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McTernan v. City of York

August 24, 2009


On Appeal from the United States District Court for the Middle District of Pennsylvania, (D.C. No. 07-cv-00088), District Judge: Honorable John E. Jones, III.

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


Submitted Under Third Circuit LAR 34.1(a) January 12, 2009

Before: SLOVITER and BARRY, Circuit Judges, and POLLAK*fn1, District Judge


We address this case in light of our recent decisions in McTernan v. City of York, 564 F.3d 636 (3d Cir. 2009), Holman v. City of York, 564 F.3d 225 (3d Cir. 2009), and Snell v. City of York, 564 F.3d 659 (3d Cir. 2009). Although this case, like those cases, involves protestors at a health facility where abortions are performed, in this case the protestors seek to protest on a handicapped entrance ramp to the facility. Because doing so would block handicapped access to the ramp, and the protestors have the opportunity to stand immediately next to the ramp on the public sidewalk and communicate to those entering the facility, we affirm the District Court's decisions denying the preliminary injunction Plaintiffs sought and dismissing their action.

I. Factual Background

The complaint alleges that the four plaintiffs (appellants on appeal), John McTernan, Edward D. Snell, John Wood, and Luanne C. Ferguson (collectively, the "Plaintiffs"), profess devout Christian beliefs, including a belief that their religion requires them to share these beliefs with others. Based on these religious beliefs, Plaintiffs protested against abortions outside a Planned Parenthood facility in the City of York, Pennsylvania (the "Facility").

The Facility is situated next to a public sidewalk and has a ramp leading to its front entrance that runs parallel to the sidewalk. The ramp has handrails on either side as well as a canopy above. A survey conducted by Plaintiffs showed that 2.9 feet of the ramp were constructed on the public right of way.

Based on this survey, McTernan sent a letter dated November 22, 2006, to Mark L. Whitman, the Commissioner of the York City Police Department, "requesting that [Whitman] require [Planned Parenthood] to... remove the section that encroaches and extends over the property line." App. at 65. In this letter, McTernan also stated that he had notified the CEO of Planned Parenthood of the violation and requested that she cease hanging banners, at least one of which stated, inter alia, "Pledge-A-Protestor Campaign in Effect Today," App. at 66, between the canopy and the railing of the ramp. McTernan's letter noted that when the banners were still hanging two days later, he asked the on-site supervisor to remove them because they were in the public right of way. She declined to do so.

On November 29, 2006, Jason Jay, an officer with the City of York Police Department, was on duty outside the Facility. Plaintiffs, noting that a portion of the ramp and the banner was located on the public right of way, sought permission from Officer Jay to go on the ramp to communicate with clients entering the Facility. Officer Jay refused them permission, telling Plaintiffs that he would arrest them for trespass if they went on the ramp.

These allegations formed the basis of Plaintiffs' suit against Officer Jay, Commissioner Whitman, and the City of York, Pennsylvania (collectively, the "Defendants"), claiming violations of Plaintiffs' rights to the free exercise of religion, peaceful assembly, and freedom of speech. Plaintiffs sought (1) a declaratory judgment that Defendants' failure to allow them on the ramp was unconstitutional, (2) temporary and permanent injunctions restraining Defendants from prohibiting Plaintiffs access to the ramp, and (3) nominal damages, and costs and attorneys' fees.

The same day the complaint was filed, Plaintiffs filed a motion for a preliminary injunction to prevent Defendants from interfering with their "free exercise rights" and "First Amendment rights." App. at 77-78. The District Court held an evidentiary hearing on the preliminary injunction request. Shortly thereafter, Defendants filed a motion to dismiss, relying on federal regulations issued under the Americans with Disabilities Act ("ADA") governing handicapped accessible ramps. They cited, for example, 28 C.F.R. Part 36, App. A, which requires that ramps for handicapped accessible buildings and facilities include a clear width of 36 inches, 28 C.F.R. Part 36, App. A § 4.8.3, a level landing at both the bottom and the top of the ramp, id. at § 4.8.4, edge protection for ramps like the one in question, which has a dropoff, id. at § 4.8.7, and handrails along both sides of the ramp, id at § 4.8.5(1). All of the requirements are applicable to the Facility. Additionally, as the Facility provides medical services, the ramp leading to the Facility must have an overhead canopy or overhanging roof. Id. at § 6.2.

At the preliminary injunction hearing, Defendants presented testimony from David Redshaw, who had been the Building Code Inspector for the City of York from September 2004 to December 2004, during which time he oversaw the renovation of the front of the Facility, including the construction of the ramp. Prior to working as the Building Code Inspector, Redshaw "was the rehab specialist for the Bureau of Housing Services for nearly five years." App. at 255. During that period, Redshaw became familiar with the various state and federal codes and regulations related to accessibility requirements.

Redshaw testified that it was York policy to permit an encroachment onto the public right of way when the intrusion was de minimis and was necessary to allow construction of a handicapped accessibility ramp. An intrusion was considered de minimus when the ramp encroached no more than three feet onto the sidewalk and left at least five feet of sidewalk remaining. Redshaw was personally aware of at least two other businesses in York with handicapped ramps encroaching in this manner on the public right of way, and had noticed other buildings encroaching on the sidewalk in a similar manner.

When Redshaw was asked "Are there any accessability issues, based on your experience, with people standing or congregating on a handicap accessible ramp that are not issues with the public sidewalk?", he replied that "[t]he building codes state that you may not obstruct or reduce the accessibility of this means of egress." App. at 268-69. Indeed, a regulation promulgated in connection with the ADA provides: "In buildings or facilities, or portions of buildings or facilities, required to be accessible, accessible means of egress shall be provided in the same number as required for exits by local building/life safety regulations." 28 C.F.R. Part 36, App. A § 4.1.3(9). The regulation also defines "means of egress" as "[a] continuous and unobstructed way of exit travel from any point in a building or facility to a public way." Id. at § 3.5.

After the hearing, the District Court denied the motion, finding that the ramp was a nonpublic forum. The Court concluded that because the static presence of a person on the ramp area, even if solely over the public right of way, would impede access, "it is entirely reasonable for Officer Jay to instruct individuals not to stand or congregate on the ramp." App. at 15. The Court further stated, "It is plain common sense that if an individual other than the fictional Ichabod Crane stood in the area of the ramp that encroaches onto the public right-ofway, there would necessarily be less than the required minimum clear width of 36 inches between the handrails as required by the ADA." App. at 12.

The District Court also held that, because Plaintiffs "are not hindered in delivering their message in the vicinity of [the Facility]," they would not be denied their First Amendment rights if the injunction were not granted. App. at 17. Moreover, the Court concluded that the City of York would be harmed if handicapped access to buildings were affected, a concern that was also within the public interest. The District Court therefore denied the preliminary injunction. Based on its ruling that the ramp was a nonpublic forum and that Plaintiffs had therefore suffered no constitutional injury, the District Court granted the motion to dismiss shortly thereafter.

II. Standard of Review

The appeal was timely filed and this court properly has jurisdiction over both issues under 28 U.S.C. § 1291. This court reviews the District Court's decision on a motion to dismiss de novo. AT&T v. JMC Telecom, LLC, 470 F.3d 525, 530 (3d Cir. 2006). We have stated that, "[i]n deciding a motion to dismiss, all well-pleaded allegations of the complaint must be taken as true and interpreted in the light most favorable to the plaintiffs, and all inferences must be drawn in favor of them." Schrob v. Catterson, 948 F.2d 1402, 1408 (3d Cir. 1991) (citation omitted). In addition to the complaint itself, the court can review documents attached to the complaint and matters of public record, Lum v. Bank of America, 361 F.3d 217, 221 n.3 (3d Cir. 2004), and a court may take judicial notice of a prior judicial opinion.

Ordinarily, when reviewing a decision to grant or deny a preliminary injunction, this court reviews a district court's findings of fact for clear error, conclusions of law de novo, and the ultimate decision to grant or deny the preliminary injunction for an abuse of discretion. Child Evangelism Fellowship of N.J. v. Stafford Twp. Sch. Dist., 386 F.3d 514, 524 (3d Cir. 2004). However, when First Amendment rights ...

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