824 F.3d 353 (3rd Cir. 2016), 15-1755, Bruni v. City of Pittsburgh

Docket Nº:15-1755
Citation:824 F.3d 353
Opinion Judge:JORDAN, Circuit Judge.
Party Name:NIKKI BRUNI; JULIE COSENTINO; CYNTHIA RINALDI; KATHLEEN LASLOW; PATRICK MALLEY, Appellants v. CITY OF PITTSBURGH; PITTSBURGH CITY COUNCIL; MAYOR OF PITTSBURGH
Attorney:For Appellants: Matthew S. Bowman [ARGUED], Alliance Defending Freedom, Washington, DC; David A. Cortman, Alliance Defense Fund, Lawrenceville, GA; Elissa M. Graves, Alliance Defending Freedom, Scottsdale, AZ; Lawrence G. Paladin, Jr., Pittsburgh, PA. For Appellees: Michael E. Kennedy, Matthew S....
Judge Panel:Before: FUENTES, JORDAN, and VANASKIE, Circuit Judges. FUENTES, Circuit Judge, concurring in the judgment.
Case Date:June 01, 2016
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
SUMMARY

A 2005 Pittsburgh ordinance states that: [n]o person or persons shall knowingly congregate, patrol, picket or demonstrate in a zone extending fifteen (15) feet from any entrance to the hospital and or health care facility," with exceptions for safety personnel and those assisting patients and others. A preamble states: “The exercise of a person’s right to protest or counsel against certain... (see full summary)

 
FREE EXCERPT

Page 353

824 F.3d 353 (3rd Cir. 2016)

NIKKI BRUNI; JULIE COSENTINO; CYNTHIA RINALDI; KATHLEEN LASLOW; PATRICK MALLEY, Appellants

v.

CITY OF PITTSBURGH; PITTSBURGH CITY COUNCIL; MAYOR OF PITTSBURGH

No. 15-1755

United States Court of Appeals, Third Circuit

June 1, 2016

Argued November 6, 2015

Page 354

[Copyrighted Material Omitted]

Page 355

On Appeal from the United States District Court for the Western District of Pennsylvania. (D.C. No. 2-14-cv-1197). District Judge: Hon. Cathy Bissoon.

For Appellants: Matthew S. Bowman [ARGUED], Alliance Defending Freedom, Washington, DC; David A. Cortman, Alliance Defense Fund, Lawrenceville, GA; Elissa M. Graves, Alliance Defending Freedom, Scottsdale, AZ; Lawrence G. Paladin, Jr., Pittsburgh, PA.

For Appellees: Michael E. Kennedy, Matthew S. McHale [ARGUED], Lourdes Sanchez Ridge, City of Pittsburgh, Department of Law, Pittsburgh, PA.

For Amicus Curiae: Erek L. Barron, Whiteford Taylor & Preston, Bethesda, MD.

Before: FUENTES, JORDAN, and VANASKIE, Circuit Judges.

OPINION

Page 356

JORDAN, Circuit Judge.

This case puts at issue again an ordinance of the City of Pittsburgh that prohibits certain speech within fifteen feet of health care facilities. Plaintiffs Nikki Bruni, Julie Cosentino, Cynthia Rinaldi, Kathleen Laslow, and Patrick Malley engage in what they call " sidewalk counseling" on the public sidewalk outside of a Pittsburgh Planned Parenthood facility in an effort, through close conversation, to persuade women to forego abortion services. The Plaintiffs filed suit in the United States District Court for the Western District of Pennsylvania, claiming that the Pittsburgh ordinance limiting their ability to approach people near the Planned Parenthood entrance violates their First and Fourteenth Amendments rights. We previously upheld the City's so-called " buffer zone" ordinance against the same kind of challenge in Brown v. City of Pittsburgh, 586 F.3d 263 (3d Cir. 2009). Despite that, the Plaintiffs argue that the Supreme Court's recent decision in McCullen v. Coakley, 134 S.Ct. 2518, 189 L.Ed.2d 502 (2014) -- which struck down a similar Massachusetts state law -- has sufficiently altered the constitutional analysis to compel a different result than we reached in Brown. The District Court disagreed, hewing to our analysis in Brown and thus largely dismissing the Plaintiffs' constitutional challenge to the Ordinance.1

Page 357

We will vacate in part and affirm in part. Considered in the light most favorable to the Plaintiffs, the First Amendment claims are sufficient to go forward at this stage of the litigation. The speech at issue is core political speech entitled to the maximum protection afforded by the First Amendment, and the City cannot burden it without first trying, or at least demonstrating that it has seriously considered, substantially less restrictive alternatives that would achieve the City's legitimate, substantial, and content-neutral interests. McCullen teaches that the constitutionality of buffer zone laws turns on the factual circumstances giving rise to the law in each individual case -- the same type of buffer zone may be upheld on one record where it might be struck down on another. Hence, dismissal of claims challenging ordinances like the one at issue here will rarely, if ever, be appropriate at the pleading stage. Instead, factual development will likely be indispensable to the assessment of whether an ordinance is constitutionally permissible. We express no view on the ultimate merits of the Plaintiffs' claims in this case, but, following the guidance of McCullen, we will vacate the dismissal of the First Amendment claims so that they may be considered after appropriate development of a factual record. Because the First Amendment claims cover all of the Plaintiffs' contentions, and the Fourteenth Amendment claim is simply a recasting of free expression arguments, we will affirm the dismissal of that claim.

I.

Background2

A. The Ordinance

On December 13, 2005, Pittsburgh's City Council adopted Ordinance No. 49, which added Chapter 623 to the Pittsburgh Code of Ordinances. That Chapter, titled " Public Safety at Health Care Facilities," went into effect later in the month.

The part of the Ordinance that is now in dispute is § 623.04, which establishes a " Fifteen-Foot Buffer Zone." It states that: [n]o person or persons shall knowingly congregate, patrol, picket or demonstrate in a zone extending fifteen (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.

Pittsburgh Pa., Code § 623.04. Although the term " health care facility" is not defined in the Chapter, a " [m]edical office/clinic" is defined as " an establishment providing therapeutic, preventative, corrective, healing and health-building treatment services on an out-patient basis by physicians, dentists and other practitioners." Id. § 623.02.

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

Page 358 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 (2) 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 of 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.

Id. § 623.01. Violations of the Ordinance are met with graduated penalties, ranging from a $50 fine for a first offense to a thirty-day maximum (and three-day minimum) jail sentence for a fourth violation within five years. Id. § 623.05. As originally passed, the Ordinance also included an eight-foot " floating bubble zone," which established a 100-foot area around clinics in which people could not be approached without their consent within eight feet " for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education or counseling." Id. § 623.03.

The Ordinance was challenged in court shortly after its passage. In Brown v. City of Pittsburgh, we held that, although the fifteen-foot fixed buffer zone and the eight-foot floating bubble zone were each on their own constitutionally permissible, the combination of the two imposed a facially-unconstitutional burden on free speech. 586 F.3d at 276, 281. On remand, the District Court issued an order permanently enjoining enforcement of the eight-foot floating bubble zone. Importantly for present purposes, the order also required that the fifteen-foot buffer zone be construed to prohibit " any person" from " picket[ing] or demonstrat[ing]" within the fixed buffer zone.3 (App. at 150a.) The Plaintiffs challenge the constitutionality of the law as modified by the permanent injunction.

B. Application of the Ordinance

Although the Ordinance applies, on its face, at all hospitals and health care facilities in Pittsburgh, the City has demarcated only two actual buffer zones, both outside the entrances of facilities that provide abortion services. The allegations in the...

To continue reading

FREE SIGN UP