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Brown v. City of Pittsburgh

February 22, 2008

MARY KATHRYN BROWN, PLAINTIFF,
v.
CITY OF PITTSBURGH, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge Nora Barry Fischer

OPINION

This action comes before the Court upon Plaintiff, Mary Kathryn Brown's*fn1 (hereinafter "Brown") Motion for Preliminary Injunction [DE 22], in which Brown challenges the City of Pittsburgh's Ordinance No. 49*fn2 (hereinafter "Ordinance"), regulating access to health care facilities. Brown seeks this injunction to prohibit the City of Pittsburgh, Pittsburgh City Council, and Luke Ravenstahl, in his official capacity as Mayor of the City of Pittsburgh*fn3 (hereinafter collectively, "City Defendants"), from enforcing Sections 623.03 and 623.04 of the Ordinance against her.

Upon review of Brown's Motion and Brief [DEs 22 & 23], the City Defendants' response thereto [DE 35], the transcript of the evidentiary hearing held on September 21, 2006 including exhibits presented to the Court, Brown's Proposed Findings of Fact and Conclusions of Law [DEs 50 & 52], the City Defendants' Proposed Findings of Fact and Conclusions of Law [DEs 49 & 51], the transcripts of the City Council meetings leading to the passage of the challenged ordinance,*fn4 as well as Brown's Supplemental Authorities [DE 64], Defendants' response thereto [DE 65], and the oral argument heard by the Court on December 19, 2007, this Court now addresses Brown's motion.

I.Introduction

Brown filed a Motion for Preliminary Injunction on June 28, 2006, seeking to enjoin the City Defendants from enforcing the Ordinance as applied to her. (Docket No. 23, at 1). She maintains that the Ordinance restricts her ability to protest, an activity in which she has engaged outside various reproductive health facilities in the City of Pittsburgh for a number of years. Id. Specifically, Brown alleges that the provisions of the Ordinance are unconstitutional as applied to her individual abortion protest activities at entrances to three facilities: Planned Parenthoodin downtown Pittsburgh, Allegheny Reproductive Health Center, and Allegheny Women's Center, both in the East Liberty neighborhood of the City of Pittsburgh. (Docket No. 50, at 2 ¶ 7; Exhibits in Support of Plaintiff's Motion for Preliminary Injunction 5-7 (hereafter, "Pls. Exh." )). These facilities provide medical services to women, including abortions. The City Defendants filed their Opposition to Brown's Motion on August 3, 2006 [DE 35], and a full evidentiary hearing was held on September 21, 2006 before the Honorable Thomas M. Hardiman [DE 44]. Following the hearing, the parties submitted Proposed Findings of Fact and Conclusions of Law [DEs 50-52]. During a status conference held on May 16, 2007 [DE 54], this Court*fn5 provided the parties the opportunity to be reheard by this Court, supplement the record, and/or update their briefs. Both Brown and Defendants initially declined the Court's offer by notice to this Court received on June 1, 2007. Thereafter, during the course of a status and scheduling conference held on November 27, 2007, the Court provided the parties the opportunity to attempt to resolve the matter through the Court's Alternative Dispute Resolution program and/or a consent decree. The parties declined both options. During said conference, Brown requested leave of the Court to supplement authority and to provide argument. Accordingly, argument was held. Upon consideration of the entire record, this Court makes the following Findings of Fact and Conclusions of Law.

II. Findings of Fact

Identification of the Parties

1. Brown has worked as a Registered Nurse in Pittsburgh for twenty-two years. (Docket No. 50, at 2 ¶ 1).

2. Because of her experiences as an Emergency Department nurse, along with her religious beliefs, Brown engaged in sidewalk counseling and leafleting outside three medical services facilities: Planned Parenthood in downtown Pittsburgh, Allegheny Reproductive Health Center in East Liberty, and Allegheny Women's Center in East Liberty. There are sidewalks in front of the entrances of all three facilities. (Id. at ¶ 7).

3. Defendant City of Pittsburgh is a municipal corporation designated as a city of the second class within the Commonwealth of Pennsylvania. Defendant Pittsburgh City Council is the legislative body of the City. Defendant Bob O'Connor was the former Mayor of the City prior to his death in September 2006, after which he was dismissed as party from this action. Defendant Luke Ravenstahl is the current Mayor of the City. (Docket No. 49, at 1 ¶¶ 2-4). At the time of the Ordinance's passage, he was a member of the City Council. (Docket No. 49-3, at 1).

Enactment of the Ordinance

4. The Ordinance originated in the Public Safety Services Committee and it was sponsored by Douglas Shields, William Peduto, James Motznik, and Sala Udin. (See Appendix A). The law supplements the Pittsburgh Code of Ordinances, Title 6, Conduct Article I: Regulated Rights and Actions, by adding a new chapter, specifically Section 623, "Public Safety at Health Care Facilities." (See Appendix A).

5. At the open hearings held before the Ordinance was enacted, the public commented on the physical violence and verbal harassment that was occurring at these facilities. (See Docket No. 49-2, at 12-14, 18, 20-21, 35, 38-39, 43, 49, 53-54, 60; Docket No. 49-3, at 13, 15, 19). City Council accepted comments describing the need for the Ordinance to prevent future harm and provide additional safety to those walking on the city's streets. (Docket No. 49-2, at 12-14, 18, 20-21, 35, 38-39, 43, 49, 53-54, 60).

6. At the public meetings, the need for a more efficient use of the Pittsburgh City Police was discussed. In the six months prior to December of 2005, the City Police were summoned to the downtown facility on Liberty Avenue twenty-two (22) times. (Docket No. 49-2, at 53; Docket No. 49-3, at 13). In January of 2005, because of city budget problems, the police assignment to the downtown Planned Parenthood was eliminated. (Docket No. 49-2, at 8). Without the support of police supervision, the downtown facility has experienced an increase in problems between protestors and patients. Id. Between February and November of 2005, the downtown Planned Parenthood received sixty (60) complaints from patients regarding problematic and often physical confrontations with protestors. (Docket No. 49-3, at 13).

7. In response to concerns of violent confrontations, issues relating to the use of public sidewalks, inefficiency in the deployment of municipal police officers, lack of certainty by citizens and police officers as to proper behavior, and other matters, the City Defendants enacted Ordinance No. 49 on December 23, 2005, by a vote of six to three.*fn6 (Docket No. 49, at 2 ¶ 5; Docket No. 49-2, at 62; Docket No. 49-3, at 32).

8. The challenged provisions of the Ordinance, which became effective on December 30, 2005, provide in their entirety:

§ 623.03 EIGHT-FOOT PERSONAL BUBBLE ZONE

No person shall knowingly approach another person within eight feet (8') of such person, unless such other person consents, for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education or counseling with such other person in the public way or sidewalk area within a radius of one hundred feet (100') from any entrance door to a hospital and/or medical office/clinic. § 623.04 FIFTEEN-FOOT BUFFER ZONE No person or persons shall knowingly congregate, patrol, picket or demonstrate in a zone extending fifteen feet (15') from any entrance to the hospital and or health care facility. This section shall not apply to police and public safety officers, fire and rescue personnel, or other emergency workers in the course of their official business, or to authorized security personnel employees or agents of the hospital, medical office or clinic engaged in assisting patients and other persons to enter or exit the hospital, medical office, or clinic.*fn7 § 623.05 Penalty Section

Any person, firm, or corporation who pleads guilty or nolo contendere, or is convicted of violating of [sic] this section shall be guilty of a summary offense and punished by a fine of at least fifty dollars ($50.00) for the first offense; a fine of at least one hundred fifty dollars ($150.00) for a second offense within five (5) years; and a fine of three hundred dollars ($300.00) for a third offense within five (5) years.

For fourth and subsequent offenses within five (5) years the fine shall not be less than three hundred dollars ($300.00) and/or imprisonment for not less than three (3) days but not more than thirty (30) days.

No part of the minimum fine may be suspended or discharged, except upon proof and a finding of indigence by the court. Indigent defendants may pay fines imposed under this section by participation in a court designated community service program, crediting the commensurate dollar amount of each hour of community service toward payment of the minimum fine owed. (Ordinance, Sections 623.03, 623.04, and 623.05) (emphasis in original).

9. The purpose and intent behind the creation of the Ordinance is set forth in the Ordinance as follows:

§ 623.01 Intent of Council

The City Council recognizes that access to Health Care Facilities for the purpose of obtaining medical counseling and treatment is important for residents and visitors to the City. The exercise of a person's right to protest or counsel against certain medical procedures is a First Amendment activity that must be balanced against another person's right to obtain medical counseling and treatment in an unobstructed manner; and The City of Pittsburgh Bureau of Police has been consistently called upon in at least two locations within the City to mediate disputes between those seeking medical counseling and treatment and those who would counsel against their actions so as to (i) avoid violent confrontations which would lead to criminal charges and (ii) enforce existing City Ordinances which regulate the use of public sidewalks and other conduct; such services require a dedicated and indefinite appropriation of policing services, which is being provided to the neglect of the law enforcement needs of the Zones in which these facilities exist.*fn8

The City seeks a more efficient and wide deployment of its services which will help reduce the risk of violence and provide unobstructed access to Health Care Facilities by setting clear guidelines for activity in the immediate vicinity of the entrances to Health Care Facilities.

The Council finds that the limited buffer and bubble zones outside the Health Care Facilities established by this Ordinance will ensure that patients have unimpeded access to medical services while ensuring that the First Amendment rights of demonstrators to communicate their message to their intended audience is not impaired. (Ordinance, Section 623.01).

10. Prior to enacting Ordinance No. 49, the Pittsburgh City Council heard public comment on the proposed bill on December 7, 2005 and December 13, 2005. During these hearings, all members of the public were permitted to comment on the pending legislation. (Docket No. 49, at 2 ¶ 6). Plaintiff Brown was one of the many people who appeared and commented regarding the proposed legislation. (Id. at ¶ 7). Brown stated that she is not protesting; she stands on the sidewalks to "offer distraught women the truth." (Docket No. 49-2, at 5). She further commented that she believes the patients of these facilities are being denied information about the risks and benefits of abortion. (Id.). Brown claimed that she goes out to protest to provide the information these patients need in order to make an informed decision, and that the Ordinance prevents her from doing so. (Id. at 5-6).

Plaintiff's Activities

11. During the past fifteen years, Brown has spent hundreds of hours outside abortion facilities because she believes that if she does not go to these facilities "precious lives will be lost." (Docket No. 50, at 3 ¶ 13).

12. Brown goes out in front of abortion clinics from 7 a.m. until either 10 or 11 a.m., depending on her schedule for that particular day. She chooses that time because that is when she believes women are getting abortions. (Id. at ¶ 15-16).

13. Brown claims she has never trespassed or blocked vehicular or pedestrian ingress or egress to an abortion facility. Brown has never engaged in shoving, kicking, pushing, or elbowing of patients or anyone else outside abortion facilities. (Id. at ¶ 19).

14. When engaged in such speech activities, Brown stands on the sidewalk to the side of the entrance to abortion facilities, or she walks alongside a woman who is walking on the sidewalk in the direction of an abortion facility, in order to hand said woman a leaflet and/or have a conversation. (Id. at ¶ 20) (See Pls. Exh. 5-7*fn9 ).

15. Brown speaks to women about the physical dangers of abortion, discusses alternatives to abortion, and provides referrals for assistance with medical, physical, emotional, and spiritual needs. (Id. at ¶ 21).

16. Brown claims that she does not yell out to individuals or resort to a sound device because she believes that these methods eliminate any interest in her message by her intended audience. (Id. at ¶ 22).

17. Brown claims that throughout the years in which she has engaged in such speech activities, some women have continued their pregnancies as a result of her efforts. (Id. at 4 ¶ 23).

Brown's Testimony at the September 21, 2006 Evidentiary Hearing

18. Brown testified that she does not understand what much of the Ordinance means in the context of her speech, including what subject matter the Ordinance prohibits, what conduct or words constitute "consent," from whom she must obtain "consent," and whether the "no approach" prohibition applies to all individuals or just to individuals that intend to enter a facility where abortions may be performed. Brown maintains that she does not know what is required under the Ordinance in order to obtain consent. Furthermore, Brown states that she does not know whether she is prohibited from taking a step or even leaning toward someone to hand them some literature. (Transcript of Evidentiary & Preliminary Injunction Hearing held on September 21, 2006, at 44:13-23 (hereafter, "Trans. I.")).

19. Brown maintains that she does not know whether consent is given by a woman looking at her, stopping to talk or listen, or accepting her literature. Moreover, Brown does not know how to obtain consent when there are two people walking together, whether she needs consent from one or both, or what she can do regarding her approach within eight feet if she obtains consent from one but not the other. (Trans. I, at 44:24, 45: 1, 4-7, 8-25).

Brown's Reason for Bringing this Lawsuit

20. Brown has filed this lawsuit, including a request for injunctive relief, against the City Defendants asserting that Defendant City's application of Ordinance No. 49 is unconstitutional as applied to her under both the First and Fourteenth Amendments of the United States Constitution*fn10 and the Pennsylvania Religious Freedom Protection Act, 71 PA. CONS. STAT. §§ 2401-2407 ("RFPA").*fn11 She does not raise a claim of facial invalidity*fn12 of Ordinance No. 49 within her motion seeking injunctive relief (Docket No. 23, at 1). However, she has pled a claim of facial invalidity in her Verified Complaint. (Docket No. 1, at 7 ¶ 43).

21. Brown claims, inter alia, that with respect to the eight-foot floating bubble zone established by the Ordinance, she must run out into the street in order to "walk along side and speak with people." (Docket No. 50, at 11 ¶ 108). Whether or not Brown is forced into the street depends on where she is protesting. For example, the sidewalk in front of the downtown facility of Planned Parenthood is shorter in width than the sidewalks around the facilities in East Liberty. (See Pls. Exh. 5).*fn13

First Enforcement of the Ordinance against Brown

22. On January 28, 2006, while Brown was engaging in speech activities at the downtown Planned Parenthood facility, Officer Timothy Alexander of the Pittsburgh Bureau of Police drove up to Planned Parenthood in a marked Pittsburgh police car with lights flashing and sirens on. City Police were dispatched to the scene by 911 operators after the security officer at the facility placed a call for assistance because Brown was allegedly violating the Ordinance. (Docket No. 49, at 6 ¶ 31; Docket No. 50, at 5 ¶¶ 41-43).

23. Officer Alexander has over fifteen years of experience as a Pittsburgh Police Officer. During his service to the City, he spent many hours observing protesters at various locations, including outside medical services clinics. (Docket No. 49, at 6 ¶ 35).

24. Upon arrival at the scene, Officer Alexander, in uniform, witnessed protesters inside the fifteen foot buffer zone and noted that they dispersed upon his arrival. Subsequently, he went inside the abortion facility for approximately ten minutes to inquire as to the reason for the call. (Docket No. 49, at 7 ¶¶ 36-37).

25. As Officer Alexander came back outside, a guard at the abortion facility held the door open from inside and pointed Brown out to Officer Alexander. Officer Alexander spoke with various persons outside the clinic; he advised all of the protesters of the law and their need to comply therewith. (Docket No. 50, at 6 ¶ 44; Docket No. 49, at 7 ¶¶ 37-39).

26. When Officer Alexander approached Brown, she told him that she did not want any trouble. Ms. Brown informed him that she needed clarification about the Ordinance because she heard conflicting information from the facility employees. (Docket No. 50, at 6 ¶ 45).

27. In seeking to force Brown to comply with the Ordinance, Officer Alexander told her that in order to obtain consent she must hear the words: "I consent to you speaking to me about abortion." (Trans. I, at 45:1-3).

28. Officer Alexander advised Brown that she is not allowed to do anything within fifteen feet of the entrance of the abortion facility, and that she could not stand in the fifteen-foot buffer zone or be there at all. (Docket No. 50, at 6 ¶¶ 46-47).

29. Officer Alexander also stated that he did not want Brown to chase people down the street. (Id. at ¶ 48).

30. According to Brown, she specifically asked him if she could distribute anti-pornography literature. Officer Alexander asked Brown if he could see what she was handing out and Brown handed Officer Alexander a copy of the literature. (Trans. I, at 37:8-14; see also Pls. Exh. 3).

31. According to Brown, Officer Alexander stated that Brown could hand the literature out in front of a pornography shop. However, Officer Alexander took the leaflets with him when he left. (Trans. I, at 37:9-25, 40:22-25). Officer Alexander does not recount these facts in the same fashion; in particular, he did not recall Brown handing him the flyers (Pls. Exh. 2 and 3) that day. (Trans. I, at 78:6-24). According to the Officer, he stated that anyone could hand out literature of any kind so long as doing so complied with the Ordinance. (Id. at 78:25, 79:1-3). The Officer stated that he did not closely examine or read the contents of any leaflet nor did he intentionally prohibit distribution of one type of literature in lieu of another type. (Id. at p. 80: 2-23).

32. A pornography shop is located within the restricted one hundred-foot zone from the entrance door to Planned Parenthood on Liberty Avenue. (Docket. No. 50, at 6 ¶ 54; Pls. Exh. 5).

33. Officer Alexander told Brown that because there is an Ordinance now, he has to enforce it. (Id. at ¶ 55). According to Brown, Officer Alexander ordered: "Don't make me have to come back here again." (Id. at ¶ 56). However, Officer Alexander does not recall making that statement. (Trans. I, at 75:1-4, 11-13, 80:2-6, 21-23). He did not arrest or cite her for violating the Ordinance. (Docket. No. 49, at 8 ¶ 48-49). Indeed, Officer Alexander did not recall speaking with Brown specifically on the day he was called out to the clinic. (Trans. I, at 75:14-17, 80:7-10).

34. Brown claims that she understood Officer Alexander's warning to mean that she would be cited for violating the Ordinance if she engaged in sidewalk counseling and leafleting opposing abortion in the restricted areas outside abortion facilities. (Docket No. 50, at 7 ¶ 58).

35. Under the Ordinance, Brown understands that she is subject to arrest, detention, fine, and punishment. (Id. at ¶ 59).

36. Brown complied with Officer Alexander's orders and stopped engaging in sidewalk counseling and leafleting opposing abortion in the restricted areas. (Id. at ¶ 60).

37. According to Officer Alexander, it is common practice in the department that an officer would have to personally witness a violation before he would enforce an ordinance. (Id. at ¶ 62; Trans. I, at 56:18, 57:9).

38. Officer Alexander testified that under the Ordinance, someone within the one hundred-foot zone would not have to obtain permission from Brown to approach in order to speak to Brown. A person would only have to obtain permission from the person they are approaching in order to speak with him or her within a certain distance. (Docket. No. 50, at 7 ¶ 64; Trans. I, at 67:8-11).

39. Officer Alexander testified that one way for Brown to receive consent under the Ordinance would be to state the following: "I'm an activist, can I speak to you." (Trans. I, at 67:19-21).

Additional Incidents of Enforcement or Lack of Enforcement

40. According to Brown, following the enactment of the Ordinance, employees and escorts at the health facilities have opposed Brown's attempts to engage in related speech.*fn14 (Docket No. 50, at 8, ¶ 70).

41. The clinics employ staff members and escorts to assist patients to and from the facilities. Neither clinic staff nor escorts are employees or agents of the City. (Docket No. 49, at 10 ¶¶ 64-65; Id. at 11 ¶¶ 79-80).

42. According to Brown, these escorts run between her and the women with whom she attempts to speak outside the facilities. (Docket No. 50, at 8 ¶80). In addition, escorts follow Brown around with a camera and approach within one foot of her to take a picture in her face. (Id. at 9 ¶ 80).

43. Health facility employees instruct women on the street waiting to enter the clinics by stating: "Back up eight feet." Brown contends that these directives frustrate her attempt to obtain consent from the waiting women. (Id. at ¶ 81).

44. Brown also contends that the City of Pittsburgh and its Bureau of Police have not prohibited facility employees from engaging in speech activities in favor of abortion, or have not otherwise enforced the Ordinance against the employees. (Id. at ¶ 82). However, the police have not witnessed these events involving the facilities' employees nor were they called to the scene by the protestors or the facilities involved. (Docket No. 49, at 9 ¶55-56; at 10 ¶¶ 66-68).

45. According to Brown, on Saturdays when an allegedly high number of abortions occur, two to four health facility escorts stand at each end of the sidewalk at the start of the restricted one hundred foot zone from entrance doors, and another escort stands in the restricted fifteen foot zone near the entrance. (Docket No. 50, at 9 ¶ 84).

46. Brown states that facility escorts stand within the fifteen foot zone and scream at Brown and call her a liar and tell her that she does not know what she is talking about with respect to the subject matter of Brown's speech. Moreover, the escorts proclaim that abortion is not dangerous for women, that Brown has no right to tell women that it is dangerous, and tell Brown to back off. When Brown is within the restricted one hundred foot zone, yet outside the fifteen foot buffer zone, abortion facility escorts yell: "Back up, back up," even though she is standing in place waiting for a woman to walk by or is walking alongside a woman who has appeared to consent to Brown approaching within eight feet of her. (Id. at ¶¶ 85, 88, 90).

47. Because the facility escorts surround women in the restricted areas and walk them into the abortion facility, Brown claims that she has been prevented from getting close enough to obtain consent to approach the women. (Id. at ¶ 88).

48. On numerous occasions, facility escorts have allegedly forbidden Brown to speak to women entering the facility. Facility escorts allegedly interfered by telling Brown to back up, grabbing literature from the hands of women who had willingly accepted it as well as from Brown herself, and otherwise interfering with women who consented to speak with Brown. (Id. at ¶ 89).

49. Facility escorts tell the women to ignore Brown, that she is lying, and that Brown is not there to help them. According to Brown, even when women declined to proceed with medical services, the escorts physically turned the women around and forced them into the clinic. (Id. at 9 ¶ 90, at 10 ¶ 91; Trans. I, at 26:21-25).

50. Facility escorts have never asked Brown or any women at the facilities for permission to approach before they do so. (Docket No. 50, at 10 ¶ 92; Trans. I, at 27:14-24).

51. Brown contends that the police have not enforced the Ordinance against the clinic workers at these times when they are engaging in these activities. However, the police have not witnessed these events nor were they called to the scene. (Docket No. 50, at 10 ¶ 93; Docket No. 49, at 9 ¶¶ 55-56, at 10 ¶¶ 66-67).

52. Brown claims that the threat of arrest, detention, fine, and punishment for violating the Ordinance has caused her to be deterred and chilled in the exercise of her speech. (Docket No. 50, at 10 ¶ 94).

53. Prior to the enactment of the Ordinance, within what is now the one hundred foot zone, Brown would approach women, walk along side them, offer them literature, explain the dangers of abortion, and offer help. (Id. at ¶ 95).

54. Brown chose this type of method because she believes it is the most effective. She claims that this method fosters a close, personal, loving, compassionate, and empathetic relationship with the women she addresses. Brown would also stand within what is now the fifteen foot zone and would be able to speak with women coming from all directions. Brown would approach them and offer them literature, explain the dangers of abortion, offer them help, assistance, and alternatives. Brown contends that she would never yell, use amplification, block, push, shove, or engage in other violent behavior. (Id. at ¶¶ 96-100).

55. Under the Ordinance, if consent is not first obtained by Brown, the distance between Brown and those whom she wants to approach in order to counsel individuals and hand out leaflets is limited. (Id. at ¶ 101).

56. From outside the restricted areas, Brown states that she would attempt to determine which individuals intend to enter the health facility based on physical characteristics such as sex, age, and dress. (Id. at ¶ 103).

57. Outside the restricted areas, Brown claims that she does not know whether an individual or couple will enter a facility, a neighboring business, or simply pass by. (Id. at 11 ¶ 104).

58. Brown stated that, on numerous occasions, she would misjudge whether an individual or couple intended to enter a facility and thus would lose the opportunity to engage in speech with them because they had entered the restricted area. (Id. at ¶ 105).

59. Brown has seen people whom she did not think were going into the clinic until they entered the fifteen foot zone; then, she was unable to ...


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