Bruni v. City of Pittsburgh, Civil Action No. 14–1197

283 F.Supp.3d 357

Nikki BRUNI, et al., Plaintiffs,

v.CITY OF PITTSBURGH, et al., Defendants.

Civil Action No. 14–1197

United States District Court, W.D. Pennsylvania.

Signed November 16, 2017

Kevin H. Theriot, Alliance Defending Freedom, Elissa Graves, Scottsdale, AZ, Lawrence Paladin, Jr., Paladin Law Offices, Pittsburgh, PA, Todd C. Zubler, Pro Hac Vice, William F. Osberghaus, Jr., Pro Hac Vice, Wilmer Cutler Pickering Hale and Dorr LLP, Steven H. Aden, Pro Hac Vice, Washington, DC, for Plaintiffs.

Michael E. Kennedy, Office of Attorney General, Kezia O. L. Taylor, Lourdes Sanchez Ridge, Matthew S. McHale, City of Pittsburgh Department of Law, Pittsburgh, PA, for Defendants.

MEMORANDUM AND ORDER

Cathy Bissoon, United States District Judge

I. MEMORANDUM

Pending before the Court are Plaintiffs' Motion for Summary Judgment (Doc. 68) and Defendants' Motion for Summary Judgment (Doc. 69). Upon full consideration of the evidence presented, Plaintiffs' Motion for Summary Judgment will be denied, and Defendants' Motion for Summary Judgment will be granted.

A. Factual Background

1. The Ordinance

In December 2005, the Pittsburgh City Council adopted Ordinance No. 49, Bill No. 2005–1944, supplementing the Pittsburgh Code of Ordinances, Title 6: Conduct, Article I: Regulated Rights and Actions, by adding Chapter 623, entitled "Public Safety at Health Care Facilities." Pittsburgh Code of Ordinances § 623.01 et seq. , (the "Ordinance"). Plaintiffs' Concise Statement of Material Facts (Doc. 74) ¶ 1; Defendants' Response to Plaintiffs' Concise Statement of Material Facts (Doc. 82) ¶ 1. The Ordinance became effective on December 30, 2005. Doc. 74 ¶ 1; Doc. 82 ¶ 1.

In relevant part, the challenged Ordinance provides as follows:

§ 623.04 FIFTEEN–FOOT BUFFER ZONE

No person or persons shall knowingly congregate, patrol, picket, or demonstrate in a zone extending 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.

Doc. 74 ¶¶ 2, 140; Doc. 82 ¶¶ 2, 140. The Ordinance exempts "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" from the entirety of Section 623.04. Doc. 74 ¶ 141; Doc. 82 ¶ 141.

In adopting the Ordinance, the City Council also ratified a preamble, titled "Intent of Council," that described the goals the City sought to accomplish as follows:

The City Council recognizes that access to Health Care Facilities for the purpose of obtaining medical counseling and treatment is important for residents and visitors to the City. The exercise of a person's right to protest or counsel against certain medical procedures is a First Amendment activity that must be balanced against another person's right to obtain medical counseling and treatment in an unobstructed manner; and The City of Pittsburgh Bureau of Police has been consistently called upon in at least two locations within the City to mediate the disputes between those seeking medical counseling and treatment and those who would counsel against their actions so as to (i) avoid violent confrontations which would lead to criminal charges and (ii) enforce existing City Ordinances which regulate use of public sidewalks and other conduct; Such services require a dedicated and indefinite appropriation of policing services, which is being provided to the neglect of the law enforcement needs of the Zones in which these facilities exist. The City seeks a more efficient and wider deployment of its services which will help also reduce the risk of violence and provide unobstructed access to health care facilities by setting clear guidelines for activity in the immediate vicinity of the entrances to health care facilities; The Council finds that the limited buffer and bubble zones outside health care facilities established by this chapter will ensure 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.

Doc. 74 ¶ 7; Doc. 82 ¶ 7.

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"), Civil Action No. 06–393, 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. Doc. 74 ¶ 149; Doc. 82 ¶ 149. 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"). Doc. 74 ¶¶ 111, 122; Doc. 82 ¶¶ 111, 122. The inside of the yellow arc measures 15 feet in radius from the center of the closed front doors of the Planned Parenthood facility. Doc. 74 ¶ 123; Doc. 82 ¶ 123.

According to the City, the Ordinance "applies to any type of protesting within the buffer zone." Doc. 74 ¶ 155; Doc. 82 ¶ 155. However, "purely social or random conversations (like going up to someone to ask directions or what time it is) are not intended to be covered by the Ordinance." Doc. 74 ¶ 156; Doc. 82 ¶ 156. When Plaintiffs filed this lawsuit, they believed that the Ordinance completely prohibited their passage through the buffer zone, even if they were not engaging in sidewalk advocacy during such passage. Defendants' Concise Statement of Material Facts (Doc. 71) ¶ 86; Plaintiffs' Response to Defendants' Concise Statement of Material Facts (Doc. 79) ¶ 86. However, since then, the City has explained to Plaintiffs that the buffer zone does not apply to "individuals who are simply walking through the 15 foot zone to get to from one location to another, provided that such passage does not obstruct access to the facility." Doc. 74 ¶ 87; Doc. 82 ¶ 87; Doc. 74 ¶ 154; Doc. 82 ¶ 154. For purposes of this lawsuit, there appears to be no dispute that "sidewalk counseling" within the 15 foot buffer zone is prohibited.

2. History of the Ordinance

Prior to moving to 933 Liberty Avenue, Planned Parenthood maintained its downtown location on Fifth Avenue. Doc. 74 ¶ 112; Doc. 82 ¶ 112. In the mid- and late–1990's, there were numerous incidents involving violence, disruption and obstruction of entrances at the Fifth Avenue location. Doc. 71 ¶ 1; Doc. 79 ¶ 1. As a result, in the mid–90's, Pittsburgh police deployed crowd-control barriers outside abortion clinics in order to maintain order and security, separating demonstrators from each other and from patients attempting to visit the clinic for health care. Doc. 71 ¶ 4; Doc. 79 ¶ 4. After Planned Parenthood moved to the 933 Liberty Avenue location in 2002, the incidents became less frequent and severe; however, there still were regular incidents involving "pushing," "shoving" and "verbal harassment" at the downtown Planned Parenthood. See Def. App., Ex. J, Hohos Dep. (Doc. 72–10) at 31:23–32:12 ("New location was, like I said, not as severe, but we still had our incidents. We still had the pushing and the shoving between the escorts and the pro-life folks and, you know, the blocking of the doors, that was still occurring when people would sit in front of doors. Not on a much regular basis as before, but that—that conduct still continued to a large—to a large degree. A lot of it was verbal. Depending on which side the argument you were on or the cause, a lot of it was verbal harassment between both parties, both sides."); id. at 42:2–5 (Sergeant William Hohos explaining that he has personally witnessed "pro-life individuals forcing literature into patients' pockets"); id. at 52:13–15 ("We were still very active between the years of 2002 to 2005. ‘We’ being the police."). To mitigate these incidents, the Bureau of Police employed an overtime detail of police officers stationed outside the downtown Planned Parenthood. Doc. 71 ¶ 6; Doc. 79 ¶ 6.

On December 29, 2003, the City of Pittsburgh was declared a financially distressed municipality by the Commonwealth of Pennsylvania's Department of Community and Economic Development. Doc. 71 ¶ 14; Doc. 79 ¶ 14. Following the determination of the City's distressed status, the Bureau of Police discontinued the overtime detail of police officers assigned to the downtown Planned Parenthood, although police would still respond to 911 or other specific calls for law enforcement. Doc. 71 ¶ 19; Doc. 79 ¶ 19. Thereafter, on November 29, 2005, the Ordinance was introduced before the City Council. Doc. 74 ¶ 126; Doc. 82 ¶ 126. A committee meeting was held on December 7, 2005, followed by hearing for public comment on December 13, 2005.

Doc. 74 ¶¶ 126–128; Doc. 82 ¶¶ 126–128; Doc. 71 ¶ 23; Doc. 79 ¶ 23. At those proceedings, dozens of witnesses offered statements to the City Council, including President and CEO of Planned Parenthood of Western Pennsylvania, Kimberly Evert. Doc. 71 ¶ 24; Doc. 79 ¶ 24. Ms. Evert testified that, in January 2005, the City's budget problems "resulted in the elimination of the police assignment" to the downtown Planned Parenthood. Doc. 72–3, Exhibit C, at p. 8. Ms. Evert testified that "without [police] supervision there has been an increase in unlawful behavior that is putting ... patients, their families, pedestrians and even protestors at risk." Id. As evidence, Ms. Evert stated that, in 2004, patients made 16 complaints about protestors, whereas from February 2005 to November 2005, "there were 13 cases of aggressive pushing,...