JOHN McTERNAN v. CITY OF YORK, PENNSYLVANIA; MAYOR JOHN S. BRENNER, in his official capacity; POLICE COMMISSIONER MARK L. WHITMAN, in his official capacity; SERGEANT RICHARD BARTH, York Police Department, in his official and individual capacities
Nos. 07-4437 (Consolidated with Nos. 07-4438 and 07-4439)
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
April 27, 2009
PRECEDENTIAL. Argued October 23, 2008. Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil No. 06-cv-02132). District Judge: Honorable John E. Jones, III.
2009 Decisions
Opinions of the United States Court of Appeals for the Third Circuit
4-27-2009
McTernan v. York
Precedential or Non-Precedential: Precedential
Docket No. 07-4437
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Recommended Citation
“McTernan v. York” (2009). 2009 Decisions. Paper 1424. http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1424
(Filed: April 27, 2009)
Dennis E. Boyle, Esq. Randall L. Wenger, Esq. [ARGUED] Suite 200 4660 Trindle Road Camp Hill, PA 17011-0000 Counsel for Appellants John McTernan; John R. Holman; Edward D. Snell
Donald B. Hoyt, Esq. Blakey, Yost, Bupp & Rausch 17 East Market Street York, PA 17401
Frank J. Lavery, Jr., Esq. James D. Young, Esq. [ARGUED]
OPINION OF THE COURT
RENDELL, Circuit Judge.
Appellant John McTernan appeals from the District Court‘s grant of summary judgment against him and dismissal of his Monell claims for municipal liability in this action pursuant to
I.
McTernan is a pro-life advocate who regularly speaks to pregnant women as they enter Planned Parenthood of Central Pennsylvania (“Planned Parenthood“), a reproductive health clinic (hereinafter “Clinic“) in York, Pennsylvania. His complaint challenges a restriction imposed by police, specifically Sergeant Barth, on his ability to walk in an alley adjacent to the Clinic to speak to clients. Sergeant Barth, a
A.
We are presented with two other appeals by protesters with complaints similar to McTernan‘s (Holman v. City of York, No. 07-4438; and Snell v. City of York, No. 07-4439). Each of the three appellants (collectively “appellants” or “plaintiffs“) sued individually complaining of restrictions on his First Amendment rights of free speech, assembly, and religious expression. Additionally, Snell and Holman have complained that their arrests for activity outside the Clinic violated their Fourth Amendment rights. While certain facts as stated in the three appeals are similar, the claims of each were separately asserted in, and decided by, the District Court. We will therefore treat each case separately, while noting certain similarities.
McTernan‘s case was filed first, and we will deal herein with the common issues in depth, while the other opinions may incorporate certain principles relied upon herein by reference.
All three complaints contain certain common allegations:
Plaintiffs attempt to dissuade women entering the Clinic from undergoing an abortion; - Deeply rooted Christian beliefs animate plaintiffs’ activities at the Clinic;
- Encounters between plaintiffs, other protesters, and clients are generally peaceful, and no violent altercations have occurred;
- On multiple occasions, officers assigned overtime detail at the Clinic have restricted plaintiffs’ access to Rose Alley, a public street adjacent to the Clinic; and
- Access restrictions were adopted at Planned Parenthood‘s behest, and under “color and pretense” of the customs and policies of the City of York.
There was extensive discovery, and the facts as we recount them here are based on deposition testimony. Except where noted to the contrary, the facts are not disputed. These cases are alike in that they paint a picture, aided in part by DVDs submitted by each of the three plaintiffs, very different from most other abortion clinic protest cases. Here, the police focus was not on the disruption caused by protesters, as such; rather, the justification for the restrictions on plaintiffs’ activities was grounded in a concern for traffic safety in the alley abutting the Clinic. Police worried that vehicles traveling through the alley would collide with advocates congregating there. The defendants have admitted allegations in plaintiffs’ complaints as to the absence of physical confrontations of the
B.
As the physical layout and setting of the Clinic are crucial to our analysis, we describe both in detail. The Clinic fronts South Beaver Street in York, Pennsylvania. Two roads run perpendicular to South Beaver Street on either side of the Clinic — Hancock Street and Rose Alley. M.A. 180 (map of Clinic environs). Rose Alley is a public street maintained by the City of York. M.A. 166. It is approximately 20 feet wide and is lightly traveled. M.A. 173, 219. A publishing business is located at the far end of the alley, and its employees, and trucks making deliveries, use the alley to access the company‘s parking lot. M.A. 173. There is no posted speed limit in Rose Alley, nor are there signs restricting the direction of travel or the size of vehicles using the alley. M.A. 133, 245-46. The Clinic owns or leases a front and a rear parking lot, which are used by Clinic employees and clients. M.A. 132, 173, 180. The front lot, which faces South Beaver Street, is adjacent to Rose Alley. M.A. 132,
Protesters may display signs, distribute literature, and engage patrons on the public sidewalks abutting the front entrance of the Clinic and running between the front parking lot and South Beaver Street. M.A. 132, 183; Holman Appendix (“H.A.“) 295; Snell Appendix (“S.A.“) 165.
Typically, Planned Parenthood personnel, dressed in white smocks, meet women entering the front lot and escort them across Rose Alley and over the public sidewalk to Planned Parenthood‘s front entrance. M.A. 219. Other times, clients are dropped off at the rear entrance of the Clinic. Standing at the far end of the alley, McTernan attempts to converse with these women as they enter the Clinic from the rear. M.A. 221.
C.
On June 29, 2005, McTernan and another protester were standing in Rose Alley when a vehicle swerved sharply towards them. Believing that the driver had acted deliberately to intimidate him, McTernan asked Sergeant Barth to charge the driver. Sergeant Barth did not do so. McTernan maintains that Sergeant Barth minimized the significance of the incident. M.A. 175, 274.
Sergeant Barth also told McTernan that he could walk through the alley but had to do so “legally,” in the “correct way,” and could not “English-walk.” M.A. 220, 224. McTernan requested that Sergeant Barth define these terms but he declined to do so. M.A. 220, 224. McTernan then walked up and down the alley. After doing so, he inquired whether his manner of walking was legal. M.A. 220, 24. Sergeant Barth informed McTernan that it was not and threatened to arrest him if he did so again. M.A. 220, 224. Accordingly, McTernan did not enter Rose Alley again that day, instead using the public sidewalk in front of the Clinic to converse with clients. M.A. 174, 221. After September 28, 2005, McTernan continued his advocacy outside the Clinic but avoided Rose Alley, without further incident. M.A. 174, 221.
D.
Defendants Brenner, Whitman, the City of York, and Sergeant Barth jointly filed a motion to dismiss under
McTernan admits that the Planned Parenthood facility is bordered on two sides by public sidewalks in which he is free to engage in his religious conduct. (SUF, SIO ¶ 18; McTernan Dep. at 15-18.) McTernan admits that Sergeant Barth did not prohibit or prevent him or any member of his group from carrying signs, distributing literature, expressing their views, or otherwise engaging in religiously motivated conduct on these sidewalks or in any location other than the alley. (SUF, SIO ¶¶ 13-16; McTernan Dep. at 35-37.) McTernan
retained substantial opportunity to engage in his religiously motivated conduct.
M.A. 21. Accordingly, the District Court found no violation of the Free Exercise Clause.
Addressing the free speech and assembly claims, the District Court applied the “forum” analysis adopted by the Supreme Court. Under this approach, the type of forum in which the speech occurs dictates the restrictions that the government may permissibly impose. Int‘l Soc‘y for Krishna Consciousness, Inc. v. N.J. Sports & Exposition Auth., 691 F.2d 155, 159 (3d Cir. 1982) (“The extent to which the government may limit activity protected by the First Amendment depends largely on the locale where the speech or conduct takes place.“).
The Supreme Court has identified three types of fora: the traditional public forum, the designated public forum, and the nonpublic forum. Ark. Educ. Television Comm‘n v. Forbes, 523 U.S. 666, 677 (1998). Traditional public fora include public parks, streets, and other locales historically used for purposes of assembly, communicating with fellow citizens, and discussing public questions. Boos v. Barry, 486 U.S. 312, 318 (1988). The District Court concluded, and the parties do not contest on appeal, that Rose Alley is a public street maintained by the City of York and thus a traditional public forum.
Speech in a traditional public forum is afforded maximum constitutional protection. Accordingly, government regulation of speech in a traditional public forum is subject to strict scrutiny and will only be upheld if narrowly tailored to serve a
The District Court concluded that the restriction placed on McTernan‘s speech was content-neutral, was narrowly tailored to serve a compelling government interest, and left open ample alternatives for McTernan to communicate with Clinic clients. The District Court discounted McTernan‘s claim that the interest in safety was mere pretext, reasoning that the near-miss involving McTernan, as well as a second, unrelated traffic incident in the alley, justified the restriction.
On appeal, McTernan contends that he was targeted solely because of his pro-life views, that the threat of arrest burdened his religiously motivated expression and speech, and that the District Court overstated the safety concerns presented by his activities in the alley.4
The intersection of the various First Amendment rights at play here is reminiscent of a law school exam. We will attempt to parse the relevant issues in our analysis to provide guidance to the District Court, as we conclude that there are genuine issues of material fact that require us to remand.
A.
Our review of the District Court‘s grant of summary judgment is plenary. AT&T v. JMC Telecom, LLC, 470 F.3d 525, 530 (3d Cir. 2006). Summary judgment is only appropriate if there are no genuine issues of material fact, and the movant is entitled to judgment as a matter of law. Id. In reviewing the District Court‘s grant of summary judgment, we review the facts in the light most favorable to the nonmoving party. Id.
We note at the outset that whether a restriction on the time, place, or manner of speech is reasonable presents a question of law. However, the reasonableness of a restriction involves an underlying factual inquiry. Under Ward, the challenged restriction must be (1) content-neutral, (2) narrowly tailored to serve an important governmental interest, and (3) leave open ample alternatives for communication of information. These elements involve subsidiary fact questions that must be submitted to a jury, except where the evidence applicable to a particular element entitles a party to judgment as a matter of law. See Pouillon v. City of Owosso, 206 F.3d 711, 717-18 (6th Cir. 2000); see also Ovadal v. City of Madison, 416 F.3d 531, 537-38 (7th Cir. 2005); cf. Colacurcio v. City of Kent,
We review the District Court‘s grant of Defendants’ motion to dismiss de novo. Omnipoint Commc‘ns Enters., L.P. v. Newtown Twp., 219 F.3d 240, 242 (3d Cir. 2000). We must “accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)).
In Bell Atlantic Corp. v. Twombly, the Supreme Court confirmed that
A complaint may not be dismissed merely because it appears unlikely that the plaintiff can prove those facts or will ultimately prevail on the merits. Id. (quoting Twombly, 127 S.Ct. at 1964-65). The Supreme Court‘s Twombly formulation of the pleading standard “‘does not impose a probability requirement at the pleading stage,‘” but instead “‘simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence’ of the necessary element.” Id. at 234 (quoting Twombly, 127 S.Ct. at 1965).
B.
McTernan contends that Sergeant Barth‘s directive not to stand in Rose Alley violated his First Amendment right to the free exercise of religion. The Free Exercise Clause of the First Amendment, applicable to state action through the Fourteenth Amendment, Cantwell v. Connecticut, 310 U.S. 296, 303 (1940), provides that “Congress shall make no law . . . prohibiting the free exercise [of religion].” The Free Exercise Clause not only forbids regulation of religious beliefs as such but also protects religiously motivated expression. Employment Div., Dep‘t of Human Resources of Or. v. Smith, 494 U.S. 872, 877 (1989). Here, McTernan‘s activities at the Clinic are indisputably animated by sincerely held Christian beliefs.
The Free Exercise Clause, however, does not afford absolute protection to religiously motivated expression. Where
McTernan does not cite, and the Court is not aware of, any case in which strict scrutiny has been applied to a “neutral” and “generally applicable” regulation restricting the time, place, or manner of religiously-motivated speech. See Berry v. Dep‘t of Social Servs., 447 F.3d 642, 649 n. 5 (9th Cir. 2006); cf. Jacobs, 526 F.3d at 440 n.45 (“Significantly, no court has ever allowed a plaintiff to bootstrap a free exercise claim in this manner. . . . We decline to be the first.“) (internal citation omitted). Our refusal to apply a hybrid rights theory here is reinforced by the narrow reach the Supreme Court has given to
Here, McTernan‘s ability to convey his religiously motivated message at the Clinic was burdened. Sergeant Barth advised McTernan not to stand, linger, or walk aimlessly in the alley, and threatened to arrest him after he walked through the alley. As a result, McTernan could not use the alley to communicate with clients deposited at the rear entrance of the Clinic.
We first must ask, as the District Court did, whether the prohibition was “neutral” and “generally applicable.” Finding no evidence that Sergeant Barth was motivated by hostility to McTernan‘s Christian beliefs, the District Court concluded that the restriction complied with the principle of “neutrality.” The District Court also concluded that the restriction, conveyed to protesters and Planned Parenthood personnel, was “generally applicable,” and that Sergeant Barth enforced the restriction evenhandedly. Although Sergeant Barth threatened McTernan alone with arrest, the District Court found that only McTernan violated the restriction. As evidence of Planned Parenthood personnel‘s compliance with the restriction, the District Court cited Sergeant Barth‘s observation that “for the most part,
In determining that the challenged restriction was “generally applicable,” the District Court relied, overwhelmingly, on the articulation of the restriction to members of both camps. Because Sergeant Barth instructed protesters and Planned Parenthood personnel not to stand in the alley, the District Court concluded that the restriction was “generally applicable.” Facial applicability, however, is not conclusive of whether a restriction is “generally applicable.” Tenafly, 309 F.3d at 167. A regulation facially applicable to all persons is not “generally applicable” if it is enforced against a category of religiously motivated conduct, but not against a substantial category of conduct “that is not religiously motivated and that undermines the purposes of the law to at least the same degree as the covered conduct that is religiously motivated.” Blackhawk, 381 F.3d at 209; Hialeah, 508 U.S. at 546; cf. Fowler v. Rhode Island, 345 U.S. 67, 69 (1953) (holding that city violated Free Exercise Clause by enforcing ordinance banning meetings in park against Jehovah‘s Witnesses but exempting other religious groups).
Here, Sergeant Barth excluded McTernan from the alley; however, the record reflects that Planned Parenthood personnel were permitted to walk freely through it. Although Sergeant Barth initially instructed protesters and Planned Parenthood personnel that they “were allowed to walk in the alley,” and that “travel through the alley was acceptable,” he later admonished McTernan that he had to walk through the alley “correctly” and in the “right way” and could not “walk aimlessly” or “English-walk” there. McTernan requested that Sergeant Barth further
Planned Parenthood personnel and Clinic clients, by contrast, walked freely across the alley, as Sergeant Barth acknowledged in his deposition. M.A. 166 (noting that Planned Parenthood volunteers “were allowed to walk in the alley.“). There was also evidence in the record of the habitual passage through the alley of clients and escorts. M.A. 219. Sergeant Barth does not contend, however, that he threatened to arrest any person other than McTernan. Nor does the record suggest that Sergeant Barth actually limited the manner in which Planned Parenthood personnel could walk in or through the alley.
In short, while there is not a great deal of evidence in the record as to what was transpiring elsewhere in the alley at the time, it is clear that there was repeated “walking” in the alley by Planned Parenthood escorts and clients. Why McTernan‘s passage through the alley did not constitute the “correct” or the “right way” of traveling “in” or “through” the alley, while Planned Parenthood volunteers’ use of the alley was acceptable, is not apparent from the record. That question presents a fact issue. A reasonable jury could conclude that McTernan and Planned Parenthood personnel‘s respective use of the alley created equivalent safety hazards, justifying enforcement of the restriction against both groups. Indeed, traffic safety and traffic flow were potentially impaired by the progress of patrons, flanked by escorts, through the alley. Accordingly, a reasonable jury could conclude that the restriction “fails the general applicability requirement . . . [because] it burdens a category of
If not generally applied, a restriction burdening religiously motivated expression must satisfy strict scrutiny – that is, it must serve a compelling government interest and must be narrowly tailored to serve that interest. Hialeah, 508 U.S. at 546; Tenafly, 309 F.3d at 172. “Compelling” interests, the Supreme Court has explained, identify “interests of the highest order.” Hialeah, 508 U.S. at 546 (quoting McDaniel v. Paty, 435 U.S. 618, 638 (1978)). Relying on precedent and the specific facts here, the
The governmental interests asserted to justify the restriction here are narrower than other abortion cases, where protesters impeded women‘s access to reproductive health services by physically blockading clinic driveways and entrances, and violated the property rights of clinic owners, by trespassing on clinic parking lots and entryways.7 There, law enforcement officers were faced with potentially violent altercations, with protesters behaving aggressively toward clinic
On the facts before us, we cannot conclude that the single interest asserted by Sergeant Barth is “compelling” as a matter of law. We accept, as a general proposition, that police have an interest in safety and avoiding collisions between cars and pedestrians in the alley. It surely is an important interest, in the abstract, but query whether the interest was “compelling” in this fact pattern. The DVDs supplied by the plaintiffs depict a peaceful setting, with very few people outside the Clinic. It is undisputed that the alley is lightly traveled. We also find unpersuasive the incident identified by Sergeant Barth, and credited by the District Court, to justify the restriction. When Sergeant Barth first instructed advocates to stay out of the alley, he cited an incident in which McTernan was nearly struck by a
A second traffic incident in Rose Alley cited by the District Court also does not demonstrate the existence of a “compelling” safety hazard from protesters’ use of the alley. In December 2005, a truck nearly struck an anti-abortion advocate while he was conversing with a police officer in the alley, near the intersection with South Beaver Street. Significantly, the restriction was not imposed until approximately ten months after this incident. Hence, we reject the District Court‘s conclusion that the December 2005 incident demonstrates a “compelling” governmental interest in traffic safety in the alley as a matter of law. See New York ex rel. Spitzer, 273 F.3d at 208 (“While narrow regulations may sometimes be necessary, they must be supported by more than a few stories of near-miss traffic accidents . . . .“). Rather, this aspect of the case presents a fact issue for the jury.
Even if the government‘s interest is found to be compelling, that interest still must be “narrowly tailored.” Here, McTernan urges that the least restrictive means of achieving safety would have been for Sergeant Barth to direct traffic:
Even under a heightened scrutiny analysis, Sergeant Barth‘s actions fail since any restriction greater than directing traffic would be overbroad and burden too much constitutionally protected
activities in an area that is often the most effective place for speech. The trial court, therefore, erred in granting Sergeant Barth‘s Motion for Summary Judgment.
Appellant‘s Br. at 28. McTernan‘s argument is at least facially plausible. Could Sergeant Barth not have maximized safety by directing traffic at the intersection of South Beaver Street and Rose Alley, slowing or stopping the occasional car or truck entering the alley, to permit McTernan to walk in the alley, just as others crossed or passed through the alley? The District Court concluded, without analysis, that the restriction was “narrowly tailored.” However, given that the restriction prevented McTernan from being in the alley at all and denied him access to those patrons entering the Clinic from the rear, we are not so sure. Significant fact questions underlie this issue, too, and a jury should decide whether this option was the least restrictive one available to Sergeant Barth.
Accordingly, McTernan‘s claim under the Free Exercise Clause of the First Amendment should have been submitted to a jury, and it was error to grant summary judgment in favor of Sergeant Barth on McTernan‘s Free Exercise claim.
B.
McTernan maintains that his exclusion from Rose Alley violated his free speech rights under the First Amendment. “The Supreme Court has adopted a forum analysis as a means of determining when the Government‘s interest in limiting the use of its property to its intended purpose outweighs the interest of
The Supreme Court has identified three types of fora: the traditional public forum, the designated public forum, and the nonpublic forum. Ark. Educ. Television Comm‘n, 523 U.S. at 677. A traditional public forum is defined by the objective characteristics of the property, such as whether the location has long been open to expressive activity. Id. It is undisputed that Rose Alley, a thoroughfare maintained by the City of York, is a public forum.
The government may impose reasonable restrictions on the time, place, or manner of speech in a public forum, provided that restrictions “‘are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.‘” Ward, 491 U.S. at 791 (quoting Clark, 468 U.S. at 293). “[W]hen the government restricts speech, the government bears the burden of proving the constitutionality of its actions.” See U.S. v. Playboy Entm‘t Group, Inc., 529 U.S. 803, 816 (2000) (citing Greater New Orleans Broad. Ass‘n, Inc. v. United States, 527 U.S. 173, 183 (1999)).
1.
The first prong of Ward focuses on whether the restriction on speech is content-neutral. The central inquiry is whether “the government has adopted a regulation of speech because of disagreement with the message it conveys.” Ward, 491 U.S. at 791 (citing Clark, 468 U.S. at 295). Finding no evidence of police hostility to McTernan‘s pro-life views, the District Court concluded that legitimate safety concerns, instead, prompted the restriction. McTernan demurs for two reasons, neither of which is persuasive.
McTernan asks the Court to infer police hostility to his pro-life message from (1) Sergeant Barth‘s enforcement of the restriction against him, and (2) Planned Parenthood‘s contract with the York police department, which purportedly authorized Planned Parenthood to direct the conduct of officers assigned to the Clinic.
McTernan adduced no evidence of police hostility to his pro-life message.10 Although the record shows that Sergeant
Second, McTernan cites the contract between Planned Parenthood and the City of York as evidence that Planned Parenthood directed Sergeant Barth to exclude protesters from Rose Alley, thus proving a pro-choice bias. McTernan‘s allegation is conjecture: there is no evidence that the Clinic conceived of the restriction, or that the contract empowered Planned Parenthood to direct Sergeant Barth‘s activities at the Clinic. To the contrary, Barth was obligated to enforce the laws of the City of York and to maintain order. M.A. 164-65, 183. McTernan‘s second argument thus fails.
Hence, the District Court correctly determined that the challenged restriction was content-neutral.
2.
Under Ward, a content-neutral restriction on the time, place, or manner of speech ordinarily receives intermediate scrutiny and thus will be upheld, provided the restriction serves a significant government interest and is narrowly tailored to serve that interest. Ward, 491 U.S. at 791.
(i)
In our analysis of McTernan‘s Free Exercise claim, we
In Madsen, the Supreme Court determined that the government had a “strong interest in the public safety and order, [and] in promoting the free flow of traffic on public streets and sidewalks . . . .” 512 U.S. at 767. There, protesters’ presence in a street used to access the clinic – Dixie Way – created a clear traffic hazard. Id. at 769. Protesters would congregate in Dixie Way, risking collisions with approaching cars. Id. To “ensur[e] that petitioners do not block traffic on Dixie Way” and to reduce the risk of an accident, the Supreme Court upheld a fixed buffer zone around clinic entrances and driveways. Id.
In Schenck, the Supreme Court recognized, similarly, a significant governmental interest in vehicular and pedestrian safety. 519 U.S. at 375-76. There, the Court determined that the presence of protesters in clinic driveways and driveway entrances created a “dangerous situation” because of the “interaction between cars and protesters.” Id. Citing the significant governmental interest in traffic safety, the Court
Here, as in Schenck and Madsen, protesters and Planned Parenthood personnel and clients would walk in Rose Alley. The presence of people in a public thoroughfare undoubtedly constituted a distraction for drivers. The physical dimensions of the alley, which was less than 20 feet wide, as well as the presence of heavy trucks, exacerbated this hazard. We find, therefore, that the governmental interest in the movement of pedestrians in Rose Alley, including protesters, while not “compelling,” was real and could be termed, “significant.”
(ii)
To survive intermediate scrutiny, a content-neutral restriction must also be narrowly tailored to achieve the interest asserted. Ward, 491 U.S. at 791. The Supreme Court, however, has mandated a “more searching” review where a restriction takes the form of an injunction, rather than a legislative enactment. Madsen, 512 U.S. at 768. We must decide whether heightened scrutiny also applies here, because a police directive, such as the one issued by Sergeant Barth, is similar to an injunction. The District Court did not consider whether the form
We rely on the principles enunciated in Madsen to determine whether heightened scrutiny is appropriate here. Id. There, the Court considered whether intermediate scrutiny governed the constitutionality of a court injunction that, among other things, excluded abortion protesters within a specified radius of a reproductive health clinic. Id. at 765. Finding intermediate scrutiny inadequate, the Court observed that injunctions present two risks, warranting a “more stringent application of general First Amendment principles.” Id. First, injunctions do not emanate from deliberative, democratic decisionmaking processes. Id. “Ordinances represent a legislative choice regarding the promotion of particular societal interests. Injunctions, by contrast, are remedies imposed for violations (or threatened violations) of a legislative or judicial decree.” Id. (citing United States v. W.T. Grant Co., 345 U.S. 629, 632-633 (1953)). Second, injunctions, which target discrete groups rather than society generally, may not attract public scrutiny, increasing the likelihood that unreasonable injunctions will escape public condemnation. Id. at 764. As the Court observed in Madsen, “[T]here is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally.” Id. (quoting Ry. Express Agency, Inc. v. New York, 336 U.S. 106, 112-113 (1949)).
We conclude that a police directive, issued by officers in the field, poses risks similar to those presented by an injunction, warranting heightened scrutiny. First, a police directive, like an
Police directives, in fact, present potentially greater opportunities for arbitrary enforcement than injunctions. Whereas injunctions are written, police directives are oral. Oral directives often lack the precision and specificity required of federal injunctions. Moreover, oral police directives are less amenable to judicial, executive, and public oversight.
The concerns identified above – real rather than hypothetical – are illustrated here. Sergeant Barth failed to define permissible and proscribed uses of the alley in clear terms. The restrictions imposed on the protesters varied greatly. Each officer assigned to the Clinic restricted access to the alley
The application of heightened scrutiny modifies a single, but significant, aspect of the Ward analysis – the “tailoring” requirement. Under intermediate scrutiny, a restriction is narrowly tailored to achieve an important governmental interest if that interest would be less effectively achieved without the regulation. Ward, 491 U.S. at 799. However, a regulation need not represent the least restrictive means of achieving the articulated aim. Id. If a restriction represents the most effective means of accomplishing the stated purpose, it will survive intermediate scrutiny, even if other alternatives would place a lesser burden on individual speech. Id.
Heightened scrutiny, by contrast, imposes a more stringent “narrowing” requirement. Proof that a restriction represents the most effective means of achieving the proffered government interest is insufficient. Madsen, 512 U.S. at 765. Instead, a restriction will survive heightened scrutiny only if it “burden[s] no more speech than necessary” to serve that interest. Id.
Here, we cannot conclude, as a matter of law, that the challenged restriction “burden[s] no more speech than
The significant fact issues present here also preclude summary judgment on the “tailoring” requirement. A restriction cannot be “narrowly tailored” in the abstract; it must be tailored to the particular government interest asserted. Only when the contours of that interest are clear may we decide whether the means selected to accomplish it have been “narrowly tailored.” Here, Sergeant Barth cited traffic safety to justify restricting access to Rose Alley. We previously identified traffic safety as a “significant” governmental interest, but query whether the safety issues are sufficiently defined, on the record before us, to sustain summary judgment that the restriction was “narrowly tailored” to that interest.
We conclude that significant fact questions persist, precluding summary judgment on this issue. There is a paucity of evidence as to the safety hazards presented by protesters’ activities in the alley. Largely unknown is how drivers, protesters, and Clinic personnel interacted in the alley. The
Accordingly, summary judgment was improper, and the jury should decide this issue on remand.
3.
The final Ward requirement is that the restriction leave ample opportunities for communication of information. The District Court concluded that McTernan, who could espouse his views from the public sidewalks surrounding the Clinic, possessed adequate alternatives to convey his pro-life message. M.A. 29. McTernan‘s contention on appeal is a narrow one. He focuses on the alternatives available to communicate with clients using the rear entrance of the Clinic. McTernan contends that access to Rose Alley is critical to engage these clients. McTernan‘s assertion is factually correct: sustained conversation with clients using the rear entrance is only possible in the alley. However, the First Amendment does not guarantee a speaker an absolute right to actual conversation with his audience in every circumstance. To the contrary, the Supreme Court has repeatedly upheld buffer zones around reproductive
In Madsen, the Supreme Court considered the constitutionality of a 36-foot buffer zone around the entrances and driveways of an abortion clinic. 512 U.S. at 757. Due to its size, the buffer zone limited opportunities for face-to-face dialogue between protesters and clients. Id. Although the buffer zone impeded conversation with clients, it was “narrow enough to place petitioners [protesters] at a distance of no greater than 10 to 12 feet from cars approaching and leaving the clinic.” Id. at 770. Hence, protesters could still voice their message and display placards as drivers and passengers approached the clinic. Because protesters “could still be seen and heard from the clinic parking lots,” the Court concluded that protesters possessed adequate alternatives to communicate their message. Id.
We find the alternative communication channels approved in Madsen instructive here. As in Madsen, the restriction here limits opportunities for conversation with clients using the rear entrance of the Clinic. Nonetheless, McTernan possessed options to make himself “seen and heard.” Id. Like the protesters in Madsen, McTernan could verbalize his message or direct visual placards at drivers entering Rose Alley. Standing on the public sidewalk fronting the clinic, McTernan could position himself within a few feet of cars turning into Rose
III.
McTernan challenges the District Court‘s dismissal of his claim against the City of York based on Sergeant Barth‘s alleged violation of his First Amendment rights. Our jurisprudence is clear that “[w]hen a suit against a municipality is based on
In Andrews v. City of Philadelphia, we expanded on these
A government policy or custom can be established in two ways. Policy is made when a ‘decisionmaker possess[ing] final authority to establish a municipal policy with respect to the action’ issues an official proclamation, policy, or edict. A course of conduct is considered to be a ‘custom’ when, though not authorized by law, ‘such practices of state officials [are] so permanently and well-settled’ as to virtually constitute law.
895 F.2d 1469, 1480 (3d Cir. 1990) (quoted in Beck, 89 F.3d at 971) (citations omitted). Custom requires proof of knowledge and acquiescence by the decisionmaker. Watson v. Abington Twp., 478 F.3d 144, 154 (3d Cir. 2007); Beck, 89 F.3d at 971.
As noted above,
Here, McTernan‘s Monell claim rests on four allegations in the complaint:
- “16. Despite the lack of violence, the City of York, its Mayor and Police Chief, have routinely dispatched police officers to Planned Parenthood at the behest of Planned
Parenthood, to serve as private security guards for Planned Parenthood. It is believed, and therefore averred, that Planned Parenthood pays for these police officers and directs their actions.” M.A. at 46. - “33. Continuing through the present, Mr. McTernan and others have been periodically threatened with arrest and have on multiple occasions been told to leave the alley.” M.A. at 50.
- “34. Mr. McTernan is chilled, frustrated and deterred in the exercise of his First Amendment activities due to the City‘s policy of ignoring First Amendment right[s.]” M.A. at 50.
- “35. All of the acts of the Defendants and their agents, as alleged herein, were conducted under color and pretense of the statutes, ordinances, regulations, customs, or usages of the City of York or the Commonwealth of Pennsylvania.” M.A. at 50.
The District Court concluded that McTernan failed to satisfy the “rigorous standards of culpability and causation” required for municipal liability. M.A. 8 (quoting Bd. of Comm‘rs of Bryan County v. Brown, 520 U.S. 397, 405 (1997)). We agree.
As an initial matter, McTernan fails to specify the relevant “custom” or “policy” here. To satisfy the pleading standard, McTernan must identify a custom or policy, and specify what exactly that custom or policy was. Phillips, 515 F.3d. at 232
Equally fatal, the four allegations in the complaint relevant to McTernan‘s Monell claim fail to allege conduct by a municipal decisionmaker. Although McTernan maintains that York officers “periodically” instructed protesters to exit the alley, he does not plead knowledge of such directives by a municipal decisionmaker, such as the Mayor or Police Chief. There is no allegation that either the Mayor or the Police Chief were aware of, let alone directed, the restrictions or participated in formulating traffic abatement strategies at the Clinic. Nor do the allegations support, indirectly, such an inference. The complaint alleges nothing more than directives issued ad hoc by individual officers, without reference to any formal administrative or policy channels. Hence, the allegations are deficient.
McTernan‘s complaint simply paraphrases
IV.
In light of the foregoing, we will AFFIRM the Order of the District Court as to its dismissal of appellant‘s municipal liability claim and his official capacity claims against Sergeant Barth, Mayor Brenner, and Police Commissioner Whitman. Further, we will VACATE the Order of the District Court as to the other counts of appellant‘s complaint and REMAND to the District Court for further proceedings in accordance with this Opinion.