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DIENER v. REED
December 2, 2002
MARK A. DIENER, STEPHEN GARISTO, JIM GROVE, PEARL GROVE, JEFF MAYON, LEE SMITH, JASON STORMS, SHERI SUCEC, AND JOHN K. YOUNG, PLAINTIFFS
STEPHEN R. REED, IN HIS OFFICIAL CAPACITY AS MAYOR OF THE CITY OF HARRISBURG, DEFENDANT.
The opinion of the court was delivered by: William W. Caldwell, United States District Judge
We are considering Plaintiffs' request for permanent injunctive
relief. Plaintiffs, a group of street preachers and protesters, were
either arrested or threatened with arrest at events in the City of
Harrisburg, Pennsylvania, mostly on charges of disorderly conduct. They
filed a complaint pursuant to 42 U.S.C. § 1983, asserting that their
First Amendment rights had been violated. They named as defendant,
Stephen R. Reed, the Mayor of Harrisburg, in his official capacity. The
complaint seeks injunctive and declaratory relief and nominal and
The part of the case challenging the permit system is somewhat
unusual. Plaintiffs themselves have never applied for a permit to use
city parkland, and apparently limit their own First Amendment activity to
protesting and preaching at events the city has permitted others to hold.
In spite of this, they make First Amendment arguments against the permit
system that would be expected to be made by those whose group activity
would be subject to the law. Nonetheless, under First Amendment standing
law, they are entitled to present these arguments.
The complaint was accompanied by a motion for a temporary restraining
order (TRO). On July 26, 2002, upon agreement of the parties, a TRO was
entered.*fn1 On August 15, 2002, a hearing was held on Plaintiff's
motion for a preliminary injunction. Following the hearing, the parties
agreed that a decision on the merits of a permanent injunction could be
made based on the evidence produced at the hearing.*fn2
A. The Harrisburg Permit System Governing
Use of Public Parkland.
Harrisburg has a permit system for the use of city parkland that
broadly covers uses for recreational, political or other purposes,
codified in nine sections of the City of Harrisburg Codified Ordinances
at Chapter 10-301, located in §§ 10-301.20 through 10-301.26 and
§§ 10-301.29 and 10-301.30, as amended by Ordinance No. 14-2001,
signed into law on October 24, 2001. Plaintiffs challenge five of these
sections. We set forth the provisions of the challenged sections as
Under section 10-301.21, a person must apply to the city's Director of
the Department of Parks and Recreation (the "Park Director" or
"Director") for a permit. Under section 10-301.20(A)(1), groups of twenty
or more persons intending to use parkland for public speeches or other
purposes must obtain a permit.*fn3 Under section 10-301.23(A)(1), a
somewhat overlapping provision, any person or group of persons
(regardless of the group's size) intending to distribute literature or
make public speeches in city parks must obtain a permit.*fn4
For a permit application under section 10-301.20(A)(1), the Park
Director must decide within three business days whether to grant or deny
it. See § 10-301.20(A)(2). If the Director decides to grant the
permit, she is authorized to include "such reasonable conditions as [she]
deem[s] appropriate. . . ." If she denies it, she must state in writing
the reasons for the denial. Id.
For a permit application under section 10-301.23(A)(1), the Park
Director must generally decide within twenty-four hours of the
application whether to grant it. See § 10-301.23(A)(2). If the permit
is granted, the Director is authorized to include "such reasonable
conditions as [she] deem[s] appropriate. . . ." If it is denied, the
Director must state the reasons for the denial. Id. For applications
submitted under section 10-301.23(A)(1) before noon on Friday or before
noon of a day preceding a holiday, the application will be acted on
before the close of business that day. See § 10-301.23(A)(2).
Under either section, if the permit is denied, there is a right to
appeal to the mayor within tens days, who must decide the appeal within
five days. See §§ 10-301.20(A)(2) and 10-301.23(A)(2). If he does not
act, "he is deemed to have sustained the appeal and the permit shall be
issued." Id. The ordinance is silent about any right to judicial review
of a mayoral denial of an appeal. The Park Director can revoke a permit
for violation of a rule, ordinance, or "for good cause shown." See §
Section 10-301.22 provides the standards for the Park Director's
issuance of a permit under both section 10-301.20(A)(1) and section
10-301.23(A)(1). They are also the standards the Mayor is to use in
deciding an appeal. See §§ 10-301.20(A)(2) and 10-301.23(A)(2). Under
The Director shall issue a permit hereunder after making
the following findings:
(A) that the proposed activity or use of the park will
not unreasonably interfere with or detract from the
general public enjoyment of the park;
(B) that the proposed activity and use will not
unreasonably interfere with or detract from the
promotion of public health, welfare, safety and
(C) that the proposed activity or use is not
specifically intended to result in violence, crime or
(D) that the proposed activity will not entail unusual,
extraordinary or burdensome expense to the City;
(E) that the facilities desired have not been reserved for
other use at the day and hour required in the application.
The city also controls the distribution of literature in certain areas
of its parkland. Literature may not be distributed in any parkland,
including Reservoir Park, Riverfront Park, Italian Lake, and City Island
in "those areas for which permits have been previously issued for a
private or public event." See section 10.301.29(A)(1), (B), (C), (D)(1).
Literature may not be distributed in Reservoir Park, "in those areas
occupied by the National Civil War Museum and the fields, lawns, and park
areas adjacent to the Museum and under its control." See section
10.301.29(A)(2). Literature may not be distributed on City Island "in
those areas occupied by leaseholders and park areas under leaseholders
(sic) control." See section 10.301.29(D)(2). Otherwise, literature may be
these and any other areas of the city parks. See section 10.301.29(E).
Section 10-301.30 also regulates leafleting. It provides that
leafleteers: (1) shall not block the entrance or exit for any park or
commercial business or any commercial activity; and (2) "shall stand on
the grass off the walkways and shall keep moving when they are on the
walkways so that they shall not block or otherwise impede public use and
enjoyment of the walkways. . . ."*fn5
At the injunction hearing, Tina Manoogian-King, the Park Director,
testified about the city's administration of the permit system. The
system provides orderly use of the parkland for the some two million
people who use the parks annually. (Tr. 112).*fn6 There are "multiple
activities" . . . occurring . . . almost simultaneously" and they are
"coordinate[d] through the permit process." (Tr. 113). Permits are good
for one day. (Tr. 116). The process ensures that permit holders can hold
their events without disruption and for their exclusive use. (Tr. 135).
As the Park Director testified, permits are even issued for weddings, and
"[i]f you are holding a wedding, you don't necessarily want someone else
to come in and disrupt your wedding." (Tr. 135). Permits are granted at
the start of the calendar year, so a line appears at her office on
January 2 for those wishing to secure a particular date, time and
location; it is first come, first served. (Tr. 110-11).
Manoogian-King uses the criteria in section 10-301.22 in issuing
permits. (Tr. 108-09). No other considerations or discretionary factors
enter into the decision. (Tr. 110). She has denied permits in the past
but only because the area sought had already been permitted to another
group. (Tr. 110). She has never denied a permit on the basis of the type
of group requesting it or the content of its message. (Tr. 122).
She issues between 500 and 700 permits a year. (Tr. 112). Some permits
are for group events like the 2001 Gay Pride Festival (Tr. 117), but if a
family wants to use a pavilion for a family event for twenty or more
persons, they must apply for a permit. (Tr. 121). The application requests
information so that the city can determine the group's need for
sanitation, electricity, space, traffic control and law enforcement.
(Tr. 117, 119, 120).
George E. Hicks, the museum's chief executive officer, described the
museum's grounds, using an architect's drawing (Defendant's exhibit 7).
There is a memorial walkway to commemorate the Civil War dead, a large
rectangular area for living-history encampments, and a parking lot for
250 cars. (Tr. 153). In addition, there is parking for buses and
recreational vehicles and some 65,000 square feet of Reservoir Park
either leased, or subject to a license, for the use of the corporation.
(Defendant's exhibit 5 at p. 1).
There are also commercial facilities on City Island which are operated
under long-term leases for recreational purposes. Manoogian-King listed
them as "the batting cages and arcade area," the "water golf area," a
"train station" and "a carousel,""Riverside Village Park," and the
"Harrisburg Senators Baseball Stadium." (Tr. 106).
The Park Director testified that the City does not allow persons to
distribute literature in areas subject to long-term leases or already
subject to a permit for another group or individual. (Tr. 104). For
example, if "the Gay Pride group" wanted to distribute literature in an
area already permitted to another group for a group baptism, the former
would be prohibited from doing do. (Tr. 123). In those circumstances, as
she has done in the past, the Park Director would work with the group
seeking to distribute literature and try to set them up in a location in
close proximity to the permitted group. (Tr. 124).
Plaintiffs have never applied for a permit for use of a park area. When
asked if she would deny a permit if Plaintiffs requested one for an area
adjoining an event for gays and lesbians so that Plaintiffs could protest
the event, Manoogian-King at first hesitated, and then said she would
grant the permit. (Tr. 141-42).
The permit holder is given the discretion to decide who is allowed into
the permitted area for leafleting, handing out pamphlets "or anything
else of that nature." (Tr. 136). Permit holders "have the right to
approve or deny whoever comes in under their permit. That includes vendors
or entertainers. It could involve concessions or arts and craft items
that people want to sell. They can deny it for a whole multitude of
reasons." (Tr. 137). Thus, as the Park Director testified, the permit
holder for a gay-pride event can exclude pamphleteers on the basis of the
contents of their pamphlets. (Tr. 137-38). The protesters may be excluded
even if they wanted to attend as mere spectators. (Tr. 137).
Persons are not allowed to block the entrances or exits of long-term
leased areas to preserve the right to operate these businesses and the
right of customers to use them. (Tr. 108). There are alternative areas in
Reservoir Park and City Island for people to pass out literature other
than leased areas, areas that allow contact with people entering the
leased areas. (Tr. 106-07).
If a person desired a permit under section 10-301.23(A)(1) after noon
on a Friday to distribute literature on a weekend, there does not appear
to be any way to apply for one in time for it to be granted. The Park
Director has twenty-four hours to grant it, see section 10-301.23(A)(2),
and she testified that city offices are closed on the weekends. (Tr.
B. The As-Applied Challenge to the Disorderly
Based on their activities, Plaintiffs and their associates have been
arrested or threatened with arrest at seven events in the City of
Harrisburg, mostly on charges of disorderly conduct. Four of these events
were for gays and lesbians. We describe the circumstances of Plaintiffs'
encounters with the police as follows.
1. The June 9, 2000, Encounter at the
National Civil War Museum.
Plaintiff Sheri Sucec testified that she was upset after reading that
Mayor Reed had signed a proclamation which she interpreted as announcing
the contributions of gay citizens to the community. (Tr. 12). To protest
the proclamation, on the evening of June 9, 2000, Sucec and plaintiff
Jeff Mayon went to the National Civil War Museum, then under construction
in Reservoir Park, a public park in Harrisburg.*fn7 (Tr. 41). The city
was holding a ceremony at the site of the museum at that time to honor
the Civil War dead.
Sucec and Mayon protested by carrying signs which read "Proof That
America Condones Sodomy" and "Blessed Is the Nation Whose God is the
Lord." (Tr. 41-42). They testified that they sang hymns, distributed
literature regarding the Mayor's proclamation and spoke with people who
were passing by. (Tr. 20). However, while the ceremony was going on, they
simply watched and listened. (Tr. 20). After the ceremony concluded,
Sucec and Mayon said that the Mayor approached them and "exploded" after
they gave him the proclamation he had issued. (Tr. 43). Before then, the
Mayor did not seem to understand what they were doing there. (Tr. 43).
The Mayor was angry and, while speaking, unintentionally spit in the face
of one of them. (Tr. 14). They said the Mayor directed them to leave the
park, but as they were complying by walking to their car, they were
arrested and taken to city hall. (Tr. 43-44).
Contrasting testimony was offered by George Hicks, the museum's chief
executive officer, who testified that after the ceremony concluded, Sucec
and Mayon "were moving towards the podium area up against where the
building was located and shouting and protesting and saying all kinds of
things." (Tr. 157). Hicks told his wife to "get to the car, get out of
here now." (Tr. 158). Sucec kept moving toward him and Mayon toward the
Mayor. (Tr. 159-60). As Sucec moved closer, she was "shouting religious
things," "haranguing and shouting in [his] face [until] she was literally
within arm's length." (Tr. 159-60). Police officers and park rangers were
called to the area. (Tr. 164).
Park ranger Thomas McDowell testified that after the ceremony, the
Mayor had asked Sucec and Mayon to "please leave." (Tr. 176). McDowell
testified that Sucec was very loud and telling the Mayor he was killing
people. (Tr. 176-77). The Mayor backed away and they kept coming forward.
(Tr. 177). McDowell was concerned for the Mayor's safety. (Tr. 177).
According to Mayon, the four persons there that night were charged with
disorderly conduct under 18 Pa. C.S. § 5503. (Tr. 43). Mayon's and
indicate they were charged under section 5503(a)(1).*fn8
However, neither the Mayor nor the police officers (except for a
corporal) attended the hearing. (Tr. 44). Plaintiffs were found not
guilty by the district justice. (Tr. 16). According to Plaintiffs'
complaint, the charges were dismissed because the Mayor was not present
at the hearing. (Tr. 34).
2. The July 29, 2000, Encounter at
Gay Pride Day in Harrisburg.
The Harrisburg Gay Pride Day was held on July 29, 2000. (Tr. 11).
Plaintiffs Stephen Garisto and Sheri Sucec were present, but outside the
boundaries of the event. Garisto testified that he was evangelizing,
passing out tracts and talking to passersby. (Tr. 89). He also said he
attempted to enter the event but was denied admission. (Tr. 89).
Harrisburg police officer Tanya Taylor cited him for disorderly conduct
under 18 Pa. C.S. § 5503(a)(2) and (4).*fn9 The citation appears to
charge him with attempting to push pass the officer into the event
despite repeated warnings not to do so. (Plaintiffs' exhibit 4).
According to him, she told him he could not be there, preaching and
passing out tracts, and that he had to be 500 feet from the event.*fn10
Manoogian-King, the Park Director, testified that she observed Garisto
"screaming his beliefs and spewing his rhetoric" through a megaphone.
(Tr. 127). She also testified that she saw him grab a person by the arm
and waive a Bible in that person's face, again "spewing his rhetoric."
(Tr. 127). Garisto invaded her "personal space" as well, about a foot
from her face, screaming that she was "destroying the moral fibre of
Harrisburg" by allowing the event to take place. (Tr. 127-28). According
to her, Garisto was "out of control running ...