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ARMES v. CITY OF PHILADELPHIA

February 13, 1989

STEPHANIE MORELLO ARMES, MICHAEL McMONAGLE and JOSEPH WALL, Plaintiffs,
v.
CITY OF PHILADELPHIA, Defendant



The opinion of the court was delivered by: KATZ

 MARVIN KATZ, UNITED STATES DISTRICT JUDGE

 This case involves a challenge by anti-abortion protestors to the City of Philadelphia's enforcement of the Pennsylvania defiant trespass statute. Plaintiffs ask this Court for money damages, a declaratory judgment that their arrests were unconstitutional and an injunction preventing their arrest for similar conduct in the future. Because I find that the plaintiffs' right to express their deeply felt views stops at the private property line of the abortion clinic, I will deny plaintiffs' requests. *fn1"

 The stipulated facts are as follows:

 1. The Northeast Women's Clinic (hereinafter "NEWC") is a private corporation that operates a clinic which conducts abortions and other pregnancy related services.

 2. In 1976, the NEWC leased office space on the second floor of a multi-tenanted office building situate at 9600 Roosevelt Boulevard, Philadelphia, PA.

 3. The office building was privately owned by Gemini Corp. and managed for it by J.T. Jackson Realty Company of Philadelphia.

 4. From the time of its opening in 1976 to the date of plaintiffs' arrests on October 5, 1985, the NEWC has been the focus of demonstrations and protest activities involving the abortion issue.

 5. Abortions were scheduled on Saturdays among other days of the week.

 6. On nearly every Saturday over these years, persons would be present to express their opposition to abortions.

 7. The physical premises of 9600 Roosevelt Boulevard is further characterized by a parking lot adjacent to the northeast side of the building and two sidewalks, one leading from the parking lot to the front door of the building, which runs along the front of the building, and the other the public sidewalk, abutting 9600 Roosevelt Boulevard.

 8. The two sidewalks parallel one another and are separated by a lawn area of more than 20 feet in width. This grass lawn was also privately owned by the Gemini Corporation.

 9. The Saturday protest activity of October 5, 1985 did not involve any sit-in type demonstration within the building or any blocking the front door thereof. Rather it was essentially limited to the appearance of 20-30 people who, except as described below, would stand on the public sidewalk, some of whom held signs. They would, on the public sidewalk, kneel, pray or chant, as well.

 10. Generally, the same activity was true for other Saturdays as well.

 11. On occasion, during these protests, the protest activity became unruly, involving the use of bullhorns, and shouting vivid descriptions such as "abortion is murder." The police were present during protests to preserve peace and order.

 12. In addition, on most protest days, including October 5, 1985, as the business patrons of the clinic would arrive in the parking lot, one person or another involved in the protest group would leave the public sidewalk and walk onto the parking lot or up to the inner sidewalk in an attempt to voice their opinion about abortion -- and possible alternatives -- and to distribute leaflets. Such "counseling" activity was often done on a one-on-one basis and in a conversational tone of voice, but did sometimes become rushed and confrontational.

 13. Because of the activity of the protestors, including plaintiffs and others, the NEWC applied to the Court of Common Pleas of Philadelphia County for injunctions, which were duly granted on December 23, 1977 and on August 31, 1983 and which are attached as Exhibits to the Stipulation.

 14. From time to time the NEWC would contact the Sheriff of Philadelphia County in order to enforce the injunctions aforementioned, as was the Sheriff's responsibility.

 15. The arrests of plaintiffs on October 5, 1985, marked the first arrests of protestors for activity outside the building at this location.

 16. Because of the conflict between opposing sides at this site, from 1977 until October, 1985, the Police Department of the City of Philadelphia routinely maintained and monitored demonstrations at this side, through its civil affairs unit.

 17. Prior to and including October 5, 1985, the police presence was designed to preserve peace, order, property and physical safety at the location. The police did so primarily by ensuring that protestors remained orderly and by asking protestors to move off the parking lot, grass lawn and inner sidewalk when protestors moved from the public sidewalk thereto. Some protestors did, routinely, move from the public sidewalk to the lawn, inner sidewalk, and parking lot in an effort to convey their messages.

 18. Ardis Ryder was the administrative director of the NEWC in 1985 and for sometime prior thereto.

 19. Ardis Ryder spoke to officers of the City of Philadelphia regularly concerning their handling of the persons demonstrating outside the building. Mainly she complained that the police were not aggressive enough in keeping the demonstrators off the private property.

 20. In the Summer of 1985, she spoke to Captain Shanahan and officers, as did counsel to the NEWC.

 21. Ardis Ryder mentioned that she was weary of calling the Sheriff to be present to enforce any injunction violations. He also charged the clinic for his department's services.

 22. During these conversations, the City learned that "no trespassing" signs would be erected on the building at 9600 Roosevelt Boulevard, and that they would go up prior to Saturday, October 5, 1985. The NEWC implored Captain Shanahan and others to arrest any person who appeared to be passing out leaflets or talking to clinic patients within the boundary lines of the private property.

 23. In August of 1985, the NEWC filed suit before this court (NEWC v. McMonagle, et al., C.A. No. 85-0845) against one or more of the plaintiffs charging them with RICO violations for certain of their activities; among which were complaints that the protestors had entered the clinic building itself in an effort to disrupt abortion activity, during which invasions medical equipment was destroyed. The second and most recent such entry occurred August 10, 1985, and resulted in 12 arrests.

 24. Prior to October 5, 1985, two signs, each measuring approximately 2 feet by 2 feet, were erected on the clinic building. The signs stated:

 "Private Property"

 "No trespassing on parking lot, building or sidewalk area against building. Only tenants and their invitees are permitted on the ...


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