634 F.3d 3 (1st Cir. 2011), 09-2273, Watchtower Bible and Tract Society of New York, Inc. v. Segardia De Jesus
|Citation:||634 F.3d 3|
|Opinion Judge:||BOUDIN, Circuit Judge.|
|Party Name:||WATCHTOWER BIBLE AND TRACT SOCIETY OF NEW YORK, INC.; Congregaci|
|Attorney:||Paul D. Polidoro, with whom Gregory Allen, Associate General Counsel, Legal Department, was on brief for appellants. Daniel M. Gossett, Mayer Brown LLP, Daniel Mach, ACLU Foundation, Program on Freedom of Religion and Belief, William Ramirez, American Civil Liberties Union, Puerto Rico National C...|
|Judge Panel:||Before BOUDIN, RIPPLE [*] and SELYA, Circuit Judges.|
|Case Date:||February 07, 2011|
|Court:||United States Courts of Appeals, Court of Appeals for the First Circuit|
Heard Sept. 15, 2010.
[Copyrighted Material Omitted]
To abate crime, Puerto Rico adopted a Controlled Access Law, P.R. Laws Ann. tit. 23, §§ 64-64h (2008), allowing local entities (called " urbanizations" ), organized by the community but approved by the municipality, to control street access to areas within towns that have voted in favor of such plans. Appellants are two corporations operated by the Governing Body of Jehovah's Witnesses 1 that challenged in federal district court both the statute and its application. Apart from default or consent judgments against some of the defendants, the district court denied relief. The background is as follows.
Jehovah's Witnesses accept a religious duty to share the Bible's message publicly and to proselytize from house to house. Watchtower Bible & Tract Soc'y of N.Y., Inc. v. Vill. of Stratton, 536 U.S. 150, 160-61, 122 S.Ct. 2080, 153 L.Ed.2d 205 (2002) (discussing Murdock v. Pennsylvania, 319 U.S. 105, 108, 63 S.Ct. 870, 87 L.Ed. 1292 (1943)). They engage in door-to-door ministry, communicate about the Bible with people on public streets, and offer religious literature to anyone interested in reading it. They say that their activities in Puerto Rico have been constrained by urbanizations acting pursuant to the Controlled Access Law that is the subject of this appeal.
The Controlled Access Law— adopted in 1987 and amended in 1988, 1992, 1997, and 1998— was prompted by and adopted against a background of endemic violent crime. Puerto Rico, with a median household income only about one-third of the U.S. national average and less than half of every other state, has a homicide rate quadruple the U.S. national rate and more than double that of virtually every state.2 It is a major drug transit point, and drug dealing has led in a number of cases to corruption among local police.3
The statute, as currently amended, authorizes municipalities to grant permits to neighborhood homeowners' associations called urbanizations to control vehicular and pedestrian access to the public residential streets within the urbanization (the term referring either to the association or to the controlled area). In such cases, the area is enclosed with fencing or other barriers and with one or more entry and exit gates for pedestrians and vehicles.
P.R. Laws Ann. tit. 23, § 64. Some of the gates are manned by security guards paid by the association; others are unmanned and opened by a key or by an electric signal operated by a buzzer linked to the residences within the urbanization.
In some respects, the controlled access regime is a counterpart to the private " gated" residential communities that have developed elsewhere; but in Puerto Rico the streets within the area were and remain public property, and the municipality is closely involved in authorizing the urbanization. To obtain a permit, the residential community must create a residents' association; propose a plan describing the permanent barriers and access arrangements; file a petition supported by at least three-quarters of the residential homeowners; and assume the costs of installing and operating the plan. P.R. Laws Ann. tit. 23, § 64a.
The statute has various provisions directed to assuring access, P.R. Laws Ann. tit. 23, §§ 64, 64c, 64g, but the most important provision here specifies that the controlled access plan " shall not prevent or hinder residents from outside the community to use and enjoy sports, recreational and other community installations, nor from obtaining the services of private institutions such as schools, churches, hospitals, civic clubs and others, located in the community," id. § 64b(e). Although the Commonwealth superintends the permit process,4 each municipality after a public hearing makes the decision whether to approve a permit application, id. § 64b.
The Puerto Rico Supreme Court has upheld the constitutionality of the Controlled Access Law, Asociación Pro Control de Acceso Calle Maracaibo, Inc. v. Cardona Rodriguez ( Maracaibo ), 144 D.P.R. 1 (1997), stressing that the enclosed areas remain public property, id. at 28-29, 32, and that " if any regulation approved by any [urbanization] violates constitutionally protected rights, the same will be considered null and void," id. at 27-28. Administration of an approved regime is left to the individual municipality and urbanization. Id. at 26.
Dozens of municipalities have issued permits to hundreds of urbanizations that encompass in total tens of thousands of residences. According to the Jehovah's Witnesses'...
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