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ACT-UP v. WALP
February 6, 1991
ACT-UP, ON BEHALF OF ITS MEMBERS, PLAINTIFFS,
v.
COMMISSIONER GLENN A. WALP, SUED IN HIS INDIVIDUAL AND OFFICIAL CAPACITY AS COMMISSIONER OF THE PENNSYLVANIA STATE POLICE; DOROTHY THOMAS, SUED IN HER INDIVIDUAL AND OFFICIAL CAPACITY AS DIRECTOR OF THE BUREAU OF POLICE AND SAFETY, AND JOHN DOE, UNKNOWN OFFICERS OF THE COMMONWEALTH, DEFENDANTS.
The opinion of the court was delivered by: Rambo, District Judge.
Before the court is plaintiff ACT-UP's motion for a
preliminary injunction. A hearing on these issues was held
before this court on January 30, 1991. The issues relating to
the injunction have been briefed by both sides. As the key
facts relating to the injunction are either undisputed or
uncontradicted in the record, the court will dispense with
making formal findings of fact.
ACT-UP is an organization devoted to the raising of public
awareness of the AIDS crisis and the petitioning of the
government to fund more research to combat the epidemic.
According to testimony at the hearing, the individual chapters
of ACT-UP are independent of one another in actions, philosophy
and infrastructure. For instance, the Philadelphia chapter of
the group, members of whom are involved in the case here, does
not coordinate activities with or necessarily use the same
tactics as, say, the New York chapter. The earmark of
apparently all ACT-UP organizations, though, is that they are
unabashedly boisterous, demonstrative, and often profane.
In its complaint, plaintiff alleges a number of incidents
which it believes amount to a denial of its members' rights by
state police organizations under the first and fourteenth
amendments. First, plaintiff states that state police attempted
to infiltrate an ACT-UP meeting in Philadelphia the Monday
before the group planned a protest in Harrisburg at Governor
Casey's inauguration. The police did so, according to
plaintiff, in order to learn the group's plans for their
demonstration. Second, plaintiff alleges that after Governor
Casey's inauguration day speech, at which a large number of
ACT-UP protestors were present and demonstrated vociferously,
a number of ACT-UP members attempted to enter the Capitol
building and were barred from doing so by a mounted state
police officer. Third, plaintiff asserts that a week later, at
the Governor's State of the Commonwealth address, they were
denied access to the visitors' gallery at the chamber of the
House of Representatives when the gallery was locked to all
visitors.
Plaintiff filed this suit pursuant to 42 U.S.C. § 1983,
asking for damages, a declaratory judgment that defendants'
conduct is unconstitutional, and an injunction against further
violations of its members' constitutional rights under the
first and fourteenth amendments.
The only relief being requested of the court at this juncture
is a preliminary injunction, and the court will thus consider
the merits of plaintiff's case only under the narrow standards
for that type of relief. In ECRI v. McGraw-Hill, Inc.,
809 F.2d 223 (3d Cir. 1987), the Third Circuit Court of Appeals
enumerated the standards for issuance of a preliminary
injunction:
At the trial level, the party seeking a
preliminary injunction bears the burden of
producing evidence sufficient to convince the
court that (1) the movant has shown a reasonable
probability of success on the merits; (2) the
movant will be irreparably injured by denial of
relief; (3) granting preliminary relief will not
result in even greater harm to the other party;
and (4) granting preliminary relief will be in the
public interest.
ECRI, 809 F.2d at 226 (citation omitted).
At the hearing, there was considerable testimony relating to
a tape recording which plaintiff purports to be a conversation
between state police officers which was inadvertently left on
ACT-UP's answering machine. The recording is of limited
relevance for the purposes of this hearing because plaintiff is
not seeking an injunction against investigatory activity by the
state. Moreover, plaintiff has not laid a sufficient foundation
to allow the court to consider the recording in any event. At
the hearing it was revealed that plaintiff's belief that the
tape contained the voices of state police officers was based on
pure conjecture, arising from the references by the voices to
the "barracks" and "the captain's house." For all plaintiff
knows, these references could have been made by Marines as well
as police officers. Significantly, even plaintiff's members who
were convinced they were hearing police on the tape were unsure
if it was the voices of state police or City of Philadelphia
police. They sent letters of complaint to both. Hearing
Transcript, Testimony of Norman Baker, member of ACT-UP, at 16
(hereinafter Hearing Transcript will be cited at [Witness Name]
Testimony at ___.). The court cannot consider basically
unsubstantiated allegations in determining whether to order
injunctive relief.
B. The January 14, 1991 ACT-UP Meeting
With regard to the actions of the police at the January 14
ACT-UP meeting, there is no constitutional violation apparent.
According to testimony at the hearing, the ACT-UP meeting was
open to the general public. While it appears that police
officers were present, when they were asked to identify
themselves, they did, and when they were asked to leave, they
did. Baker ...