United States District Court, W.D. Pennsylvania
NIKKI BRUNI, JULIE COSENTINO, CYNTHIA RINALDI, KATHLEEN LASLOW, and PATRICK MALLEY, Plaintiffs,
CITY OF PITTSBURGH, PITTSBURGH CITY COUNCIL, and WILLIAM PEDUTO, in his official capacity as Mayor of the City of Pittsburgh, Defendants
[Copyrighted Material Omitted]
For NIKKI BRUNI, JULIE COSENTINO, CYNTHIA RINALDI, KATHLEEN LASLOW, PATRICK MALLEY, Plaintiffs: Elissa Graves, LEAD ATTORNEY, PRO HAC VICE, Alliance Defending Freedom, Scottsdale, AZ; Lawrence Paladin, Jr., LEAD ATTORNEY, Paladin Law Office, Pittsburgh, PA; Matthew S Bowman, LEAD ATTORNEY, PRO HAC VICE, Alliance Defending Freedom, Washington, DC.
For CITY OF PITTSBURGH, PITTSBURGH CITY COUNCIL, WILLIAM PEDUTO, in his official capacity as Mayor of the City of Pittsburgh, Defendants: Michael E. Kennedy, LEAD ATTORNEY, Lourdes Sanchez Ridge, Matthew S. McHale, City of Pittsburgh Department of Law, Pittsburgh, PA.
MEMORANDUM AND ORDER
Cathy Bissoon, United States District Judge.
This matter is before the Court on Plaintiffs' Motion for Preliminary Injunction (Doc. 3) and Defendants' Motion to Dismiss (Doc. 15). A hearing took place on December 3, 2014. Upon full consideration of the evidence presented, Plaintiffs' Motion for Preliminary Injunction will be denied, and Defendants' Motion to Dismiss will be granted in part and denied in part.
A. Findings of Fact
Section 623.04 of the Pittsburgh Code of Ordinances, titled " Fifteen Foot Buffer Zone," sets forth that:
[n]o person or persons shall knowingly congregate, patrol, picket or demonstrate in a zone extending fifteen (15) feet 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.
Pittsburgh, Pa., Code tit. 6, § 623.04 (the " Ordinance" ). A permanent injunction altered the Ordinance in 2009, requiring, inter alia, that the City clearly demarcate any buffer zone prior to its enforcement. Order Granting Permanent Injunction (the " Injunction" or " Inj." ), ECF 2:06-cv-00393, Doc. 85, ¶ 1 (W.D. Pa. Dec. 17, 2009). Presently, two " buffer zones" are delineated and enforced in the City of Pittsburgh, both of which are located outside of reproductive health care facilities where abortions are performed. One of the two buffer zones is indicated by a bright, yellow semi-circle painted around the entrance of 933 Liberty Avenue, the downtown Planned Parenthood clinic (" 933 Liberty" or " downtown Planned Parenthood" ). The buffer zone outside of that location extends fifteen feet in each direction from the outside edge of the double-door entrance; at its widest point, it is approximately 36 feet long.
Defendants' asserted interests in maintaining the buffer zone Ordinance include " protecting the woman's freedom to get necessary medical care, and insuring public safety and order," in addition to " ensur[ing] 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." Tr. of Hearing on Mot. For Prelim. Inj. and Mot. To Dismiss, Dec. 3, 2014, (" Tr." ) (Doc. 23) at p. 89; Pittsburgh, Pa., Code tit. 6, § 623.01. Prior to the enactment of the Ordinance, there were incidents of physical intimidation, violence and obstruction where the buffer zone now stands. Such incidents have rarely, if ever, occurred since the buffer zone has been implemented.
Plaintiffs regularly engage in anti-abortion activities outside of the buffer zone at the downtown Planned Parenthood. Their advocacy takes the form of " sidewalk counseling," through which they " seek to have quiet conversations and offer assistance and information to abortion-minded women by providing them pamphlets describing local pregnancy resources, praying, and peacefully expressing this message of caring support to those entering and exiting the clinic." Pl.'s Proposed Findings of Fact and Conclusions of Law (Doc. 25) at p. 8, ¶ 20. Plaintiff Nikki Bruni (" Plaintiff Bruni" or " Mrs. Bruni" ) began sidewalk counseling at the downtown Planned Parenthood in 2009, after the Injunction invalidated a provision of the Ordinance that had previously banned sidewalk counseling within 100 feet of the clinic entrance. The buffer zone has been in place since before Mrs. Bruni began sidewalk counseling. She regularly engages in prayer, leafleting, sidewalk counseling, and general anti-abortion advocacy outside of the buffer zone's yellow boundary line.
Mrs. Bruni stands directly outside of the buffer zone, approaches potential Planned Parenthood patients, and offers them literature and conversation about alternatives to abortion. If she is walking alongside a Planned Parenthood patient headed towards the clinic entrance, she stops at the buffer zone's boundary. From there, she continues to speak, and outstretches her
arm to offer literature. At that point, the patient may continue the approximately five additional steps into the clinic; stop in her tracks and continue to converse with Mrs. Bruni; or exit the buffer zone in order to continue the conversation. All three scenarios have occurred. The buffer zone does not prevent a willing listener from stopping within the zone in order to accept Mrs. Bruni's literature and listen to her message, or from exiting the zone in order to converse with her further. The Ordinance does not prevent Mrs. Bruni or anyone else from engaging in sidewalk counseling with individuals leaving the clinic, once they exit the buffer zone.
Mrs. Bruni believes that she would reach more people if permitted to walk with them for the additional fifteen feet between the edge of the buffer zone and the clinic entrance. It is not often that the women she approaches stop, turn around, and exit the buffer zone in order to continue to speak with her, although this has occurred from time to time. Ninety percent of those entering the downtown Planned Parenthood facility are doing so for non-abortion-related purposes.
Abortions are performed at the downtown Planned Parenthood on Tuesdays, Fridays and Saturdays. On those days, approximately four to six individuals engage in some form of demonstrating or picketing outside of the buffer zone. More individuals are present during the bi-annual Forty Days for Life campaign. See infra. Paula Harris (" Ms. Harris" ), Planned Parenthood Volunteer Coordinator, and Kim Evert, President and CEO of Planned Parenthood of Western Pennsylvania, can hear those outside of the zone speaking in normal, conversational tones, even when they stand at the clinic entrance, the point farthest from the edge of the zone. Patients regularly enter the clinic holding literature given to them by sidewalk counselors.
Defendants have acknowledged that ordinary pedestrian traffic is permitted in the buffer zones. Prior to the December 3, 2014, Motion Hearing, Plaintiff Bruni understood the Ordinance to prohibit sidewalk counselors from walking through the buffer zone in order to reach a patient approaching the clinic from its other side. She stated that the buffer zone forecloses her opportunity to reach those patients for that reason. Defendants clarified that the Ordinance does not prohibit sidewalk counselors from walking through the buffer zone in order to reach a particular audience, as long as they refrain from engaging in sidewalk counseling as they do so. As such, Mrs. Bruni may access potential patients who approach the downtown Planned Parenthood from either side of the zone. Mrs. Bruni acknowledged that it will be easier to engage in sidewalk counseling now that she knows she is permitted to walk through the buffer zone.
Mrs. Bruni has been an organizer and leader of the Pittsburgh Forty Days for Life campaign since 2010. The campaign occurs every spring and fall, and the individuals involved pray outside of abortion clinics from 7:00 am to 7:00 pm every day for forty days. The participants additionally engage in sidewalk counseling. Plaintiffs do not shout their message, but rather aim to engage women in one-on-one conversation.
The City of Pittsburgh reads the Ordinance to prohibit sidewalk counseling, as a form of " picketing" or " demonstrating," within the demarcated buffer zones. Defendants have not issued any citations for violations of the Ordinance since the Injunction was issued. They have expressed an intent to enforce the Ordinance against those who engage in sidewalk counseling within the buffer zone. Plaintiffs refrain
from sidewalk counseling within the demarcated buffer zone for fear of being subjected to penalties of monetary fines and, if violations are repeated, incarceration. See Pittsburgh, Pa., Code tit. 6, § 623.05 (indicating the penalties imposed for violations of the Ordinance).
Defendants have not stated whether they intend to enforce the Ordinance as against agents or employees of the downtown Planned Parenthood and, if they do so intend, what agent or employee actions might constitute a violation of the Ordinance. Plaintiffs accuse Planned Parenthood escorts of congregating and demonstrating within the buffer zone, in violation of the Ordinance. On one occasion, Plaintiff Laslow witnessed an escort stand inside the buffer zone and speak to an anti-abortion advocate, located outside of the zone. She also witnessed escorts standing within the zone, speaking to one another. She does not report the contents of either communication. Ms. Laslow recounts that when she reported her observations to City of Pittsburgh Police Officer Viskovicz, he informed her that the Ordinance did not prohibit these actions, as the escorts are " exempt." Pl.'s Supp. Br. (Doc. 24), Ex. 1 (" Laslow Aff." ) at ¶ 8. There is no evidence that Officer Viskovicz made any inquiry into the substance or context of the escorts' statements or actions.
Ms. Harris has been the volunteer coordinator for clinic escorts at the downtown Planned Parenthood for approximately 17 years. She trains and supervises escorts, and volunteers as an escort herself. " A clinic escort is a volunteer who is trained to walk alongside patients and their companions who want to be accompanied as they approach or leave a health care facility." Def.'s Br. in Opp'n. (Doc. 13), Ex. 2 (" Harris Aff." ) at ¶ 2. The role of the clinic escort is not to prevent communication between patients and anti-abortion activists; it is to " provide a calming, peaceful, patient-focused presence and to ensure that protests do not endanger patients or impede women's access to medical care." Id. at ¶ 3. Ms. Harris " trains [the] escorts specifically to never engage in political proselytizing of any kind while in the buffer zone because [she] understand[s] that there is a Court order that prohibits that conduct." Id. at ¶ 5.
B. Procedural History
By way of background and procedural history, the Pittsburgh City Council enacted the Ordinance, supplementing the Pittsburgh Code of Ordinances, in December of 2005. Pittsburgh, Pa., Code tit. 6, § § 623.01-.07. In relevant part, the Ordinance set forth:
§ 623.03 -- EIGHT FOOT PERSONAL BUBBLE ZONE. No person shall knowingly approach another person within eight (8) feet 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 (100) feet 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 (15) feet 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.
Pittsburgh, Pa., Code tit. 6, § § 623.03-.04 " Hospital" is defined as:
An institution that:
(1) Offers services beyond those required for room, board, personal services and general nursing care; and,
(2) Offers facilities and beds for use beyond 24 hours by individuals requiring diagnosis, treatment, or care for illness, injury, deformity, infirmity, abnormality, disease, or pregnancy; and,
(3) Regularly makes available clinical laboratory services, diagnostic X-ray services, and treatment facilities for surgery or obstetrical treatment of similar extent. Hospitals may include offices for medical and dental personnel, central facilities such as pharmacies, medical laboratories and other related uses.
Ordinance § 623.02. " Health care facility," as referenced in section 623.04 of the Ordinance, is not defined therein.
Shortly after taking effect, the Ordinance was challenged as, inter alia, facially invalid under the First Amendment. Brown v. City of Pittsburgh, 543 F.Supp.2d 448 (W.D. Pa. 2008) (Fischer, J.). The district court denied the plaintiffs' Motion for a Preliminary Injunction and dismissed several counts of the complaint. Id. The plaintiffs appealed, and the Court of Appeals for the Third Circuit affirmed in part, reversed in part, and dismissed in part. Brown v. City of Pittsburgh, 586 F.3d 263 (3d Cir. 2009). Relevant to the instant motion, the Third Circuit reached the merits of the facial challenge to the Ordinance. It held that the eight foot bubble zone (the " bubble zone" ) and the fifteen foot buffer zone (the " buffer zone" ) each individually passed constitutional muster, but when considered in combination, imposed a facially unconstitutional burden on free speech. Id. The Court of Appeals remanded the case back to district court for further proceedings. Id.
Post-remand, the district court ordered that the bubble zone provision at section 623.03 be " permanently enjoined in toto." Inj. at ¶ 1. Section 623.04, creating the fixed buffer zone, remained, although the Injunction required that the buffer zone provision be construed to prohibit " all persons" from picketing and demonstrating within the boundaries of the buffer zone. Id. at ¶ 2; see Brown, 586 F.3d at 275 (" We find § 623.04 amenable to the content-neutral construction urged by the City, that is, an interpretation prohibiting even the exempted classes of persons from 'picketing or demonstrating' within the buffer zone." ) (internal alterations omitted). Accordingly, the exemption for " 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" does not permit those persons to engage in " any action, activity or signage in the form of picketing or demonstrating." Inj. at ¶ 2. Rather, it creates an exemption from the ban on congregating and patrolling, but only for emergency personnel " in the course of their official business" and agents/employees of hospitals and health care facilities, insofar as they are engaged in " assisting patients and other persons to enter or exit" the relevant facility. This exemption is a narrow one; health care facility or hospital employees may not congregate or patrol within the zones unrelated to assisting individuals with facility ingress and egress. The Injunction further requires that the City provide Pittsburgh City Police with oral and written
training materials regarding enforcement of the Ordinance. Id. at ¶ 3.
On June 26, 2014, the Supreme Court issued its decision in McCullen v. Coakley, striking down the amended Massachusetts Reproductive Health Care Facilities Act (the " MRHCA" ) as insufficiently narrowly tailored to achieve the Commonwealth's legitimate government interests. 134 S.Ct. 2518, 189 L.Ed.2d 502 (2014). The MRHCA as amended " ma[de] it a crime to knowingly stand on a " public way or sidewalk' within 35 feet of an entrance or driveway to any " reproductive health care facility,' defined as 'a place, other than within or upon the grounds of a hospital, where abortions are offered or performed." Id. at 2522. On September 4, 2014, Plaintiffs filed a complaint (the " Complaint" ) lodging a facial and as applied challenge to the Case 2:14-cv-01197-CB Document Ordinance, in light of McCullen. Compl. at ¶ 1 (Doc. 1). On September 5, 2014, Plaintiffs moved the Court to issue a preliminary injunction " to restrain Defendants, and all persons acting at their command or direction, from enforcing Pittsburgh Code of Ordinance [ sic ] § 623.01 et. seq. because it is unconstitutional on its face and as applied to Plaintiffs' and others' expressive activities." Pl.'s Mot. for Prelim. Inj.
C. Conclusions of Law
1. Motion for Preliminary ...