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Kathleen A. Ramsey and Albert A. Brunn v. Electronic Filing City of Pittsburgh

February 9, 2011

KATHLEEN A. RAMSEY AND ALBERT A. BRUNN, PLAINTIFFS,
v.
ELECTRONIC FILING CITY OF PITTSBURGH,PENNSYLVANIA, DEFENDANT.



The opinion of the court was delivered by: David Stewart Cercone United States District Judge

MEMORANDUM OPINION

I. INTRODUCTION

Plaintiffs, Kathleen A. Ramsey and Albert A. Brunn ("Plaintiffs"), are pro-life advocates who seek to distribute pro-life literature on public and private property in the City of Pittsburgh. Plaintiffs contend that Pittsburgh Ordinance ' 601.62 ("' 601.62") unconstitutionally restricts such distribution, and therefore, filed a complaint seeking a temporary restraining order (ATRO@) and preliminary injunction pursuant to Rule 65 enjoining the City of Pittsburgh (the "City") from enforcing ' 601.62 against them and others, in order to allow them to distribute literature without fear of being subject to the penalties associated with the ordinance.

The Court held a hearing on the motion for a TRO, and determined that Plaintiffs had (1) a reasonable probability of success on the merits; (2) that they would be irreparably harmed by denial of the relief as their First Amendment rights of free speech will be restricted; (3) the relief will not harm the City of Pittsburgh; and (4) such relief will be in the public interest. The Court granted the TRO enjoining the Defendant, its officers, agents, attorneys, employees, successors in office, police, prosecutors, and those acting in concert with them, from enforcing Pittsburgh Ordinance § 601.02.

The Court held an evidentiary hearing on the motion for preliminary injunction on November 16, 2010, and gave the parties an opportunity to file supplementary briefs in support of their respective positions. Based on the testimony at the hearing and for the reasons set forth below, the Court will grant Plaintiffs' motion for a preliminary injunction.

II. DISCUSSION

In assessing whether a preliminary injunction should be granted, four considerations must be taken into account:

(1) whether the movant has shown a reasonable probability of success on the merits; (2) whether the movant will be irreparably harmed by denial of the relief; (3) whether granting preliminary relief will result in even greater harm to the nonmoving party; and

(4) whether granting the preliminary relief will be in the public interest.

ACLU v. Reno, 217 F.3d 162, 172 (3d Cir. 2000) (quoting Allegheny Energy, Inc. v. DQE, Inc., 171 F.3d 153, 158 (3d Cir. 1999)). Issuing a preliminary injunction is an "extraordinary remedy and should be restricted to limited circumstances." Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 800 (3d Cir.1989). A district court should endeavor to balance these four factors to determine whether an injunction should issue. BP Chemical Ltd. v. Formosa Chemical & Fibre Corp., 229 F.3d 254, 263 (3d Cir. 2000). All four factors must weigh in favor of granting the preliminary injunction. See Pappan Enter., Inc. v. Hardee= s Food Sys., Inc., 143

F.3d 800, 803 (3d Cir. 1998).

As a general matter, a court Awill not invalidate a statute on its face simply because it

may be applied unconstitutionally, but only if it cannot be applied consistently with the Constitution.@ A facial challenge will succeed only if the statute in question Ais unconstitutional in every conceivable application, or . . . it seeks to prohibit such a broad range of protected conduct that it is constitutionally >overbroad.=@ Hohe v. Casey, 956 F.2d 399, 404 (3d Cir. 1992)(quoting Robinson v. New Jersey, 806 F.2d 442, ...


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