Reilly v. City of Harrisburg
Reilly v. City of Harrisburg
Opinion of the Court
This First Amendment case comes before the court on remand from the Court *455of Appeals for the Third Circuit for reconsideration of Colleen Reilly and Becky Biter's ("Plaintiffs")
I. Factual and Procedural Background
As set forth in this court's prior opinion in Reilly I , the relevant factual background is as follows:
Plaintiffs are individual citizens of Pennsylvania who regularly provide what they euphemistically refer to as "sidewalk counseling" outside of two health care facilities in Harrisburg, Pennsylvania that perform, among other procedures, abortions. Plaintiffs engage in leafletting, prayer, and individual conversations with women who are attempting to enter the health care facilities in an effort to dissuade them from obtaining abortions.
On November 13, 2012, Defendant Harrisburg City Council adopted Ordinance No. 12-2012 entitled "Interference With Access To Health Care Facilities (the "Ordinance")," which became effective on November 23, 2012. [See ] Harrisburg, Pa. Mun. Code § 3-371 (2015), http://ecode360.com/13739606. The Ordinance's stated purpose is "to promote the health and welfare of [Harrisburg] residents and visitors to [Harrisburg]'s health care facilities, as well as the health and welfare of those who may wish to voice their constitutionally protected speech outside of such health care facilities." Harrisburg, Pa. Mun. Code, § 3-371.2C. The Ordinance makes it illegal for individuals, other than police or emergency personnel performing official functions, or employees of health care facilities that are assisting patients to enter or exit the facilities, to "knowingly congregate, patrol, picket or demonstrate in a zone extending 20 feet from any portion of an entrance to, exit from, or driveway of a health care facility."Id. at § 3-371.4A.
Reilly I at 624-25 (footnote and citations to the record omitted).
Plaintiffs filed their complaint on March 24, 2016, alleging, inter alia , that the "buffer zones" created by the Ordinance made it impossible for them to counsel patients and distribute pamphlets in opposition to abortion at certain health care facilities within the City limits. (Doc. 1, ¶¶ 40-41, 50, 56.) Plaintiffs argue that the Ordinance violates their First Amendment rights to free speech, exercise of religion, and assembly, as well as their Fourteenth Amendment rights to equal protection and due process. On March 25, 2016, Plaintiffs filed the instant motion seeking to preliminarily enjoin enforcement of the Ordinance due to the irreparable harm it causes to *456their First Amendment rights. (See Doc. 3.) Defendants filed a brief in opposition to Plaintiffs' motion for a preliminary injunction and soon thereafter filed a motion to dismiss for failure to state a claim upon which relief can be granted. (Docs. 15, 16.) After briefing on both motions, this court issued an order denying Defendants' motion to dismiss with respect to Plaintiffs' claims under the First Amendment, granting it with respect to all other claims, and denying Plaintiffs' motion for a preliminary injunction. (Doc. 45.) Plaintiffs subsequently appealed this court's order to the Third Circuit, which reversed this court's order to the extent that it denied Plaintiffs' motion for a preliminary injunction, and remanded the matter to this court for further consideration.
On remand, this court held an evidentiary hearing on Plaintiffs' motion for a preliminary injunction on October 31, 2017, and November 1, 2017. Prior to the hearing, Defendants submitted documentary evidence including declarations from City officials, Planned Parenthood employees, and Plaintiffs, including Rosalie Gross, maps of the areas around the clinic, evidence of the City's financial hardship, video taken around the Planned Parenthood clinic, audio from the committee hearing at which the Ordinance was discussed, and drafts and supporting documentation regarding the Ordinance. Defendants submitted exhibits that included a declaration from Harrisburg police officers, the text of City ordinances, a draft version of the Ordinance, and memoranda and correspondence between City officials and Planned Parenthood employees. At the hearing, Defendants called Councilman Brad Koplinski ("Koplinski"), City Solicitor Neil Grover ("Grover"), City Engineer Wayne Martin ("Martin"), Officer Chad Sunday ("Sunday"), a City Financial Coordinator, Gerald Cross ("Cross"), and Planned Parenthood employees Andrew Guth ("Guth"), Lindsey Mauldin ("Mauldin"), and Sari Stevens ("Stevens"). Plaintiffs testified on their own behalf at the hearing, but did not present additional witnesses. The record is now closed, and the parties have submitted supplemental briefs in support of and in opposition to Plaintiffs' motion. Accordingly, the matter is now ripe for disposition.
II. Discussion
The First Amendment right to freedom of speech is fundamental, yet not without limit. Our Supreme Court has repeatedly held that such limits exist. See, e.g. , Brandenburg v. Ohio ,
*457Plaintiffs move for a preliminary injunction of the enforcement of the Ordinance, arguing that the Ordinance abrogates their First Amendment right to free speech in public fora because it is a content-based restriction that prohibits only anti-abortion speech and that it is not narrowly tailored to serve a legitimate governmental interest. Defendants had previously moved to dismiss Plaintiffs' complaint in its entirety for failure to state a claim under Rule 12(b)(6); however, this court previously denied Defendants' motion, and Defendants did not appeal that holding. Accordingly, we now resolve Plaintiffs motion for a preliminary injunction under the standard articulated by the Third Circuit in Reilly II .
The four factors that a court must consider in determining whether a petitioner is entitled to a preliminary injunction remain unchanged:
(1) a reasonable probability of eventual success in the litigation, and (2) that it will be irreparably injured ... if relief is not granted.... [In addition,] the district court, in considering whether to grant a preliminary injunction, should take into account, when they are relevant, (3) the possibility of harm to other interested persons from the grant or denial of the injunction, and (4) the public interest.
Reilly II at 176 (quoting Del. River Port Auth. v. Transam. Trailer Transport, Inc. ,
[A] movant for preliminary equitable relief must meet the threshold for the first two "most critical" factors: it must demonstrate that it can win on the merits (which requires a showing significantly better than negligible but not necessarily more likely than not) and that it is more likely than not to suffer irreparable harm in the absence of preliminary relief. If these gateway factors are met, a court then considers the remaining two factors and determines in its sound discretion if all four factors, taken together, balance in favor of granting the requested preliminary relief.
....
In deciding whether to issue a preliminary injunction, plaintiffs normally have the burden of demonstrating a sufficient likelihood of prevailing on the merits. However, in First Amendment cases where "the government bears the burden of proof on the ultimate question of a statute's constitutionality, plaintiffs must be deemed likely to prevail for the purpose of considering a preliminary injunction unless the government has shown that plaintiffs' proposed less restrictive alternatives are less effective than the statute."
Reilly II at 179-80 (footnotes and alterations omitted) (quoting Ashcroft v. ACLU ,
A. Content Neutrality
As discussed in this court's prior decision, an ordinance is subject to strict scrutiny if it is a content-based restriction on speech. Reed v. Town of Gilbert, Ariz. , --- U.S. ----,
Conversely, "[a] regulation that serves purposes unrelated to the content of expression" is content neutral and subject to intermediate scrutiny, "even if it has an incidental effect on some speakers or messages but not others." Ward v. Rock Against Racism ,
Defendants argue that this Court should decline to reexamine its prior holding in Reilly I on the issue of content neutrality because the Third Circuit did not reverse on that issue and the law of the case doctrine precludes review of our prior decision without extraordinary circumstances. (Doc. 101, pp. 9-11) (citing Habecker v. Clark Equip. ,
In support of their first argument, Plaintiffs cite to several cases holding that a law or regulation is not content neutral if it was enacted due to "undesirable effects that arise from the 'direct impact of speech on its audience' or 'listeners' reactions to speech.' " McCullen v. Coakley , --- U.S. ----,
The regulation [limiting zoning of] theaters that specialize in adult films ... applied only to a particular category of speech, its justification had nothing to do with that speech. The content of the films being shown inside the theaters was irrelevant and was not the target of the regulation. Instead, the ordinance was aimed at the secondary effects of such theaters in the surrounding community, effects that are almost unique to theaters featuring sexually explicit films, i.e. , prevention of crime, maintenance of property values, and protection of residential neighborhoods. In short, the ordinance in [ Renton v. Playtime Theatres, Inc. ,475 U.S. 41 ,106 S.Ct. 925 ,89 L.Ed.2d 29 (1986) ] did not aim at the suppression of free expression.
Respondents ... argu[e] that here too the real concern is a secondary effect, namely, our international law obligation to shield diplomats from speech that offends their dignity. We think this misreads Renton . We spoke in that decision only of secondary effects of speech, referring to regulations that apply to a particular category of speech because the regulatory targets happen to be associated with that type of speech. So long as the justifications for regulation have nothing to do with content, i.e. , the desire to suppress crime has nothing to do with the actual films being shown inside adult movie theaters, we concluded that the regulation was properly analyzed as content neutral.
Regulations that focus on the direct impact of speech on its audience present a different situation. Listeners' reactions to speech are not the type of "secondary effects" we referred to in Renton .
Here, the City did not seek to ban speech regarding abortion because it "offended the dignity" of those seeking to patronize the clinics. The City sought to limit the areas in which any and all protesters
Plaintiffs additionally rely on Christian Knights of Ku Klux Klan Invisible Empire, Inc. v. D.C. ,
Plaintiffs next cite a statement made by Neil Grover, Defendants' corporate designee and city solicitor, regarding the enforcement of the Ordinance with respect to congregating. Grover testified that "[i]f two people were talking about anything of substance, I think the answer is, they're congregating." (Hearing Transcript ("Tr."), p. 355.) Plaintiffs argue that this statement indicates that the Ordinance would require police officers to determine the content of the speech before enforcing it. This argument is patently without merit. Assuming, arguendo , that Grover's method of interpretation is binding on the City for future enforcement, no inquiry into the content is required to determine if a conversation is substantive. Grover's comments were used to illustrate that the Ordinance did not prohibit two individuals *461from engaging in a passing greeting: "If two people were walking in the same direction ... and they're talking ... good morning, good afternoon, whatever, I don't know if those people would be considered congregating by any definition." (Id. ) Plaintiffs' argument assumes that police officers are ignorant of social norms and average human behavior. If Plaintiffs' assumption were true, police would be incapable of distinguishing a woman walking down the street with a paramour from a woman being harassed or accosted by a stranger. A police officer is more than capable of distinguishing calm pamphleting by an individual from a group of people marching up and down the street with banners and bullhorns. An officer need not hear the precise content of what is being said, but can easily distinguish normal social interaction from protest or assault without regard to the content of the speech. See Hill v. Colorado ,
Finally, Plaintiffs argue that Counsel for Defendants admitted at argument before the Third Circuit that the enforcement of the Ordinance would depend on the content of the speech. Counsel responded to a line of questioning from Circuit Judge Jordan wherein Judge Jordan asked whether panhandling or leafletting for a business would be considered "demonstrating" under the Ordinance. Counsel posited that panhandling and leaflet distribution may not be covered, but distribution of anti-abortion pamphlets would be prohibited. Plaintiffs cite no Third Circuit precedent for their argument that a legal theory posited by counsel at an appellate argument is binding on the court. The cases from other circuits cited by Plaintiffs relate to attorneys conceding particular arguments or claims at oral arguments. Kohler v. Inter-Tel Techs. ,
Finding no merit to Plaintiffs' new arguments that the Ordinance is content based, the court reaffirms is prior holding that the Ordinance is content neutral and can be justified "without reference to the content of the regulated speech." Reed ,
B. Likelihood of Success on the Merits
To determine whether Plaintiffs are entitled to a preliminary injunction, *462the court must next examine whether Plaintiffs have a likelihood of success on the merits of their claim, applying an intermediate scrutiny analysis to the Ordinance. Under the intermediate scrutiny analysis, Plaintiffs would ordinarily need to show that the Ordinance is "not narrowly tailored to serve a significant governmental interest" and fails to "leave open ample alternative channels for communication of information." McCullen ,
i. Burden on Plaintiffs' right to free speech.
Irrefutably, the Ordinance places some burden on Plaintiffs' right to free speech, but to determine whether the ordinance is narrowly tailored to achieve the City's legitimate interests, the court must define the extent of the burden upon Plaintiffs' rights. Plaintiffs first argue that the Ordinance places a substantial burden on their First Amendment right to free speech. Defendants counter that any burden faced by Plaintiffs is minimal and more than justified by the City's legitimate interests. Plaintiffs do not argue that they are unable to be seen and heard by clinic patients from outside the buffer zone. Instead, Plaintiffs suggest that the First Amendment includes a right to intimate conversation and to "be so close you can reach out and hug [clinic patients]." (Doc. 88, p. 31 of 100.) There is no such right to make physical contact with unconsenting strangers couched in the First Amendment, but, despite the substantial evidence that Plaintiffs and other protesters are more likely to offer patients virulent invective than a warm embrace, the Supreme Court in McCullen has held that individuals such as Plaintiffs are entitled to have their speech heard in an effective manner. McCullen ,
In Brown , the city of Pittsburgh had enacted an ordinance that consisted of a two-pronged "buffer" and "bubble" zone.
*463The buffer zone prevented congregating, patrolling, picketing, or demonstrating within 15 feet of clinic entrances and exits, while the bubble zone extended 100 feet from the clinic entrance. Within the bubble zone, protesters were prohibited from coming within 8 feet of any individuals attempting to access the clinic. The Brown Court enjoined the enforcement of the bubble zone, but allowed the buffer zone to remain. This is consistent with the Supreme Court's mandate in McCullen ; a counsellor could easily approach a potential patient outside the buffer zone to hand out a leaflet or converse with someone inside the buffer zone at a normal volume. A key difference between the Pittsburgh ordinance and the Massachusetts ordinance in McCullen is the specific type of behavior prohibited. The Massachusetts ordinance made it a crime simply to knowingly stand within the 35 foot buffer zone. McCullen ,
The Supreme Court in McCullen held that counsellors have a right not only to speak in public fora, but to have their speech heard in an effective manner. Plaintiffs rightly point out that in McCullen "petitioners [were] effectively excluded from a 56-foot-wide expanse of the public sidewalk in front of the [Boston] clinic" and that exclusion placed "serious burdens" on the petitioners' ability to engage in sidewalk counselling. See McCullen ,
Although the physical size of the buffer zone is only one factor to be considered in determining the limits imposed by the Ordinance, it is the factor that has garnered the most attention from the parties in this case. Plaintiffs repeat throughout their briefs that the Ordinance creates an effective 70-foot barrier around the clinic because of the combination of the 20-foot buffer zones. Specifically, the buffer zones extend from either edge of the driveway and the outermost part of the clinic doorway.
Defendants demonstrate that the buffer zones remove relatively little space that was previously available to Plaintiffs. The sidewalk comprising the northernmost expanse of the buffer zone includes approximately 15 feet of a neighbor's driveway, which Plaintiffs were previously prohibited from blocking. (Tr., p. 131-132, 136; Pls. Ex. 9, p. 4.) Thus, only five feet of sidewalk between the edge of the clinic driveway and the neighbor's driveway has been restricted. (Id. at 132.) Notably, Defendants presented evidence that the City had previously considered a somewhat larger buffer zone, but reduced the expanse to give Plaintiffs a four-foot wide area to protest directly in front of the clinic entrance, but out of the way of patients walking in and out of the clinic. (Id. at 49-51, 131-132; Doc. 59-7, p. 51; Defs. Ex. 20; Pls. Ex. 9, p. 4.) Approximately one-third of the southernmost portion of the buffer zone includes private property owned by Planned Parenthood from which Plaintiffs were already restricted. (Tr. at 143-144; Pls. Ex. 9, p.4.) Plaintiffs curiously complain that the four-foot area directly in front of the clinic is useless for counselling, yet seem to argue that the five-foot area between the Planned Parenthood driveway and the *465neighboring driveway is essential to their purpose. (Doc. 88, p. 39.) Thus, the sum total of the area restricted by the buffer zones is between 15 to 20 feet of sidewalk on one side of the street. This appears to be in contrast to the buffer zone in McCullen , which encompassed "a 56-foot-wide expanse of the public sidewalk " and "more than 93 feet of the sidewalk (including the width of the driveway) and extending across the street and nearly six feet onto the sidewalk on the opposite side. " McCullen ,
To reiterate, the evidence presented by both parties demonstrates that the Ordinance effectively restricts Plaintiffs and other protesters from performing certain acts of "counselling" on 15-20 feet of sidewalk that was previously available to them. In essence, this constitutes a minor physical restriction on a profound right. It is unclear from prior precedent whether any appreciable physical restriction on Free Speech is "substantial" under the analysis clarified by McCullen . Accordingly, although the limitation is slight in many respects, the court concludes that it is substantial enough to shift the burden to the City to show that it tried less-restrictive alternatives that failed or seriously considered other available alternatives.
ii. Consideration of less-restrictive alternatives
Because Plaintiffs have met their burden to show that the buffer zones place a substantial limit on their free speech rights, the City now bears the burden to show that it considered less-restrictive alternatives or that less-restrictive alternatives were tried and failed. Reilly II at 180. At the evidentiary hearing, Defendants presented evidence of the difficulty enforcing other laws that would have prevented the acts complained of by the City, the City's financial difficulty increasing its police force, and the documentary evidence considered by the City council. The City also introduced audio of the hearing and related testimony from Planned Parenthood employees. The City argued that this evidence, taken together, demonstrates that alternative methods had failed and that the City considered numerous alternatives, but was constrained by its dire financial limitations from moving forward with other methods of enforcement. Plaintiffs argue that the City failed to affirmatively consider alternative, less-restrictive, methods of achieving its legitimate governmental interest. In support of this argument, Plaintiffs refer to the brevity of the hearing at which the Ordinance was enacted and the surfeit of alternative laws that would achieve the same goal of preventing protesters from interfering with clinic patients.
Plaintiffs argue that the Defendants bear the burden of producing a "meaningful record" that the City "closely examined and ruled out for good reason" less-restrictive alternatives to the Ordinance. (Doc. 88, p. 56 (citing Bruni ,
Moreover, Plaintiffs argue that the City was required to systematically analyze the available alternatives during the single hearing put on the record. The City clearly received input from its citizens and had available police reports of calls made by Planned Parenthood and testimony that protesters were impeding access to the clinic and threatening and intimidating patients. Bruni and McCullen did not specifically require that the local government produce all available evidence and consider alternatives at a single, recorded hearing before taking action. Instead, they require only that "substantially less-restrictive alternatives were tried and failed, or that the alternatives were closely examined and ruled out." Bruni ,
The City has introduced evidence of the specific consideration given to the Ordinance before its passage. The audio recording of the hearing at which the Ordinance was discussed includes approximately 18 minutes of discussion regarding the Ordinance, which amounts to 12 pages of transcripted text. (Defs. Ex. 26.) The hearing itself includes testimony by a Planned Parenthood employee, Guth, and a neighborhood resident, Yost, both describing the harm caused in the neighborhood surrounding the clinic. Specifically, Guth read into the record a statement by Heather Shumaker, Director of Public Affairs for Planned Parenthood, which described that protesters: (1) would follow patients from the sidewalk to the clinic door, screaming at them, insulting them, and calling them murderers; (2) would take pictures of patients and employees and write down license plate numbers, to insinuate threats of future harm or harassment; (3) would trespass onto clinic property to bang on windows or take photos inside the clinic; (4) would wait around either side of the clinic driveway until a car attempted to enter the driveway, then slowly walk across it in an attempt to impede and deter cars from entering the clinic parking lot. (See Pls. Ex. 20.) Yost testified that the protesters generally disturbed neighborhood residents with loud yelling and blocking the sidewalk on a regular basis. Yost further testified that she had participated in "counter-protests" around the clinic. At *467these counter-protests, Yost stated that anti-abortion protesters would brandish pepper spray at the counter-protesters and scream into the counter-protesters' faces.
A draft version of the Ordinance was originally supplied by Planned Parenthood to Councilman Koplinski to address problems seen at the clinic parallel to problems addressed at other clinics throughout the country. (Doc. 59-4, pp. 7-9.) After the draft was given to Koplinski, it was submitted to the City's Law Bureau for review. (Id. ) As a matter of course, the Bureau would review the constitutionality of any ordinance before it was presented to the full council for review. (Id. ) Although we give no deference to the determination of the constitutionality by the Bureau, it is relevant for purposes of determining whether the City gave due consideration to alternatives that the City's Law Bureau reviewed the statute. After review by the Law Bureau, the proposed ordinance was read at a "reading meeting" of the City council. (Doc. 59-5, pp. 46-47.) This meeting was considered a mere formality at which the text of the draft was read aloud at a public meeting. (Id. ) After the reading meeting, the bill was submitted to a committee of the council for consideration. (Id. at 47.) Between the initial reading and the committee consideration, the draft was modified in two substantive respects. First, driveways were included in the areas covered by the buffer zones. (Tr., p. 49.) Second, the Planned Parenthood draft included a buffer zone of 24 feet as opposed to 20 feet. (Id. ) The committee considered 15-foot buffer zones and larger zones up to 30 feet. (Doc. 59-5, p. 49.) The 20-foot buffer was considered to be the "middle ground where it was a safe enough space for people to feel comfortable to be able to gain access to and from the clinic and also where individuals could speak at a reasonable voice ... to be able to get their points across." (Id. ) Thus, the City has presented evidence that the distance was not arbitrarily chosen, but was specifically considered the most appropriate distance to adequately protect the employees and patients of the local clinics.
iii. Less-restrictive alternatives were tried and failed
Plaintiffs have failed to show a feasible, less-restrictive alternative was available to the City. See Reilly II at 179-80 ; see also Traditionalist Am. Knights of the Ku Klux Klan v. City of Desloge, Mo. ,
Plaintiffs cite five relevant laws and ordinances that they suggest would be less-restrictive alternatives to the Ordinance: (1) 18 Pa. Code 3503(b) (Defiant Trespass);
*468(2) Harrisburg Ordinance 3-341 (disturbing the peace); (3) Harrisburg Ordinance 3-343 (noise disturbances); (4) Harrisburg Ordinance 3-339 (malicious loitering); and (5) the federal Freedom of Access to Clinic Entrances Act ("FACE"), 18 U.S.C. 248. Because Bruni and McCullen require evidence that "substantially less-restrictive alternatives were tried and failed, or that the alternatives were closely examined and ruled out," the court may examine whether these existing statutes were effective and need not limit its inquiry to whether the City council affirmatively acknowledged their failure at a hearing. Bruni ,
In order to effectively enforce these existing laws, the council reasoned that increased police presence would be necessary, but knew that it was without the financial resources to do so. The council was specifically informed of the City's inability to hire new police officers to increase patrol routes. The Pennsylvania Department of Community and Economic Development ("DCED") issued several requirements for the City's receivership status in November 2011. (Defs. Ex. 6; Tr. 230.) Relevantly, no additional officers could be hired or expenditures of over $2,500 could be made without prior DCED approval. (Id. ) This notice from DCED was addressed directly to the Council President. (Id. ) The City has produced an abundance of evidence demonstrating the City's poor financial standing. (See Defs. Exs. 2, 3, 5, 6.)
We were, as a city, we had gotten into some significant financial difficulty; 300 million dollars in debt due to a botched incinerator project. And we were trying to find out ways to get out of that threatened bankruptcy. This was not, of course, only a local story, it was a statewide and national story as well. I did interviews on CNN and other outlets. It was well-known that the city was having extreme financial difficulties in 2011 and 2012. We were making some significant decisions as to how to eliminate that debt. But we were under a receiver, state-appointed, and had very strict financial controls over the city.
....
We had multiple scares in which the city was not going to be able to make payroll. Only emergency loans were able to take care of that. Police situation was not good. Our compliment on the streets was as low as four officers on the street at any particular time. You could say that there literally were street lights out. I mean, maybe not to the point of keeping the lights on at City Hall, but pretty darn close.
(Tr., p. 26.)
Q. Now did the city have the financial resources to station a police officer at both Hillcrest and at Planned Parenthood to enforce statutes such as the trespass ordinance?
A. Absolutely not.
(Tr., p. 34.)
Because of these financial limitations, the City argues that it is unable to afford additional police officers to patrol the area around Planned Parenthood on a regular basis. Cf. McCullen ,
Koplinski also testified that he had previously been counsel on a special task force within the Department of Justice that specifically litigated FACE claims. (Tr., pp. 61-62.) He noted the difficulty in bringing civil suits under FACE contrasted with the effectiveness of summary criminal offenses, and explained that the City would likely face difficulty funding protracted civil litigation in federal court. (Id. at 61-62; see also Doc. 59-5, pp. 130-131.) Beyond the City's consideration of the difficulties in enforcing FACE, it does not appear that the City has authority to bring a civil action under that statute. FACE gives a right to sue to any "person" aggrieved by certain prohibited acts and a person "lawfully exercising or seeking to exercise the First Amendment right of religious freedom at a place of religious worship." 18 U.S.C. 248(c)(1)(A). FACE also empowers the United States Attorney General and State Attorneys General as parens patriae to bring similar enforcement actions. 18 U.S.C. 248(c)(1)(A). Thus, it appears that, even if the City had desired to increase enforcement under FACE, it was without authority to do so.
It does not appear from the record that any consideration was given to seeking injunctions against individual protesters. Defendants only argument why they failed to do so is that it would be financially unfeasible to do so. The City offers no evidence of the cost to seek such injunctions or any reasons why they are beyond the typical expenses of the City's Legal Bureau. Thus, the court finds that Defendants did not consider personal injunctions against protesters. Regarding a less-restrictive buffer zone ordinance, the City did specifically consider a buffer zone of 15 feet, but after consultation with the City solicitor and clinic personnel, rejected that distance as failing to adequately cover the specific areas around the clinic. (Doc. 59-5. p. 49.)
There also appears to be evidence that the City stopped enforcing the buffer zones in the wake of McCullen , although it is unclear who or if any individual informed police that McCullen rendered the buffer zone inoperable. (See Pls. Exs. 44, 47.) On August 22, 2015, Planned Parenthood employees experienced a large scale protest that included an estimated 100 anti-abortion protesters as well as approximately 15 counter-protesters. (Pls. Ex. 44.) The employees believed, and were apparently informed by police, that the buffer zones were unenforceable. (Id. ) After this large protest, Neil Grover, the City solicitor, issued a directive to the police bureau stating that the buffer zone was still enforceable. (Pls. Ex. 47.) There is no record of further large scale protests after that date. Plaintiffs argue that it is unreasonable to infer that the McCullen decision, which was issued on June 26, 2014, could have been causally related to the protest 14 months later. Although by no means definitive, it is conceivable that the two are directly linked. The McCullen decision did not wholesale invalidate all buffer zones around clinics, nor did it invalidate buffer zones of a particular size or scope. In fact, no decision has yet invalidated the Ordinance. It is not unreasonable to conclude that McCullen was misconstrued by officers who stopped enforcing the Ordinance over time. This process may have been gradual as there is no evidence of any formal directive or instruction to that effect. It may have similarly taken months for protesters to discover that the Ordinance was de facto unenforceable, and more months yet to organize a protest of *471100 individuals. That said, there is no evidence that McCullen directly led to Harrisburg police ceasing to enforce the Ordinance. There is, however, evidence that the Ordinance was not being enforced in August 2015 when the large-scale protest and counter-protest occurred. Thus, there is support for an inference that the Ordinance did have some ameliorative effect on the problems that it sought to resolve. (See Pls. Exs. 44, 50, ¶¶ 19-20.)
The record is clear that the City had undertaken some examination of alternatives to the Ordinance. The crucial question is whether it gave enough consideration to such alternatives. The council was aware that hiring additional police to patrol the clinic was financially unworkable and that enforcement of existing ordinances was an ill-fitting solution without constant or at least consistent police presence at the clinic. The City actually did consider both more and less physically restrictive buffer zones, and chose the distance that, in its judgment, was the fulcrum between protecting its citizens and protecting free speech rights. The City did not consider individual injunctions against offenders; although if police are unable to cite individuals for violations of certain laws, it is unclear what the legal basis for such an injunction would be. The City also did not formally petition the Commonwealth Attorney General or the United States Attorney General to enforce FACE at the clinics. Taking this evidence together, the court relies on the Third Circuit's instruction in Bruni that the City need not "demonstrate that it has used the least-restrictive alternative, nor ... that the City demonstrate it has tried or considered every less burdensome alternative to its Ordinance." Bruni ,
Although Plaintiffs have demonstrated that the Ordinance substantially burdens their First Amendment rights, Defendants have met their burden to show that the Ordinance was narrowly tailored to achieve a legitimate governmental interest because the City considered less-restrictive alternatives, ruled them out as less effective, and demonstrated that other less-restrictive methods had been tried and failed. Accordingly, the court holds that Plaintiffs have failed to show that they have a likelihood of success on the merits. Nonetheless, the court will now consider the remaining factors in the preliminary injunction analysis.
C. Irreparable Harm
The analysis for determining whether Plaintiffs would suffer irreparable harm is comparatively straightforward. "It is hornbook law that the 'irreparable harm requirement is met if a plaintiff demonstrates a significant risk that he or she will experience harm that cannot adequately be compensated after the fact by monetary damages ... this is not an easy burden.' " Fulton v. City of Philadelphia ,
D. Public Interest and Harm to Others
Having concluded that Plaintiffs have failed to satisfy both of the gateway factors necessary for a grant of preliminary injunctive relief, the court need not strictly analyze the remaining factors; however, the court shall briefly address the remaining factors. The remaining factors to be weighed in determining if a plaintiff is entitled to preliminary injunctive relief are (1) the possibility of harm to other interested persons from the grant or denial of the injunction, and (2) the public interest. Reilly II at 176 (citing Transam. Trailer Transport, Inc. ,
Under the present factual scenario, the final two factors are circumjacent. The harm to "others" is essentially the harm to the public at large asserted by the City. The City argues that the public good is furthered by preventing the exact harm that led to the enactment of the Ordinance. Noise and obstruction of the public sidewalk would be abated, and violent or aggressive protesters would be less likely to intimidate or harass patients or prevent patients from entering the clinic. This would also be the harm to others if the injunction were not granted. It goes without saying, however, that a deprivation of a constitutional right is contrary to the public interest and the harm to others (e.g. neighborhood residents, Planned Parenthood employees, and clinic patients), although substantial, does not outweigh such a denial. See K.A. ex rel. Ayers v. Pocono Mountain Sch. Dist. ,
Having held that Defendants have carried their burden to demonstrate the constitutionality of the Ordinance, and Plaintiffs have failed to demonstrate irreparable harm, the court need not proceed with the full balancing of the Transamerican Trailer factors. See Reilly II at 179-80 (holding that the "likelihood of success on the merits" and "irreparable harm" factors are gateway factors in the preliminary injunction analysis). However, if this court were to undertake such a balancing test, it is clear that the final two factors, harm to others and public interest, would also weigh in favor of denying injunctive relief.
*473Accordingly, all four factors, on balance, would favor Defendants.
E. Credibility of Plaintiffs as Witnesses
Defendants argue that the court should apply the doctrine of falsus in uno, falsus in omnibus to disregard Plaintiffs' testimony at the hearing. (Doc. 101 at 49) (citing Lambert v. Blackwell ,
III. Conclusion
The Court again emphasizes the paramount importance of First Amendment *474rights in the continued functioning of our democracy. However, the Supreme Court has, time and time again, recognized that limits to these rights exist. Here, the City has placed reasonable and constitutional limits on the free speech rights of protesters at certain locations within its municipal limits. The Court holds that the Ordinance is content neutral and, thus, subject to an intermediate scrutiny analysis. In determining whether to grant Plaintiffs request for a preliminary injunction, the court applied the factors as set forth by the Third Circuit in Reilly II . In doing so, the court concluded that: (1) Plaintiffs failed to demonstrate a reasonable likelihood of success on the merits because Defendants met their burden of demonstrating that the Ordinance was narrowly tailored to achieve a legitimate governmental interest; (2) Plaintiffs failed to demonstrate irreparable harm; and (3) even if Plaintiffs had done so, the final two factors in the preliminary injunction analysis weighed against granting injunctive relief. Accordingly, Plaintiffs' motion for preliminary injunctive relief is denied. An appropriate order will follow.
As noted by the Third Circuit, Rosalie Gross was a plaintiff in the original action before this court, Reilly v. City of Harrisburg ,
To the extent Plaintiffs suggest that the Third Circuit's holding in Bruni is dispositive, the court rejects such a supposition. The District Court in Bruni both denied the plaintiffs' motion for preliminary injunction and granted the defendants' motion to dismiss. The plaintiffs appealed only the order dismissing their complaint. Accordingly, the Bruni Court examined plaintiffs' complaint under the highly deferential standard applied in the motion to dismiss context. Bruni ,
A brief note on nomenclature: Plaintiffs consistently refer to themselves as "counsellors" throughout their filings. The distinction in this opinion is purposeful and relevant. As discussed at length, infra , the Ordinance does not, by its terms, prohibit many aspects of the "counselling" touted by Plaintiffs. The Ordinance's aim is to restrict aggressive acts of demonstration and protest around the clinic property. Thus, unless otherwise noted, the term "protesters" refers generally to those performing the acts prohibited by the Ordinance.
Plaintiffs do not appear to contest that the City has a significant governmental interest "in 'ensuring public safety and order, promoting the free flow of traffic on streets and sidewalks, protecting property rights, and protecting a woman's freedom to seek pregnancy-related services.' " McCullen v. Coakley ,
Plaintiffs note that the buffer zone that was recently upheld by the Western District in Bruni v. City of Pittsburgh ,
Although this court granted Plaintiffs' request to file a sur-reply to Defendants' post-hearing reply brief (Docs. 101, 107, 108), Plaintiffs do not contradict the City's calculation that the Massachusetts buffer zone covered an area of 3848.45 square feet total, 2481.63 square feet of public property, but the Ordinance restricts only 824.16 square feet total and 469.66 square feet of public property. (Doc 101, p. 45.)
Notably, counter-protests as described by Yost would clearly be prohibited by the terms of the Ordinance.
Plaintiffs filed a notice of objections to several exhibits and portions of transcripts introduced by Defendants at the preliminary injunction hearing. (Doc. 106.) Specifically, Plaintiffs objected to Exhibits 2, 3, 5, and 6 as irrelevant under Federal Rule of Evidence 401, or more prejudicial than probative under Rule 403. As explained herein, Exhibits 2, 3, 5, and 6 are relevant to show the City's prior knowledge of its financial situation for purposes of determining whether the City adequately considered less-restrictive alternatives to the Ordinance. Accordingly, Plaintiffs' objections are overruled with respect to Exhibits 2, 3, 5, and 6, and Plaintiffs' remaining objections are sustained.
Reference
- Full Case Name
- Colleen REILLY, Becky Biter, and Rosalie Gross v. CITY OF HARRISBURG, Harrisburg City Council, and Eric Papenfuse, in his official capacity as Mayor of Harrisburg
- Cited By
- 3 cases
- Status
- Published