Diener v. Reed

232 F.Supp.2d 362

Mark A. DIENER, Stephen Garisto, Jim Grove, Pearl Grove, Jeff Mayon, Lee Smith, Jason Storms, Sheri Sucec, and John K. Young, Plaintiffs, v. Stephen R. REED, in his official capacity as Mayor of the City of Harrisburg, Defendant.

Civil Action No. 1:CV-02-0977.

United States District Court, M.D. Pennsylvania.

December 2, 2002.

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Leonard G. Brown, Randall L. Wenger, Clymer & Musser, P.C., Lancaster, PA, for Plaintiffs.

Frank J. Lavery, Jr., Lavery, Faherty, Young & Patterson, P.C., Harrisburg, PA, for Defendant.

MEMORANDUM

CALDWELL, District Judge.

I. Introduction.

We are considering Plaintiffs' request for permanent injunctive relief. Plaintiffs, a group of street preachers and protesters, were either arrested or threatened with arrest at events in the City of Harrisburg, Pennsylvania, mostly on charges of disorderly conduct. They filed a complaint pursuant to 42 U.S.C. § 1983, asserting that their First Amendment rights had been violated. They named as defendant, Stephen R. Reed, the Mayor of Harrisburg, in his official capacity. The complaint seeks injunctive and declaratory relief and nominal and compensatory damages.

The complaint's First Amendment claims can be broken down into two groups. One group alleges that the Harrisburg police department applies Pennsylvania's disorderly conduct statute to Plaintiffs as a way of suppressing their First Amendment activities. The second group alleges facial and as-applied challenges to the permit system governing the use of city parkland for First Amendment activities as well as for group recreational and other purposes.

The part of the case challenging the permit system is somewhat unusual. Plaintiffs themselves have never applied for a permit to use city parkland, and apparently limit their own First Amendment activity to protesting and preaching at events the city has permitted others to hold. In spite of this, they make First Amendment arguments against the permit system that would be expected to be made by those whose group activity would be subject to the law. Nonetheless, under First Amendment standing law, they are entitled to present these arguments.

The complaint was accompanied by a motion for a temporary restraining order (TRO). On July 26, 2002, upon agreement of the parties, a TRO was entered.¹ On August 15, 2002, a hearing was held on Plaintiff's motion for a preliminary injunction. Following the hearing, the parties agreed that a decision on the merits of a permanent injunction could be made based on the evidence produced at the hearing.²

II. Background

A. The Harrisburg Permit System Governing Use of Public Parkland.

Harrisburg has a permit system for the use of city parkland that broadly covers uses for recreational, political or other purposes, codified in nine sections of the City of Harrisburg Codified Ordinances at Chapter 10-301, located in §§ 10-301.20 through 10-301.26 and §§ 10-301.29 and 10-301.30, as amended by Ordinance No. 14-2001, signed into law on October 24, 2001. Plaintiffs challenge five of these sections. We set forth the provisions of the challenged sections as follows.

Under section 10-301.21, a person must apply to the city's Director of the Department of Parks and Recreation (the "Park Director" or "Director") for a permit. Under section 10-301.20(A)(1), groups of twenty or more persons intending to use parkland for public speeches or other purposes must obtain a permit.³ Under section 10-301.23(A)(1), a somewhat overlapping provision, any person or group of persons (regardless of the group's size) intending to distribute literature or make public speeches in city parks must obtain a permit.⁴

For a permit application under section 10-301.20(A)(1), the Park Director must decide within three business days whether to grant or deny it. See § 10-301.20(A)(2). If the Director decides to grant the permit, she is authorized to include "such reasonable conditions as [she] deem[s] appropriate ...." If she denies it, she must state in writing the reasons for the denial. Id.

For a permit application under section 10-301.23(A)(1), the Park Director must generally decide within twenty-four hours of the application whether to grant it. See § 10-301.23(A)(2). If the permit is granted, the Director is authorized to include "such reasonable conditions as [she] deem[s] appropriate ...." If it is denied, the Director must state the reasons for the denial. Id. For applications submitted under section 10-301.23(A)(1) before noon on Friday or before noon of a day preceding a holiday, the application will be acted on before the close of business that day. See § 10-301.23(A)(2).

Under either section, if the permit is denied, there is a right to appeal to the mayor within ten days, who must decide the appeal within five days. See §§ 10-301.20(A)(2) and 10-301.23(A)(2). If he does not act, "he is deemed to have sustained the appeal and the permit shall be issued." Id. The ordinance is silent about any right to judicial review of a mayoral denial of an appeal. The Park Director can revoke a permit for violation of a rule, ordinance, or "for good cause shown." See § 10-310.26.

Section 10-301.22 provides the standards for the Park Director's issuance of a permit under both section 10-301.20(A)(1) and section 10-301.23(A)(1). They are also the standards the Mayor is to use in deciding an appeal. See §§ 10-301.20(A)(2) and 10-301.23(A)(2). Under section 10-301.22(A):

The Director shall issue a permit hereunder after making the following findings:

(A) that the proposed activity or use of the park will not unreasonably interfere with or detract from the general public enjoyment of the park;

(B) that the proposed activity and use will not unreasonably interfere with or detract from the promotion of public health, welfare, safety and recreation;

(C) that the proposed activity or use is not specifically intended to result in violence, crime or disorderly conduct;

(D) that the proposed activity will not entail unusual, extraordinary or burdensome expense to the City;

(E) that the facilities desired have not been reserved for other use at the day and hour required in the application.

The city also controls the distribution of literature in certain areas of its parkland. Literature may not be distributed in any parkland, including Reservoir Park, River-front Park, Italian Lake, and City Island in "those areas for which permits have been previously issued for a private or public event." See section 10.301.29(A)(1), (B), (C), (D)(1). Literature may not be distributed in Reservoir Park, "in those areas occupied by the National Civil War Museum and the fields, lawns, and park areas adjacent to the Museum and under its control." See section 10.301.29(A)(2). Literature may not be distributed on City Island "in those areas occupied by leaseholders and park areas under leaseholders (sic) control." See section 10.301.29(D)(2). Otherwise, literature may be distributed in these and any other areas of the city parks. See section 10.301.29(E).

Section 10-301.30 also regulates leafleting. It provides that leafleteers: (1) shall not block the entrance or exit for any park or commercial business or any commercial activity; and (2) "shall stand on the grass off the walkways and shall keep moving when they are on the walkways so that they shall not block or otherwise impede public use and enjoyment of the walkways ...."⁵

At the injunction hearing, Tina Manoogian-King, the Park Director, testified about the city's administration of the permit system. The system provides orderly use of the parkland for the some two million people who use the parks annually. (Tr. 112).⁶ There are "`multiple activities' ... occurring ... almost simultaneously" and they are "coordinate[d] through the permit process." (Tr. 113). Permits are good for one day. (Tr. 116). The process ensures that permit holders can hold their events without disruption and for their exclusive use. (Tr. 135). As the Park Director testified, permits are even issued for weddings, and "[i]f you are holding a wedding, you don't necessarily want someone else to come in and disrupt your wedding." (Tr. 135). Permits are granted at the start of the calendar year, so a line appears at her office on January 2 for those wishing to secure a particular date, time and location; it is first come, first served. (Tr. 110-11).

Manoogian-King uses the criteria in section 10-301.22 in issuing permits. (Tr. 108-09). No other considerations or discretionary factors enter into the decision. (Tr. 110). She has denied permits in the past but only because the area sought had already been permitted to another group. (Tr. 110). She has never denied a permit on the basis of the type of group requesting it or the content of its message. (Tr. 122).

She issues between 500 and 700 permits a year. (Tr. 112). Some permits are for group events like the 2001 Gay Pride Festival (Tr. 117), but if a family wants to use a pavilion for a family event for twenty or more persons, they must apply for a permit. (Tr. 121). The application requests information so that the city can determine the group's need for sanitation, electricity, space, traffic control and law enforcement. (Tr. 117, 119, 120).

In addition to short-term park permits, the city leases areas in its parks under long-term leases for educational, recreational and historical purposes. One example is the National Civil War Museum, which the city built in Reservoir Park. The city has leased the museum and surrounding grounds for thirty years to a nonprofit corporation, called "The National Civil War Museum." (Defendant's exhibit 5; Tr. 154). Under the lease, the corporation controls the museum and grounds and operates the museum to preserve Civil War material, culture and sources of information to offer the general public educational exhibits and programs and to act as a source of...