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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.

    MEMORANDUM

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.

BACKGROUND

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.

DISCUSSION

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).

I. PRELIMINARY MATTERS

Plaintiff desires to show that defendants have "engaged in a systematic operation designed to frustrate and impede plaintiff's members' efforts to engage in protected conduct and associate with others for purposes of expressing opposition to the government's HIV policies." Plaintiff's Memorandum in Support of Motion for a Preliminary Injunction at 6. The court, however, believes that the only action by agents of the Commonwealth which may be properly remedied by injunctive relief is the government's closing of the gallery of the House chamber on January 28, 1991. The other complained of incidents — the alleged infiltration of the meeting and so forth — are irrelevant for the purposes of determining whether a preliminary injunction should be granted.

A. The Tape Recording

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 ...


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