The opinion of the court was delivered by: Stengel, J.
Defendants in this § 1983 case filed a motion for reconsideration of my order denying their motion to dismiss. Attached to the motion is an affidavit attested by defendants Cotturo and Miller showing that Yamrus faces no threat of prosecution. Because Yamrus' claim for money damages remains, the case will not be dismissed.
Joseph Yamrus flies an American flag upside-down flag in his front yard. On June 11, 2007, Washington Township police officer Scott Miller told Yamrus to remove the flag or fly it right-side-up. When Yamrus refused to remove the flag, Miller cited him for violating the Pennsylvania statute that prohibits insulting the flag.*fn2 The criminal charges were dismissed, but Yamrus filed this lawsuit requesting declaratory relief and damages. Yamrus alleges that the defendants violated his constitutional rights.*fn3
Yamrus alleges that defendants violated both his federal and state constitutional rights. The complaint states that Yamrus flies an upside-down flag at his Washington Township home as "a political statement. . . specifically directed at conduct by certain members of Congress." Compl. ¶ 11 (Document #1). After a civilian complained to township police about Yamrus's flag display, defendant Miller photographed the flag at Yamrus' home, left a phone message for Yamrus demanding that he remove the flag or fly it upright, and charged him with violating the flag statute on June 21, 2007. Compl.¶ 11-24 (Document #1). A few weeks later, on July 12, 2007, the charge was dropped. Compl. ¶ 27.
Defendants moved to dismiss this case but their motion was denied because there was no sworn assurance in the pleadings that the flag statute will not be enforced against Yamrus. Defendants have now attached to their motion for reconsideration (Document #14) a sworn assurance from officer Miller and police chief Cotturo that Yamrus will not be prosecuted for his flag display. See Mot. for Reconsideration, Exhibit C.
A party seeking reconsideration must do so on one of the following grounds: "(1) an intervening change in the controlling law; (2) the availability of new evidence that was not available when the court granted the motion. . . ;or (3) the need to correct a clear error of law or fact or to prevent manifest injustice." Max's Seafood Cafe by Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999).
The defendants present new evidence in the form of a sworn affidavit from defendants Miller and Cotturo. The affidavit, now part of the record in this case, may be considered in determining whether the complaint should be dismissed. The statement of defendants' counsel at the Rule 16 conference regarding his clients' intent never to prosecute Yamrus under the flag statute, therefore even if it was - as plaintiff argues -"available" to the court, under Third Circuit precedent, it could not be considered in deciding the motion to dismiss.
B. Sworn Assurance From Defendants Moots Controversy
There need not be an actual prosecution for Yamrus to have a ripe controversy. For pleading purposes, it was sufficient that Yamrus alleged that a statute exists, that defendants have the power and intent to enforce it and that he wishes to express his political ideas in a way he believes constitutionally protected. In the memorandum denying the motion to dismiss, I quoted Presbytery of New Jersey of the Orthodox Presbyterian Church v. Florio, et al., 40 F.3d 1454, 1467 (3d Cir. 1994), in which defendants argued that "the case is not ripe absent an actual prosecution." The Third Circuit stated, "That is not the law."
Until the motion for reconsideration was filed, defendants did not disclaim intent to prosecute or waive enforcement of the statute against Yamrus. They had supplied only the district attorney's position ("he has made it clear his belief is that he would not pursue such charges against the Plaintiff." Brief in Support of Defendants' Motion to Dismiss, Document #7, page 10). For that reason, I determined Yamrus sufficiently alleged that the probability of his future prosecution or chilling of his expressive activity is real and substantial and "of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." Armstrong World Industries, Inc. by Wolfson v. Adams, 961 F.2d 405, 412 (3d Cir. 1992) (citing Salvation ...