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McTernan v. City of York

April 27, 2009

JOHN MCTERNAN, APPELLANT
v.
CITY OF YORK, PENNSYLVANIA; MAYOR JOHN S. BRENNER, IN HIS OFFICIAL CAPACITY; POLICE COMMISSIONER MARK L. WHITMAN, IN HIS OFFICIAL CAPACITY; SERGEANT RICHARD BARTH, YORK POLICE DEPARTMENT, IN HIS OFFICIAL AND INDIVIDUAL CAPACITIES



Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil No. 06-cv-02132) District Judge: Honorable John E. Jones, III.

The opinion of the court was delivered by: Rendell, Circuit Judge.

PRECEDENTIAL

Argued October 23, 2008

Before: RENDELL, and SMITH, Circuit Judges, and POLLAK,*fn1 District Judge.

OPINION OF THE COURT

Appellant John McTernan appeals from the District Court's grant of summary judgment against him and dismissal of his Monell claims for municipal liability in this action pursuant to 42 U.S.C. § 1983; Monell v. New York City Dep't of Social Servs., 436 U.S. 658 (1978).

I.

McTernan is a pro-life advocate who regularly speaks to pregnant women as they enter Planned Parenthood of Central Pennsylvania ("Planned Parenthood"), a reproductive health clinic (hereinafter "Clinic") in York, Pennsylvania. His complaint challenges a restriction imposed by police, specifically Sergeant Barth, on his ability to walk in an alley adjacent to the Clinic to speak to clients. Sergeant Barth, a member of the City of York police department, is one of several officers assigned to overtime detail at the Clinic under a contract between Planned Parenthood and the City. McTernan Appendix ("M.A.") 182. To dissuade pregnant women from undergoing an abortion, McTernan emphasizes the sanctity of the fetus, distributes pro-life literature, and discusses alternatives to, and the health risks of, abortion. McTernan's activities emanate from deeply rooted Christian religious beliefs. M.A. 220.

A.

We are presented with two other appeals by protesters with complaints similar to McTernan's (Holman v. City of York, No. 07-4438; and Snell v. City of York, No. 07-4439). Each of the three appellants (collectively "appellants" or "plaintiffs") sued individually complaining of restrictions on his First Amendment rights of free speech, assembly, and religious expression. Additionally, Snell and Holman have complained that their arrests for activity outside the Clinic violated their Fourth Amendment rights. While certain facts as stated in the three appeals are similar, the claims of each were separately asserted in, and decided by, the District Court. We will therefore treat each case separately, while noting certain similarities.

McTernan's case was filed first, and we will deal herein with the common issues in depth, while the other opinions may incorporate certain principles relied upon herein by reference.

All three complaints contain certain common allegations:

(1) Plaintiffs attempt to dissuade women entering the Clinic from undergoing an abortion;

(2) Deeply rooted Christian beliefs animate plaintiffs' activities at the Clinic;

(3) Encounters between plaintiffs, other protesters, and clients are generally peaceful, and no violent altercations have occurred;

(4) On multiple occasions, officers assigned overtime detail at the Clinic have restricted plaintiffs' access to Rose Alley, a public street adjacent to the Clinic; and

(5) Access restrictions were adopted at Planned Parenthood's behest, and under "color and pretense" of the customs and policies of the City of York.

There was extensive discovery, and the facts as we recount them here are based on deposition testimony. Except where noted to the contrary, the facts are not disputed. These cases are alike in that they paint a picture, aided in part by DVDs submitted by each of the three plaintiffs, very different from most other abortion clinic protest cases. Here, the police focus was not on the disruption caused by protesters, as such; rather, the justification for the restrictions on plaintiffs' activities was grounded in a concern for traffic safety in the alley abutting the Clinic. Police worried that vehicles traveling through the alley would collide with advocates congregating there. The defendants have admitted allegations in plaintiffs' complaints as to the absence of physical confrontations of the sort that frequently accompany anti-abortion proselytizing. There is no claim, and absolutely no evidence presented, that plaintiffs' activities have sparked violence, endangered clients' health, or violated clients' rights to privacy, as in other cases.*fn2

B.

As the physical layout and setting of the Clinic are crucial to our analysis, we describe both in detail. The Clinic fronts South Beaver Street in York, Pennsylvania. Two roads run perpendicular to South Beaver Street on either side of the Clinic -- Hancock Street and Rose Alley. M.A. 180 (map of Clinic environs). Rose Alley is a public street maintained by the City of York. M.A. 166. It is approximately 20 feet wide and is lightly traveled. M.A. 173, 219. A publishing business is located at the far end of the alley, and its employees, and trucks making deliveries, use the alley to access the company's parking lot. M.A. 173. There is no posted speed limit in Rose Alley, nor are there signs restricting the direction of travel or the size of vehicles using the alley. M.A. 133, 245-46. The Clinic owns or leases a front and a rear parking lot, which are used by Clinic employees and clients. M.A. 132, 173, 180. The front lot, which faces South Beaver Street, is adjacent to Rose Alley. M.A. 132, 180. The back lot is situated near the rear entrance of the Clinic farther down the alley. M.A. 132, 173, 180. Both the front and rear entrances of the Clinic feature handicap ramps. M.A. 224.*fn3

Protesters may display signs, distribute literature, and engage patrons on the public sidewalks abutting the front entrance of the Clinic and running between the front parking lot and South Beaver Street. M.A. 132, 183; Holman Appendix ("H.A.") 295; Snell Appendix ("S.A.") 165.

Typically, Planned Parenthood personnel, dressed in white smocks, meet women entering the front lot and escort them across Rose Alley and over the public sidewalk to Planned Parenthood's front entrance. M.A. 219. Other times, clients are dropped off at the rear entrance of the Clinic. Standing at the far end of the alley, McTernan attempts to converse with these women as they enter the Clinic from the rear. M.A. 221.

C.

On June 29, 2005, McTernan and another protester were standing in Rose Alley when a vehicle swerved sharply towards them. Believing that the driver had acted deliberately to intimidate him, McTernan asked Sergeant Barth to charge the driver. Sergeant Barth did not do so. McTernan maintains that Sergeant Barth minimized the significance of the incident. M.A. 175, 274.

Following the incident on June 29, 2005, police restricted access to Rose Alley. On September 28, 2005, Sergeant Barth advised protesters and Planned Parenthood escorts outside the Planned Parenthood facility, including McTernan, that they were prohibited from standing or lingering in, or "walking aimlessly" through, Rose Alley. M.A. 165-66, 183, 220, 224. Citing safety concerns and McTernan's near-collision on June 29, 2005, Sergeant Barth informed members of both camps that they would only be permitted to cross Rose Alley where it intersected with South Beaver Street. M.A. 165-66, 183. There was no vehicular traffic in the alley at the time Sergeant Barth instructed advocates. M.A. 220. Sergeant Barth noted that his instructions were generally obeyed. M.A. 166.

Sergeant Barth also told McTernan that he could walk through the alley but had to do so "legally," in the "correct way," and could not "English-walk." M.A. 220, 224. McTernan requested that Sergeant Barth define these terms but he declined to do so. M.A. 220, 224. McTernan then walked up and down the alley. After doing so, he inquired whether his manner of walking was legal. M.A. 220, 24. Sergeant Barth informed McTernan that it was not and threatened to arrest him if he did so again. M.A. 220, 224. Accordingly, McTernan did not enter Rose Alley again that day, instead using the public sidewalk in front of the Clinic to converse with clients. M.A. 174, 221. After September 28, 2005, McTernan continued his advocacy outside the Clinic but avoided Rose Alley, without further incident. M.A. 174, 221.

D.

McTernan filed suit in the United States District Court for the Middle District of Pennsylvania under 42 U.S.C. § 1983, claiming violations of his First Amendment rights of free speech, assembly,*fn4 and religious expression. In his complaint, McTernan named as defendants the City of York, Mayor John Brenner and Police Commissioner Mark L. Whitman in their official capacity, and Sergeant Barth, in his individual and official capacities. McTernan sought declaratory relief, temporary and permanent injunctions, and compensatory and punitive damages.

Defendants Brenner, Whitman, the City of York, and Sergeant Barth jointly filed a motion to dismiss under Fed. R. Civ. P. 12(b)(6). Claims against Defendants Brenner, Whitman, and Sergeant Barth in their official capacity were dismissed. M.A. 5 (citing Kentucky v. Graham, 473 U.S. 159, 165 (1985) (noting that "an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity[,]" since "[i]t is not a suit against the official personally, for the real party in interest is the entity.")). Dismissing McTernan's municipal liabilityclaim against the City of York, the District Court also found that McTernan failed to identify a "custom or policy" of depriving McTernan of his constitutional rights. M.A. 6-9. The claim against Sergeant Barth in his individual capacity, however, survived dismissal by the "thinnest" margin. M.A. 11.

After discovery, Sergeant Barth moved for summary judgment, and the District Court granted the motion. Addressing the law underpinning the "free exercise" claim, the District Court stated that if government action is "neutral and generally applicable," and burdens religious conduct only "incidentally," the Free Exercise Clause offers no protection. If, on the other hand, government action is not neutral and generally applicable, strict scrutiny applies, and the government action violates the Free Exercise Clause unless it is narrowly tailored to advance a compelling government interest. M.A. 20. The District Court concluded that Sergeant Barth's directive to McTernan, prohibiting his standing or lingering in the alley, was neutral and generally applicable, since the prohibition applied equally to protesters and Planned Parenthood personnel, and no evidence suggested that the restriction was prompted by hostility to McTernan's pro-life message. M.A. 20. The District Court found, further, that the prohibition only incidentally burdened McTernan's religiously motivated conduct:

McTernan admits that the Planned Parenthood facility is bordered on two sides by public sidewalks in which he is free to engage in his religious conduct. (SUF, SIO ¶ 18; McTernan Dep. at 15-18.) McTernan admits that Sergeant Barth did not prohibit or prevent him or any member of his group from carrying signs, distributing literature, expressing their views, or otherwise engaging in religiously motivated conduct on these sidewalks or in any location other than the alley. (SUF, SIO ¶¶ 13-16; McTernan Dep. at 35-37.) McTernan retained substantial opportunity to engage in his religiously motivated conduct.

M.A. 21. Accordingly, the District Court found no violation of the Free Exercise Clause.

Addressing the free speech and assembly claims, the District Court applied the "forum" analysis adopted by the Supreme Court. Under this approach, the type of forum in which the speech occurs dictates the restrictions that the government may permissibly impose. Int'l Soc'y for Krishna Consciousness, Inc. v. N.J. Sports & Exposition Auth., 691 F.2d 155, 159 (3d Cir. 1982) ("The extent to which the government may limit activity protected by the First Amendment depends largely on the locale where the speech or conduct takes place.").

The Supreme Court has identified three types of fora: the traditional public forum, the designated public forum, and the nonpublic forum. Ark. Educ. Television Comm'n v. Forbes, 523 U.S. 666, 677 (1998). Traditional public fora include public parks, streets, and other locales historically used for purposes of assembly, communicating with fellow citizens, and discussing public questions. Boos v. Barry, 486 U.S. 312, 318 (1988). The District Court concluded, and the parties do ...


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