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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
V.
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

      MEMORANDUM

I. Introduction.

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 compensatory damages.

The complaint's First Amendment claims can be broken down into two groups. One group alleges that the Harrisburg police department applies Pennsylvania's disorderly conduct statute to Plaintiffs as a way of suppressing their First Amendment activities. The second group alleges facial and as-applied challenges to the permit system governing the use of city parkland for First Amendment activities as well as for group recreational and other purposes.

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

II. Background

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 follows.

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 § 10-310.26.

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 section 10-301.22(A):

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 recreation;
(C) that the proposed activity or use is not specifically intended to result in violence, crime or disorderly conduct;
(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 distributed in 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).

In addition to short-term park permits, the city leases areas in its parks under long-term leases for educational, recreational and historical purposes. One example is the National Civil War Museum, which the city built in Reservoir Park. The city has leased the museum and surrounding grounds for thirty years to a nonprofit corporation, called "The National Civil War Museum." (Defendant's exhibit 5; Tr. 154). Under the lease, the corporation controls the museum and grounds and operates the museum to preserve Civil War material, culture and sources of information, to offer the general public educational exhibits and programs and to act as a source of research and reference on the Civil War era, defined as the period between 1845 and 1870. (Defendant's exhibits 4 and 5).

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. 143-44).

B. The As-Applied Challenge to the Disorderly Conduct Citations.

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 Sucec's citations 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 ...


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