Clift v. City of Burlington

AGNES CLIFT, AMY COCHRAN, MOLLY JESSE, JEAN OSBORNE,RITA MANTONE, and BRIDGET MOUNT, Plaintiffs,

v.City of Burlington, Vermont, Defendant.

Case no. 2:12-cv-214

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF VERMONT

Dated: February 15, 2013

Memorandum Opinion and Order

Six Vermont residents, Agnes Clift, Amy Cochran, Molly Jesse, Rita Mantone, Bridget Mount, and Jean Osborne (the "Plaintiffs") have brought facial and as-applied challenges to the constitutionality of Burlington Code § 21-113(2) (the "Ordinance") under 42 U.S.C. § 1983. The Ordinance creates a fixed buffer zone extending 35 feet from the premises of a reproductive health care facility ("RHCF") within which individuals may not "knowingly congregate, patrol, picket or demonstrate" unless they fall within one of five exemptions. The Plaintiffs claim that the Ordinance violates their First and Fourteenth Amendment rights because it discriminates on the basis of content and viewpoint; because it is an invalid time, place, and manner restriction; because it is substantiallyoverbroad; and because it is unconstitutionally vague. Compl. ¶¶ 142-97, ECF No. 1.

Before the Court are two motions. For the reasons stated below, the Court grants the City's Motion to Dismiss the facial challenges to the Ordinance, ECF No. 13, and denies Plaintiffs' Motion for a Preliminary Injunction, ECF No. 8.

BACKGROUND

I. The Ordinance

On July 16, 2012, the Burlington City Council (the "Council") amended the City's Code of Ordinances by adopting a new article, Article IX, Health Center Buffer Zones. Burlington City Ordinance ("BCO") § 21-111 et seq. Article IX consists of five sections.

Section 21-111 lists the Council's findings. The Council recognized the need to balance individuals' First Amendment "right to speak for or against certain medical procedures" with other individuals' "right to obtain medical counseling and treatment in an unobstructed manner." BCO § 21-111. The Council explained that in adopting the Ordinance, its intention was

to ensure public safety and order, regulate the use of public sidewalks and other conduct, promote the free flow of traffic on streets and sidewalks, reduce disputes and confrontations requiring law enforcement services, protect property rights, protect First Amendment freedoms of speech and expression and secure a person's right to seek reproductive health care services.

Id. And the Council concluded that the limited buffer zone established by the Article was "necessary to ensure that patients have unimpeded access to reproductive health care services while also ensuring that the First Amendment rights of people to communicate their message to their intended audience is not unduly restricted or overburdened." Id.

Section 21-112 defines several terms used throughout Article IX:

(1) Reproductive Health Care Facilities shall mean any building, structure or place, or any portion thereof, at which licensed, certified, or otherwise legally authorized persons provide health care services or health care counseling relating to the human reproductive system.

(2) Buffer Zone means an area of protection surrounding the premises of a Reproductive Health Care Facility that has a thirty-five (35) foot radius extending in all directions.

(3) Premises of a Reproductive Health Care Facility shall mean the driveway, entrance, entryway, or exit of a Reproductive Health Care Facility and any parking lot in which the facility has an ownership, easement or leasehold interest or other property right.

(4) Person shall include, but is not limited to

1. Individuals;

2. Corporations;

3. Not-for profit organizations;

4. Partnerships;

5. Associations; and

6. Groups or other entities.

Id. at § 21-112.

Section 21-113 contains two separate provisions. Subsection (1), which is not challenged by Plaintiffs, prohibitsindividuals from knowingly obstructing, detaining, hindering, impeding or blocking another person from entering or exiting an RHCF. Subsection (1) does not apply to certain municipal agents such as firemen and utility workers nor to employees or agents of an RHCF acting within the scope of their employment. Subsection (2), the provision at issue in this suit, states that "[n]o person or persons shall knowingly congregate, patrol, picket or demonstrate in the Buffer Zone." Id. at § 21-113(2). Subsection (2) expressly exempts five categories of individuals from this general prohibition: (1) "persons entering or leaving [an RHCF]"; (2) "employees or agents of [an RHCF] acting within the scope of their employment"; (3) "law enforcement, ambulance, firefighting, construction, utilities, public works, and other municipal agents acting within the scope of their employment"; (4) "persons using the public sidewalk or street right-of-way adjacent to such facility solely for the purpose of reaching a destination other than such facility"; and (5) "any person or persons on private property having the consent of the property owner." Id.

Section 21-114 authorizes civil penalties ranging from fifty to five hundred dollars for violations of the Article.

Section 21-115 contains a severability clause.

II. Planned Parenthood

A. The Buffer Zone

The Plaintiffs allege that the Ordinance, which came into effect on August 15, 2012, has severely disrupted their ability to approach, counsel, and distribute information to individuals approaching Planned Parenthood's Burlington Health Center ("Planned Parenthood") at 183 St. Paul Street. St. Paul Street runs north to south and has two travelling lanes (one in each direction) and parking spaces on both shoulders. Traffic is intermittent, and noise levels vary throughout the day. On both sides of the street, there is a small strip of grass and a public sidewalk running parallel to the road. Planned Parenthood occupies a single building with a main entrance accessible from the sidewalk on the west side of the street. Planned Parenthood also leases several parking spaces for its clients in a privately-owned lot located directly south of the building, Compl. ¶¶ 37-40; however, the lot is not in use at the moment because an underground parking facility is under construction.¹ See Pls.' Exs. 12-14.

The layout of the buffer zone at Planned Parenthood is not disputed. It consists of two areas: a half-circle with a radius of 35 feet centered on the main entrance of the facility and aquasi-trapezoid² extending 35 feet to the north, south, and east of the lot. See Def. Ex. A. The two areas overlap, causing a continuous 228-foot stretch of sidewalk to fall within the buffer zone.³ Compl. ¶ 43. Because the west curb of St. Paul Street is 22 feet from the facility, the buffer zone extends as much as 13 feet into the street, just short of the lines that divide the travelling lanes.⁴ Id. at ¶¶ 38; Def. Ex. A.

B. Application of the Ordinance

The buffer zone at Planned Parenthood does not prevent individuals from congregating, patrolling, picketing, or demonstrating once they are 35 feet or more away from the main entrance and parking lot of the facility. In theory, this means a person could occupy any space along the edge of the buffer zone; however, because of where it falls in relation to St. Paul Street, individuals may congregate, patrol, picket, and demonstrate in three stretches by Planned Parenthood. First, they may stand south of the buffer zone on the same side of the street as the facility, a location that is 193 feet from the main entrance. The Plaintiffs seldom occupy this location. Second, they may stand north of the buffer zone, where they areroughly 35 feet from the main entrance. This location is directly in front of a hair salon, and although Plaintiffs occasionally stand there, they generally try to avoid it to accommodate the salon-owner's concerns that their activities would harm his business.⁵ Finally, the Plaintiffs may stand on the opposite side of St. Paul Street, across from Planned Parenthood's main entrance or parking lot. This has been the primary location of the Plaintiffs' activities since the Ordinance came into effect, and from that area, the Plaintiffs are at least 68 feet from the main entrance to Planned Parenthood. Compl. ¶ 46. After the Ordinance came into effect, the City marked off the last metered parking spot on the east side of St. Paul Street for Plaintiffs so that they would be more visible to persons entering or exiting Planned Parenthood. Id. ¶ 47.

Although the Plaintiffs are willing to share their views with passers-by and to provide information to individuals leaving the facility, their target audience is women who are entering Planned Parenthood to receive counseling or medical services. In the Plaintiffs' experience, close, personal contact with that audience is the most effective way to communicate their message. Though each of the Plaintiffsexpresses herself in a slightly different manner, they all agree that shouting from a distance is generally counter-productive. In an affidavit, Ms. Clift explained,

I have found that close personal communication, in a normal conversational voice level, with a kind, gentle voice, and with eye contact, using very few words-from a distance of six to ten feet-is the only way to effectively communicate with women at Planned Parenthood. I have found that eye contact and a smile are very important to get these women to be responsive. I often merely ask them if they would please take my brochure. My experience tells me that communicating in this manner is the best way to provide information and assistance to women seeking abortion.

Clift. Dec., ECF No. 8-10, ¶ 27.

The Plaintiffs claim that individuals entering the facility cannot hear them from any of the locations outside of the buffer zone unless they shout. The physical separation imposed by the buffer zone combined with ambient noise on the street from traffic or construction occasionally prevents them from being heard at all. The Plaintiffs' ability to distribute leaflets has also been significantly compromised. Many...