AMENDED ANSWER Assault & Battery Wan Hongjuan Unspecified Assault & Battery CACWA; Chu; Huahong; Zirou Unspecified SECOND AMENDED ANSWER Assault & Battery Wan Hongjuan Unspecified 3. Intentional Infliction of Emotional Distress Wan Hongjuan Unspecified 4. Negligence Wan Hongjuan Unspecified Assault & Battery Huahong; Zirou Unspecified 5. New York Civil Rights Law § 79-n Zirou Bian Hexiang; Zhou Yanhua; Li Xiurong; Xu Ting 6. Intentional Infliction of Emotional Distress Zirou Bian Hexiang; Zhou Yanhua; Li Xiurong; Xu Ting 7. Negligence CACWA; Chu; Huahong; Zirou Unspecified

The parties cross-moved for summary judgment. The presiding district judge, Sandra Townes, died while the motions were pending. The case was then reassigned to the judge presently presiding.

Plaintiffs and defendants have aggregated hundreds of individual claims. Thirteen plaintiffs brought eight causes of action against five individual defendants. The counterclaims are also numerous.

The court gave notice to the parties that it was considering summary judgment on all claims and counterclaims because of the dubious nature of some claims and unmanageability of a jury trial that would necessitate hundreds of unanimous decisions. Mar. 26, 2018 Order, ECF No. 130; Hr'g Tr. 18:4-13. As now construed, the jury would have to make some 234 decisions. They are as follows:

Plaintiffs' Claims Cause of Action Plaintiffs Defendants Number of Issues to be decided Assault & Battery Zhang Jingrong; All Defendants 50 Zhou Yanhua; Zhang Peng; Zhang Cuiping; Wei Min; Lo Kitsuen; Hu Yang; Gao Jinying; Cui Lina; Xu Ting Bias Related All Plaintiffs All Defendants 65 Violence & Intimidation (New York Civil Rights Law § 79-n) Interference with Zhang Jingrong; All Defendants 50 Religious Freedom Zhou Yanhua; Lo (18 U.S.C. § 248) Kitsuen; Wei Min; (Clinic Access Hu Yang; Gao Statute) Jinying; Cui Lina; Zhang Peng; Li Xiurong; Cao Lijun Assault & Battery All Defendants All plaintiffs 65 New York Civil Zirou Bian Hexiang; Zhou 4 Rights Law § 79-n Yanhua; Li Xiurong; Xu Ting

Pursuant to present claims and parties the total number of factual issues a jury must decide unanimously is 234.

III. Law

A. Summary Judgment Standard of Review

Summary judgement is appropriate when, "after construing the evidence in the light most favorable to the nonmoving party and drawing all reasonable inferences in its favor, there is no genuine issue as to any material fact." Sledge v. Kooi, 564 F.3d 105, 108 (2d Cir. 2009). The non-moving party must provide "specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (internal quotation omitted).

Under Federal Rule of Civil Procedure 56(f), after giving notice and a time to respond, a district court may "grant summary judgment for a nonmovant" or "grant the motion on grounds not raised by a party."

The Supreme Court has directed district courts to actively engage with cases at early procedural stages using their "judicial experience and common sense." Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ; cf. Fed. R. Civ. P. 1 ("[The Federal Rules of Civil Procedure] should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding."). It is this court's practice-and has been for some years-to provide parties an opportunity to be heard early in a litigation. See Arthur R. Miller, Simplified Pleading, Meaningful Days in Court, and Trials on the Merits: Reflections on the Deformation of Federal Procedure, 88 N.Y.U. L. Rev. 286, 344 n.214 (2013) (noting this court's approach of meeting with the parties before ruling on a motion to dismiss in order to get "a sense of the litigation").

When a dispositive motion is filed, the court requires the parties and their attorneys to appear for a hearing. These hearings, a mixture of attorney argument and witness testimony, allow the court to assess the case and provide litigants with a chance to articulate their position in the lawsuit in a way relying on the papers and arguments of counsel alone cannot achieve. Outstanding factual questions can be directed to the litigants, allowing the court to efficiently decide motions on a more accurate factual record. These hearings also reassure the parties that it is the court itself-not a clerk-that is deciding the case after listening to them.

B. Religion in American Law

Plaintiffs' claims under 18 U.S.C. § 248 and New York Civil Rights Law § 79-n require a showing of religious discrimination. The court holds as a matter of law that Falun Gong is a religion for purposes of the present litigation. American constitutional concerns underlie the legal meaning of religion.

1. Historical Account

a. First Amendment Drafting History

Writing several years before the passage of the Bill of Rights, James Madison-the principle author of the First Amendment-described his inclusive, broad view of religion:

Because we hold it for a fundamental and undeniable truth, "that Religion or the duty which we owe to our Creator and the manner of discharging it, can be directed only by reason and conviction, not by force or violence." [Virginia Declaration of Rights, art. 16.] The Religion then of every man must be left to the conviction and conscience of every man ; and it is the right of every man to exercise it as these may dictate . This right is in its nature an unalienable right. It is unalienable, because the opinions of men, depending only on the evidence contemplated by their own minds cannot follow the dictates of other men: It is unalienable also, because what is here a right towards men, is a duty towards the Creator. It is the duty of every man to render to the Creator such homage and such only as he believes to be acceptable to him. This duty is precedent, both in order of time and in degree of obligation, to the claims of Civil Society. Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governour of the Universe: And if a member of Civil Society, who enters into any subordinate Association, must always do it with a reservation of his duty to the General Authority; much more must every man who becomes a member of any particular Civil Society, do it with a saving of his allegiance to the Universal Sovereign. We maintain therefore that in matters of Religion, no man's right is abridged by the institution of Civil Society and that Religion is wholly exempt from its cognizance. True it is, that no other rule exists, by which any question which may divide a Society, can be ultimately determined, but the will of the majority; but it is also true that the majority may trespass on the rights of the minority.

James Madison, Memorial and Remonstrance Against Religious Assessments (June 20, 1785) (emphasis added). In Madison's view, the "conviction and conscience of everyman" was the touchstone of religion. Id. No longer was it the Established Church of England.

Prior to the enactment of the Bill of Rights, religion was mostly left out of the United States Constitution. See Frank Lambert, The Founding Fathers and the Place of Religion in America 14 (2003) ("For the delegates at the Constitutional Convention in 1787, religion was a divisive issue that threatened the union they were trying to forge. Fractured by pluralism and enflamed by sectarianism, Americans were unlikely to agree upon any federal establishment, no matter how broadly stated. Thus the delegates opted to avoid conflict by making no mention whatever of religion in the proposed Constitution except in the ban against all religious tests. Thereby, they gave legal standing to the free religious market place.").

The idea of equating religion with "conscience" became part of First Amendment history. What is now part of the First Amendment to the United States Constitution, in its initial draft by Madison read: "The civil rights of none shall be abridged on account of [1] religious belief or worship , [2] nor shall any national religion be established, [3] nor shall the full and equal rights of conscience be in any manner, or on any pretext, inf