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Pomicter v. Luzerne County Convention Center Authority

United States District Court, M.D. Pennsylvania

May 22, 2018

SILVIE POMICTER and LAST CHANCE FOR ANIMALS Plaintiffs,
v.
LUZERNE COUNTY CONVENTION CENTER AUTHORITY and SMG Defendants.

          SUPPLEMENTAL MEMORANDUM OPINION

          ROBERT D. MARIANI, UNITED STATES DISTRICT JUDGE

         I. Introduction

         This action involves a First Amendment challenge to government restrictions on protesting activity in a non-public forum. On April 10, 2018, after a bench trial, this Court concluded that the Defendants' leafletting restriction, voice amplification ban, and profanity or vulgarity ban, as reflected in the Defendants' Protest Policy, violate First Amendment principles. Doc. 59 ("Bench Op."). Accordingly, the Court entered judgment in favor of Plaintiffs. Doc. 60. On May 2, 2018, Plaintiffs filed a motion for additional findings of fact and law and to amend the judgment under Federal Rules of Civil Procedure 52(b) and 59(e). Doc. 66. Plaintiffs motion seeks to amend the Court's April 10, 2018 Order to include additional findings of fact and law supporting Plaintiffs' right to not only leaflet outside designated barricaded areas, but also carry signs outside of those areas. The Court assumes the parties' familiarity with the facts of this case and its previous opinion. Thus, this memorandum will specifically address the issue of whether protestors carrying signs should be confined to designated barricaded areas at the Mohegan Sun Arena (the "Arena").

         II. Findings of Fact

         1. As the Court found in its previous opinion, Plaintiffs Sylvie Pomicter and Last Chance for Animals regularly protest outside businesses and venues to promote animal rights. Bench Op. ¶¶ 1-2 (citing Stipulated Facts for Trial ¶ 12, 16).

         2. The Court also found that the Arena is a stadium that is designated for public recreational use, and frequently hosts entertainment or sporting events, such as concerts, the Circus, sporting events, or other entertainment events. Id. ¶¶ 14-15 (citing Stipulated Facts for Trial ¶ 2 and April 25, 2016 Hr'g Tr. at 36:25-37:4).

         3. Patrons attending events at the Arena arrive primarily by car, and then proceed on foot to one of the two entrances known as the East and West Gates. Id. ¶ 16 (citing Ex. P-7 ¶ 5).

         4. The total square footage of the concrete in front of the East Gate is 18, 746 square feet. Id. ¶ 18 (citing Stipulated Facts for Trial ¶ 9).

         5. The total square footage of the concrete in front of the West Gate is 10, 560 square feet. Id. ¶ 19 (citing Stipulated Facts for Trial ¶ 10).

         6. A sidewalk connects the East and West gates and is approximately 30 feet wide and 321 feet long. Id. ¶ 22 (citing April 25, 2016 Hr'g Tr. at 35:2-12 and Ex. D-C).

         7. The sidewalk is generally open to the public, although it is primarily used for individuals attending events at the Arena or purchasing tickets to upcoming events. Id. ¶ 23 (citing April 25, 2016 Hr'g Tr. at 37:5-10).

         8. The Arena is large enough to hold up to 10, 000 people for an event. Id. ¶ 24 (citing April 25, 2016 Hr'g Tr. at 38:24-39:1).

         9. In March 2016, Defendants implemented the Revised Protest Policy to include two barricaded protest areas located along the edges of the East and West Gates. Id. ¶ 27 (citing April 25, 2016 Hr'g Tr. at 31:22-23; 32:1-21 and Ex. D-H). The protest areas would be able to be expanded depending on the number of protestors. Id.

         10. The Revised Protest Policy states "All persons are welcome to express their views at the Mohegan Sun Arena at Casey Plaza." Ex. D-H.

         11. The Revised Protest Policy further states that all protestors "are to be within the designated area outside [of] the East & West Gate, " and that "[h]andouts can only be distributed from within [the] designated area." Ex. D-H. It does not ...


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