Reilly v. City of Harrisburg

COLLEEN REILLY; BECKY BITER; ROSALIE GROSS v. CITY OF HARRISBURG; HARRISBURG CITY COUNSEL; MAYOR ERIC PAPENFUSE,in his official capacity as Mayor of Harrisburg Colleen Reilly; Becky Biter, Appellants

No. 18-2884

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Submitted: July 12, 2019

October 23, 2019

NOT PRECEDENTIAL

On Appeal from the District Court for the Middle District of Pennsylvania

(M.D. Pa. 1-16-cv-00510)

Honorable Sylvia H. Rambo, U.S. District Judge

Submitted Under Third Circuit L.A.R. 34.1(a)

July 12, 2019

Before: SHWARTZ, KRAUSE, and FUENTES, Circuit Judges

OPINION^*

KRAUSE, Circuit Judge.

Plaintiffs Colleen Reilly and Becky Biter appeal the District Court's denial of their motion for a preliminary injunction seeking to enjoin the enforcement of a Harrisburg ordinance that restricts certain types of expression within twenty feet of health care facilities on the ground that it violates the First Amendment. Consistent with our recent decision in Bruni v. City of Pittsburgh (Bruni II), No. 18-1084, slip op. (3d Cir. 2019), we will affirm.

I. Background¹

In November 2012, Harrisburg (the "City") adopted Ordinance No. 12-2012, codified as Harrisburg Code Chapter 3-371 (the "Ordinance"). It states, in relevant part:

No person or persons shall knowingly congregate, patrol, picket or demonstrate in a zone extending 20 feet from any portion of an entrance to, exit from, or driveway of a health care facility.

Harrisburg, Pa., Code § 3-371.4 (2012); JA 164. The city council also ratified a preamble that set forth "[f]indings" and the "purpose" of the Ordinance, which it articulated as "ensur[ing] that patients have unimpeded access to medical services while protecting theFirst Amendment rights of demonstrators to communicate their message." Harrisburg, Pa., Code § 3-371.2; JA 163-64. Harrisburg adopted the Ordinance following a city council hearing during which the council heard testimony about problems that were occurring outside of the city's two reproductive health facilities, including:

[T]respassing on private property, blocking the driveway entrance to [the] health care center, photographing or videotaping staff at close range, documenting license plate numbers of staff and patients . . . , yelling harassing and offensive words . . . including threat[s] . . . , following the staff to continue harassment . . . , pounding on the front window of the health center entrance to harass volunteers and those . . . seeking care, [and] standing on private property to photograph employees through office windows.

JA 132.

Plaintiffs attest that they wish to engage within the zone in "sidewalk counseling," which they define as "peaceful . . . one-on-one conversations . . . , prayer[,]" and leafletting through which they attempt to dissuade patients from obtaining an abortion.² JA 65. They contend that their "sidewalk counseling and leafletting approach can only be communicated through close, caring, and personal conversations," and the buffer zones created by the Ordinance significantly hinder their ability to effectively communicate their message. JA 78.

In March 2016, Plaintiffs filed a motion to preliminarily enjoin its enforcement on First Amendment grounds, which the District Court denied.³ See Reilly v. City of Harrisburg, 205 F. Supp. 3d 620, 625, 638-39 (M.D. Pa. 2016). We reversed and remanded, holding that the District Court had improperly applied the preliminary injunction standard by shifting the burden of demonstrating narrow tailoring to Plaintiffs; however, we did not address the merits of Plaintiffs' constitutional challenge. Reilly v. City of Harrisburg, 858 F.3d 173, 176-80 (3d Cir. 2017) (Reilly I).

On remand, the District Court held an evidentiary hearing on Plaintiffs' preliminary injunction motion. Reilly v. City of Harrisburg, 336 F. Supp. 3d 451, 456 (M.D. Pa. 2018). The Court received numerous pieces of documentary evidence and heard substantial testimony about the history of the Ordinance and Harrisburg's financial difficulties at the time of the Ordinance's adoption, among other topics. See id. Based on this new evidence and considering the standard for a preliminary injunction as clarified in Reilly I, the District Court again denied Plaintiffs' motion. Id. at 474. In doing so, the Court concluded that the Ordinance permitted sidewalk counseling. Id. at 459 n.3, 463-64. This appeal followed.

II. Discussion⁴

Plaintiffs seek to preliminarily enjoin enforcement of the Ordinance. To obtain a preliminary injunction, an "extraordinary remedy," Doe ex rel. v. Boyertown Area Sch. Dist., 897 F.3d 518, 526 (3d Cir. 2018) (citation omitted), the moving party must show "(1) a reasonable probability of eventual success in the litigation, and (2) that it will be irreparably injured . . . if relief is not granted," Reilly I, 858 F.3d at 176 (alteration in original) (citation omitted). If these two "threshold" factors are met, a court then considers the remaining two factors—"(3) the possibility of harm to other interested persons from the grant or denial of the injunction, and (4) the public interest"—and determines, on balance, whether to grant the requested preliminary relief. Id. (citation omitted).

At issue here is the first factor: whether Plaintiffs have a sufficient likelihood of succeeding on the merits of their constitutional challenge to the Ordinance.⁵ In support of their contention that the Ordinance violates their First Amendment rights, Plaintiffsmake four arguments: (1) "[t]he District Court erred when it sua sponte rewrote the Ordinance to permit sidewalk counseling" to save it from constitutional infirmity, Appellants' Br. 23; (2) the Ordinance is unconstitutionally vague and overbroad; (3) the Ordinance is content based and subject to strict scrutiny; and (4) even if it is considered content neutral, the Ordinance is not narrowly tailored and thus does not survive intermediate scrutiny.⁶ As many of Plaintiffs' arguments are foreclosed by our recent decision in Bruni II, we begin there and then address Plaintiffs' arguments in turn.

A. Our Decision in Bruni II

In Bruni II, individuals who identified as sidewalk counselors challenged an almost identical ordinance that created a fifteen-foot buffer zone outside the entrance of any hospital or healthcare facility in the city of Pittsburgh. Bruni II, slip op. at 5, 9. As here, the ordinance stated that "[n]o person or persons shall knowingly congregate, patrol, picket or demonstrate" in the proscribed zone, id. at 9 (quoting Pittsburgh, Pa., Code § 623.04 (2005)), and, although the plaintiffs' sidewalk counseling consisted only of peaceful one-on-one conversations and leafletting, the city of Pittsburgh interpreted the ordinance to prohibit the plaintiffs' actions, Bruni II, slip op. at 12.

Looking at the plain meaning of the ordinance's language, we concluded that the proscribed activities—congregating, patrolling, picketing, and demonstrating—did not encompass the sidewalk counseling in which the plaintiffs engaged. Id. at 24-26. As such, we found the ordinance "readily susceptible" to a narrowing construction under the doctrine of constitutional avoidance. Id. at 21 (quoting Virginia v. Am. Booksellers Ass'n, 484 U.S. 383, 397 (1988)); id. at 24-26. In the absence of a state court's interpretation to the contrary, we therefore construed the ordinance narrowly not to prohibit sidewalk counseling within the zone. Id. at 22 n.14, 27.

With the ordinance so interpreted, we rejected the plaintiffs' argument that the ordinance was content based. Id. at 28. Because the ordinance did not prohibit sidewalk counseling—or any other peaceful one-on-one conversations on any topic or for any purpose—we concluded that it neither regulated speech based on subject matter, function, or purpose, nor required law enforcement to examine the content of the speech to determine if a violation had occurred. Id. at 26-28. Indeed, we said, the Supreme Court"has repeatedly considered regulation of [the proscribed] activities to be based on the manner in which expressive activity occurs, not its content, and held such regulation content neutral." Id. at 26 (citing Madsen v. Women's Health Ctr., Inc., 512 U.S. 753, 763-64 (1994); Snyder v. Phelps, 562 U.S. 443, 456 (2011); Hill v. Colorado, 530 U.S. 703, 721 (2000); Schenck v. Pro-Choice Network of W. N.Y., 519 U.S. 357, 383-85 (1997); United States v. Grace, 461 U.S. 171, 181-82 (1983)). Therefore, we concluded the ordinance was content neutral and subject to intermediate scrutiny. Bruni II, slip op. at 28.

Applying intermediate scrutiny, the ordinance, as properly interpreted to exclude sidewalk counseling, passed muster. Focusing on the "narrow tailoring" prong, we concluded that the ordinance did not "burden substantially more speech than" was "necessary to further the government's legitimate interests" in protecting access to pregnancy-related services, ensuring public safety, and eliminating neglect of law enforcement needs. Id. at 30 (quoting McCullen v. Coakley, 573 U.S. 464, 486 (2014)). Specifically, we explained that where a restriction imposes a significant burden on speech, the government must show that it tried or "seriously considered[] substantially less restrictive alternatives," such as arrests or targeted injunctions. Bruni II, slip op. at 31. But where the burden on speech is not significant, "a less demanding inquiry is called for." Id. Because the ordinance was limited in scope and size, we concluded that the burden on speech was not significant. Id. at 32-33. And because Pittsburgh had "attempt[ed] or consider[ed] some less burdensome alternatives," such as the use of an overtime police detail and enforcement of existing criminal laws, "and conclud[ed] theywere unsuccessful in meeting the legitimate interests at issue," the city had satisfied its corresponding burden. Id. at 34 (citations omitted). We therefore held that the ordinance was narrowly tailored and survived intermediate scrutiny. Id. at...