The opinion of the court was delivered by: William W. Caldwell United States District Judge
Plaintiffs are the World Wide Street Preachers'
Fellowship (SPF), a ministerial fellowship of Christian street preachers, and Mark A. Diener, a member of SPF and a street preacher. Diener and members of SPF often preach at public events. One such event is PrideFest, an annual festival held in Harrisburg, Pennsylvania, scheduled this year for July 29, 2006.
We have before us Plaintiffs' motion for a preliminary injunction. In anticipation of the upcoming PrideFest, the motion requests that we enjoin Harrisburg's noise ordinance both facially and as applied, and Pennsylvania's defiant trespass statute as applied.
PrideFest is held in Riverfront Park, a public park in the City of Harrisburg that runs in a north-south direction between the Susquehanna River on the west and Front Street on the east. Front Street is a three-lane, one-way street for southbound traffic. Typically, PrideFest organizers have obtained permits from the city to hold PrideFest at the southern end of the park in an area roughly shaped like a narrow rectangle. The permitted area's width is the western curb line of Front Street to the top of the river's embankment.
The requested relief is based on what happened to Ron McRae, another street preacher and a director of SPF, while he was preaching at the July 2005 PrideFest.*fn1 At one point during the day, McRae was using a megaphone to preach at those in the festival. He was standing on the sidewalk in the 300 block of South Front Street across the street from the festival, the area of South Front Street closest to the festival. (Doc. 29, preliminary-injunction-hearing transcript, p. 48). That portion of the sidewalk is privately owned by Pinnacle Health, a health-care provider. The privately owned portion is along the width of two Pinnacle Health buildings that faces Front Street and goes to the eastern curb line of the street. However, the sidewalk is contiguous with other portions of the sidewalk, both north and south of the Pinnacle Health buildings, that run along Front Street.*fn2 The police requested that McRae turn down the volume of his megaphone, which he did. He then continued to preach.
However, the police had received noise complaints about McRae's preaching. The police contacted Pinnacle Health security to confirm that the preachers were standing on Pinnacle Health property. Pinnacle Health confirmed that it owned the sidewalk and requested that the preachers be removed. A Pinnacle Health security officer testified at the preliminary-injunction hearing that this was for liability reasons, that Pinnacle Health did not want to be liable if a preacher was injured while standing on its property. Defendant Baldwin, a police captain, testified at the hearing that McRae could have used the sidewalk as long as he "used the property for egress or regress and not simply stand in that area of private property . . ." (Doc. 29, p. 52).
After being warned, McRae refused to leave and was arrested for defiant trespass under 18 Pa.C.S. § 3503(b)(1)(i).*fn3
He was also charged with a violation of Harrisburg's noise ordinance, with a citation to section 3-343.2(a) of that ordinance. See Harrisburg, Pa., Ordinance No. 43-1999 (Nov. 10, 1999).*fn4 McRae was convicted of both charges before the district justice and appealed to the Court of Common Pleas of Dauphin County, Pennsylvania. The state trial court held a hearing on May 17, 2006, and a decision is pending.
Captain Baldwin testified at the preliminary-injunction hearing that the police had had three complaints of noise about McRae. One had come from within the festival, one from neighbors about a half-block away, and a third from a woman visiting a residence very near to where McRae was preaching. (Doc. 29, pp. 43-44, 47-48). At the hearing in Dauphin County Court, she testified that McRae had amplified his speech so that it would rise above the traffic noise, (Dft.'s Ex. 8, p. 36), but backed away from this point at the preliminary-injunction hearing. (Doc. 29, pp. 53-55). At the Dauphin County Court hearing, the third complainant testified that McRae was "yelling and screaming" and that she thought she could hear music coming from him. (Dft.'s Ex 8, pp. 7, 13).
Plaintiff Diener testified at the preliminary-injunction hearing that he had preached at the 2005 PrideFest, standing on the sidewalk and sometimes using a megaphone. He planned on returning this year but was fearful of being arrested as McRae had been last year.
III. Standard For a Preliminary Injunction
In order to obtain a preliminary injunction, plaintiffs must show both (1) that they are likely to experience irreparable harm without an injunction and (2) that they are reasonably likely to succeed on the merits. A court may not grant this kind of injunctive relief without satisfying these requirements, regardless of what the equities seem to require.
Adams v. Freedom Forge Co., 204 F.3d 475, 484 (3d Cir. 2000)(cited cases omitted).
Further, "[t]o show irreparable harm, the party seeking injunctive relief must at least demonstrate 'that there exists some cognizable danger of recurrent violation' of its legal rights," Anderson v. Davila, 125 F.3d 148, 164 (3d Cir. 1997)(quoted case omitted), "'a real or immediate threat'" that the violation will reappear "in the near future." Id. This rule applies even in First Amendment cases. Id.
"If these two threshold showings are made the District Court then considers, to the extent relevant, (3) whether an injunction would harm the [nonmoving parties] more than denying relief would harm the plaintiffs and (4) whether granting relief would serve the public interest." Tenafly Eruv Ass'n, ...