The opinion of the court was delivered by: Judge Sylvia H. Rambo
Plaintiffs, anti-abortion activists and protesters, allege that Defendant City of York violated their First Amendment rights of free speech, free assembly, and free exercise of religion by actions taken against them before and during the 2004 and 2005 York Halloween Parades. They claim that the City had a policy or custom of discriminating against them because of the content of their message. They allege that Mayor John Brenner and Director of Public Works James Gross were City policymakers such that the actions they took toward Plaintiffs should be attributed to the City itself for purposes of § 1983 liability. On these cross motions for summary judgment, the court concludes that there are not genuine issues of material fact regarding the alleged violation of Plaintiffs' First Amendment rights, but there are contested issues of fact with respect to damages. For the reasons that follow, Plaintiffs' motion for summary judgment will be granted in part and denied in part. Defendant's motion for summary judgment will be granted in part and denied in part.
The following facts are undisputed, except where noted. Plaintiff James Grove is the pastor of the Heritage Baptist Church located in Seven Valleys, Pennsylvania. Plaintiffs Dennis Krone, Patricia Stegman, and Daniel Riley, are members the Heritage Baptist Church. Plaintiffs share the sincere religious belief that abortion is a sin. They further believe that they are charged to preach, in public forums, against the practice of abortion.
Defendant City of York is a Third Class City, organized and existing under the Optional Third Class City Charter Law of Pennsylvania, 53 Pa. Cons. Stat. Ann. §§ 41101-45000. York City Government, http://www.yorkcity.org/gov/GovHome.htm (last visited Jan. 5, 2007). The City has organized annual Halloween parades for the public for many years, pursuant to Article 505 of the Codified Ordinances of the City of York. Each year, the City required all entrants in the parade to obtain a permit to march. The City did not grant permits on the day of the parade. The City provided "General Parade Regulations" to all persons who submitted applications to participate in the parade. (See Pls. [sic] App. in Supp. of Their Mot. for Summ. J. ["Pls.' App."] 9-16; Def.'s Ex. N.) The regulations did not identify the manner in which the order of appearance in the parade was determined.
On the day of the 2002 Halloween Parade, a group from Heritage Baptist Church, including Plaintiff Grove, arrived at the parade assembly grounds. Grove v. City of York, 342 F. Supp. 2d 291, 296 (M.D. Pa. 2004) ("Grove I").*fn1 They did not have a permit, but they intended to join the parade to preach against the practice of abortion while carrying an assortment of signs, some containing Bible verses and others depicting aborted fetuses. Id. Initially, they were permitted to walk along the route before the parade officially began, but after altercations with the crowd, they were instructed to leave the street. Id. at 297. Police confiscated their signs with photographs of aborted fetuses. Id. at 298. Plaintiffs filed a civil rights claim against the City of York and a number of individual defendants based on the events at the 2002 Halloween Parade.
In 2003, Plaintiff Grove applied for and was issued a permit to participate in the Halloween Parade. Id. The City issued a press release, on October 23, 2003, notifying the public that his permit had been granted. It stated that the "information that he plans to distribute may be considered offensive or graphic by recipients and it may not be appropriate for all audiences." (Pls.' App. 7.) The statement notes his constitutional right to distribute the information, but asserts that the information "does not reflect the views of the City of York." (Id.)
On the day of the 2003 parade, Plaintiff Grove's group arrived at the assembly grounds, again with large signs featuring photographs of aborted fetuses. Grove I, 342 F. Supp. 2d at 299. Assistant Solicitor Donald Hoyt informed Plaintiff Grove, on behalf of the City of York, that he would not be allowed to participate in the parade if he insisted on carrying the signs. Id.; (Hoyt Dep. 12:25-13:10, Sept. 13, 2006.) The City feared violence if he participated in the parade carrying the signs showing aborted fetuses. Grove I, 342 F. Supp. 2d at 299. Plaintiff Grove and his group chose not to march in the 2003 parade at all because their signs were prohibited. Id. Plaintiffs added civil rights claims for the events that occurred in 2003 to their suit filed in 2002.
On June 9, 2004, this court entered partial summary judgment in Grove I. 342 F. Supp. 2d at 316-17. Following negotiations by the parties, this court issued an injunction requiring the City of York to allow Plaintiff Grove and his group to participate in the annual Halloween Parade. Order, Grove v. City of York, No. 1:03-CV-00198 (M.D. Pa. Sept. 30, 2004). The City was ordered not to condition the group's appearance on the absence of signs or posters depicting aborted fetuses. Id. The group was required to abide by the duly promulgated rules and regulations for the parade. Id. The City was ordered to allow the group, during and after the parade, to walk or stand on the sidewalks of the parade route to distribute their literature, display their signs, and preach. Id. After the court order, the parties to Grove I signed a settlement agreement to end the dispute.
In 2004 and again in 2005, Plaintiff Grove applied for and was granted permits to participate in the Halloween Parades. Each year, his entry was positioned behind all other parade entrants by James Gross, Director of Public Works.*fn2 (Resps. to Pls.' Interrogs. Directed to Defs. ¶ 4; Pls.' App. 19.) Mr. Gross determined the order in which the parade entrants would proceed after consulting with Captain Arnold of the York City Police regarding public safety. (Resps. to Pls.' Interrogs. Directed to Defs. ¶ 4; Arnold Dep. 16:25-17:3, Sept. 13, 2006.) The police were concerned with maintaining Plaintiffs' security in the face of hostility from the crowd. (Arnold Dep. 11:17-23.) Captain Arnold and his traffic safety sergeant agreed that Plaintiffs' safety and the safety of the parade-going public would be best protected if their entry was "towards the end" of the parade. (Id. 13:9-18.) If Plaintiffs were last, the entire parade would not be delayed if an incident arose that stopped Plaintiffs' forward progress. (Unsworn Decl. of Capt. David J. Arnold ["Arnold Decl."] ¶ 5.) The police would have better access to Plaintiffs if an altercation occurred. (Id.) There would be more staff available to respond if Plaintiffs were placed last because uniformed officers were stationed at various intersections along the parade route. (Id.) As the end of the parade passed an officer's intersection, the officer would be free to provide additional protection for Plaintiffs as they walked. (Id.)
Plaintiffs' entry in the 2004 Halloween Parade was entitled "Dr. Butcher's Chop Shop." (Pls.' App. Attach. C.) It consisted of a van with a photograph of an aborted fetus, large enough to extend down the whole side of the van. (Stegman Dep. 12:2-5; Pls.' App. Attach. C.) The van was also decorated with small mock coffins, bearing the inscription "Baby Girl" and "Baby Boy." (Pls.' App. Attach. C.) Members of Plaintiffs' group walked in front of the van with signs containing bible verses, exhortations to repent, and admonitions against the practice of abortion. (Id.) The group members dressed in scrubs, some wearing surgical masks. (Id.) Some members distributed anti-abortion literature. (Grove Dep. 18:5-11.) Plaintiff Grove walked towards the front of Plaintiffs' entry in the parade, using a bullhorn to amplify his voice as he preached against the practice of abortion, among other "sinful" acts. (Pls.' App. Attach. C.)
During the parade, a parade-goer named Brian Wade informed Plaintiff Grove that Mayor Brenner had warned the crowd ahead that Plaintiffs' group would be walking at the end of the parade and to protect their children from the sight of the graphic photographs. (Grove Dep. 26:3-27:16; Stegman Dep. 14:24-15:13; Pls.' App. Attach. C. ) Further, as Plaintiffs' entry approached the reviewing area, the parade announcer said that "as Mayor Brenner had said at the beginning, [the York City fire engine] is being followed by something you may well not want your children to see, so this is basically the end of the parade. The last entry in the parade is entitled Dr. Butcher's Chop Shop, displaying the horrors of abortion and the wickedness of Halloween." (Pls.' App. Attach. C; see Grove Dep. 27:11-28:5; Stegman Dep. 15:3-7.) Mayor Brenner did not recall warning anyone about Plaintiffs' presence in the parade. (Brenner Dep. 24:5-15, Sept. 13, 2006.)
There were a number of vocal objectors to Plaintiffs' message during the 2004 parade. A few items were thrown at Plaintiffs from the crowd.
Before the 2005 Halloween Parade, the City of York issued a press release entitled "Note to Parents Regarding Halloween Parade." (Pls.' App. 8.) It stated that Plaintiffs had applied to participate in the parade and would be allowed to march. (Id.) It noted that the information they planned to distribute "may be considered offensive or graphic by the recipients and it may not be appropriate for all audiences." (Id.) The press release reminded readers that he had the right to distribute the material, but that his pamphlets and his parade entry "[did] not reflect the views of the City of York." (Id.)
Plaintiffs' entry in 2005 was entitled "Baby Disposal Service." (Pls.' App. 5-6.) Plaintiffs' van carried three large signs depicting aborted fetuses (Pls.' App. Attach. D.) The van was again decorated with small coffins. (Id.) Members of Plaintiffs' group carried signs depicting aborted fetuses and others with written slogans and Bible verses. (Id.) Members of Plaintiffs' group dressed in scrubs, some wearing surgical masks. (Id.) A member of their group preached as he walked, amplifying his voice with a bullhorn. (Id.) At the beginning of the parade, there was a verbal altercation and some shoves exchanged between Plaintiff Grove and members of the group in front of Plaintiffs' entry. (Id.) The police stepped in and separated the groups. (Id.) The police inserted a York City fire truck between Plaintiffs and the preceding entry. (Id.) Along the route, some members of the crowd threw items at Plaintiffs. Many in the crowd objected loudly to Plaintiffs' message.
For both 2004 and 2005, Plaintiffs admit that the City did not condition their ability to appear in the parade on the materials that they displayed or distributed, or the message that they preached. (Grove Dep. 16:8-19:2; cf. Pls. [sic] Answer to Defs. [sic] Concise Stmt. of Undisp. Facts ¶¶ 13-20.) The City did not limit the number of individuals that could participate in Plaintiffs' entry in the parade, nor did Defendant stop any member of Plaintiffs' group from walking. (Grove Dep. 16:8-19:2; cf. Pls. [sic] Answer to Defs. [sic] Concise Stmt. of Undisp. Facts ¶¶ 13-20.)
Plaintiffs commenced this action on October 27, 2005, under 42 U.S.C. § 1983, alleging violation of their rights of free speech, free assembly, and free exercise of religion. They sued the City of York and Mayor John Brenner, Police Commissioner Mark Whitman, and City Solicitor Donald Hoyt, in their official and individual capacities. (Doc. 1.) On September 26, 2006, the parties stipulated that all claims against the human defendants in their individual capacities be dismissed with prejudice and that all claims against them in their official capacities be merged with the claim against the City itself. (Doc. 21.) This court granted the order dismissing them on September 27, 2006. (Doc. 22.) On September 29, 2006, the parties filed cross motions for summary judgment (Docs. 23, 27) and supporting briefs (Docs. 24, 29). They have each filed responsive briefs (Docs. 35, 37), and the City filed a reply brief (Doc. 40). The court ordered additional briefing which is complete. The matter is now ripe for disposition.
II. Legal Standard -- Summary Judgment
Summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); accord Saldana v. Kmart Corp., 260 F.3d 228, 231-32 (3d Cir. 2001). A factual dispute is "material" if it might affect the outcome of the suit under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is "genuine" only if there is a sufficient evidentiary basis that would allow a reasonable fact-finder to return a verdict for the non-moving party. Id. The court must resolve all doubts as to the existence of a genuine issue of material fact in favor of the non-moving party. Saldana, 260 F.3d at 232.
Once the moving party has shown that there is an absence of evidence to support the claims of the non-moving party, the non-moving party may not simply sit back and rest on the allegations in its complaint. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Instead, it must "go beyond the pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Id. (internal quotations omitted); see also Saldana, 260 F.3d at 232 (citations omitted). Summary judgment should be granted where a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. "'Such affirmative evidence -- regardless of whether it is direct or circumstantial -- must amount to more than a scintilla, but may amount to less (in the evaluation of the court) than a preponderance.'" Saldana, 260 F.3d at 232 (quoting Williams v. Borough of West Chester, 891 F.2d 458, 460-61 (3d Cir. 1989)).
The standards governing the court's consideration of cross-motions for summary judgment are the same as those governing a single motion for summary judgment. Raymond Proffitt Found. v. EPA, 930 F. Supp. 1088, 1096 (E.D. Pa. 1996). The court must construe the motions independently however, viewing the evidence ...