Turco v. City of Englewood

Decision Date19 August 2019
Docket NumberNo. 17-3716,17-3716
Citation935 F.3d 155
Parties Jeryl TURCO v. CITY OF ENGLEWOOD, NEW JERSEY, Appellant
CourtU.S. Court of Appeals — Third Circuit

Donald A. Klein [Argued], Weiner Law Group, 629 Parsippany Road, P.O. Box 438, Parsippany, NJ 07054, Attorney for Appellant

Francis J. Manion [Argued], American Center for Law and Justice, 6375 New Hope Road, New Hope, KY 40052, Attorney for Appellee

Before: McKEE, VANASKIE* and SILER** , Circuit Judges.

OPINION OF THE COURT

McKEE, Circuit Judge.

The City of Englewood, New Jersey, appeals the District Court’s grant of summary judgment in favor of a plaintiff who claimed that an ordinance the City enacted to create a buffer zone around clinics where abortions are performed violated her freedom of speech, association, and assembly. Because we conclude that there are genuine issues of material fact precluding the entry of summary judgment to either side, we will reverse and remand for further proceedings.

I. BACKGROUND

In March 2014, the City Council of Englewood amended its ordinances to address aggressive antiabortion protests that had been regularly occurring outside of Metropolitan Medical Associates ("MMA" or "the clinic")—a health clinic that provided reproductive health services, including abortions, to women.1 We will discuss the incidents at MMA in more detail below, but at the outset, it is important to note that this dispute arises against a background that included "militant activists and aggressive protestors" beginning to gather outside of the facility in late 2013.2 Many of these protestors were associated with an evangelical ministry called the Bread of Life. The Bread of Life had ties to other radical antiabortion organizations including those which support violent reprisal against abortion providers. The Bread of Life protestors engaged in extremely aggressive, loud, intimidating, and harassing behavior towards patients, their companions, and even other groups whose views generally aligned with the Bread of Life’s antiabortion position.

The new ordinance read:

A. Definitions. As used in this section, the following terms shall have the meanings indicated:
1. "Health care facility" — as set forth in N.J.S.A. 26:2H 2.
2. "Transitional facility" — Community residences for the developmentally disabled and community shelters for victims of domestic violence as those terms are defined in N.J.S.A. 40:55D-66.2.
B. Within the City of Englewood, no person shall knowingly enter or remain on a public way or sidewalk adjacent to a health care facility or transitional facility within a radius of eight feet of any portion of an entrance, exit or driveway of such facility or within the area within a rectangle created by extending the outside boundaries of any entrance, exit or driveway of such facility in straight lines to the point where such lines intersect the sideline of the street in front of such entrance, exit or driveway. This subsection shall not apply to the following
1. persons entering or leaving such facility;
2. employees or agents of such facility 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; and
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
C. The provisions of subsection B shall only take effect during such facility’s business hours and if the area contained within the radius and rectangle described in said subsection B is clearly marked and posted.

The practical effect of the ordinance was the creation of three overlapping buffer zones at any qualifying facility. Two semicircular buffer zones extended outwards eight feet from either side of the facility’s entrance. The third buffer zone spanned the width of the facility’s entrance and extended to the street. A picture of the buffer zones (shown in yellow) is set forth below:

Prior to enacting the disputed ordinance, the City had increased police patrols on mornings when it anticipated Bread of Life protestors would be present.3 Police officers present on the scene imposed informal "no go zones" where protestors could not stand. Those zones were similar to the buffer zones that were part of the Ordinance. Although the police presence temporarily eased tensions at MMA, the hostile protests and resulting problems resumed immediately after officers left the clinic.

Plaintiff/Appellee Jeryl Turco was not one of the hostile or aggressive anti-abortion protestors. Rather, she refers to herself as a "sidewalk counselor." It is undisputed that, unlike the violent and aggressive anti-abortion protestors affiliated with groups such as Bread of Life, her practice was to calmly approach women entering the clinic and attempt to engage in peaceful, nonconfrontational communication. She believes that such conversational interaction is far more effective than the tactics favored by the aggressive protestors. In addition, Turco routinely offered rosaries and literature about prenatal care to patients entering the clinic. She also invited the women to accompany her to a crisis pregnancy center across the street, and often attempted to reassure the women by telling them things such as: "we can help you" and "we are praying for you."

Turco brought this action against the City of Englewood pursuant to 42 U.S.C. § 1983 to enjoin enforcement of the Ordinance because she believed that it hampered her efforts to provide counseling. She alleged that the Ordinance violated her First Amendment rights to freedom of speech, assembly, and association. She sought a declaration that the Ordinance was unconstitutional on its face and as applied and sought to enjoin its enforcement.

The District Court held the motion in abeyance until we decided Bruni v. Pittsburgh ,4 a case involving a similar ordinance in the City of Pittsburgh that was then pending in our court. After we decided Bruni , Turco elected not to renew her motion for a preliminary injunction, and the parties proceeded to discovery. Upon completion of discovery, the District Court granted Turco’s cross-motion for summary judgment.5

The District Court concluded that the statute was overbroad and not narrowly tailored to serve the government’s interest. In explaining why it believed the Ordinance was overbroad, the Court explained that the City "did not create a targeted statute to address the specific issue of congestion or militant and aggressive protestors outside of the Clinic."6 Rather, it found that the City had "created a sweeping regulation that burdens the free speech of individuals, not just in front of the Clinic, but at health care and transitional facilities citywide."7

Perhaps somewhat understandably, the District Court’s overbreadth analysis overlapped considerably with its narrow tailoring analysis.8 The District Court found that the statute was not narrowly tailored because the City failed to demonstrate that it had "employ[ed] alternative, less restrictive means" of addressing the hostile protestors on the clinic’s sidewalk.9 Instead, the Court found, the City had "put[ ] forth speculative assertions that it tried and/or seriously considered less restrictive alternatives, such as increased police presence [or] injunctive relief, prior to adoption of the amended Ordinance."10 Accordingly, the Court granted Turco’s motion for summary judgment, and this appeal followed.

II. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 28 U.S.C. § 1291. We review appeals from the grant of summary judgment de novo.11 We apply the same test as the district court: viewing the evidence in the light most favorable to the nonmoving party, we ask whether there is any genuine issue of material fact.12 "The mere existence of some evidence in support of the nonmovant is insufficient to deny a motion for summary judgment; enough evidence must exist to enable a jury to reasonably find for the nonmovant on the issue."13

III. DISCUSSION

We analyze § 1983 lawsuits that allege a First Amendment violation using a three-part test.14 First, we determine whether the First Amendment protects the speech at issue.15 Next, we consider the "nature of the forum."16 Finally, we resolve "whether the [government’s] justifications for exclusion from the relevant forum satisfy the requisite standard."17

Only the third prong of the test is at issue in this appeal. The City concedes that the First Amendment fully protects the speech at issue here and that the Ordinance clearly regulates speech in a traditional public forum (i.e., the sidewalk).18 The parties also agree—as do we—that the restrictions imposed are content-neutral because they regulate "the total quantity of speech by regulating the time, the place or the manner in which one can speak ...."19 The Ordinance impacts the speech of those who support abortion as well as those who oppose it; it is clearly content neutral.20 We therefore apply intermediate scrutiny.21 Accordingly, to withstand constitutional scrutiny, the Ordinance must be "narrowly tailored to serve a significant governmental interest."22

This "tailoring requirement does not simply guard against an impermissible desire to censor."23 Rather, "by demanding a close fit between ends and means," the narrow tailoring requirement prevents the suppression of speech "for mere convenience."24 For a content neutral speech restriction—such as the Ordinance—"to be narrowly tailored, it must not ‘burden substantially more speech than is necessary to further the government’s legitimate interests.’ "25 Unlike a content-based speech restriction, the Ordinance " ‘need not be the least restrictive or least intrusive means of’ serving the government’s interests."26 Rather, the First Amendment prohibits the government from regulating speech in a way that would allow a substantial burden on speech to fall in an...

To continue reading

Request your trial
17 cases
  • Greenberg v. Goodrich
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • 24 Marzo 2022
    ...Defendants have failed to prove that Rule 8.4(g) does not "burden substantially more speech than necessary." Turco v. City of Englewood , 935 F.3d 155, 162 (3d Cir. 2019). Defendants have also failed to show that "more targeted tools" for achieving their compelling interest were "seriously ......
  • Free Speech Coal., Inc. v. Attorney Gen. U.S.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • 1 Septiembre 2020
    ...Supreme Court has rejected the ... assertion that [a law] must precisely target the acts it was passed to remedy." Turco v. City of Englewood, 935 F.3d 155, 171 (3d Cir. 2019) (footnote omitted) (citing Hill v. Colorado, 530 U.S. 703, 730–31, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000) ("The fac......
  • Bruni v. City of Pittsburgh
    • United States
    • U.S. Court of Appeals — Third Circuit
    • 18 Octubre 2019
    ...these interests as "undeniably significant" interests that are "clearly serve[d]" by buffer zones); see also Turco v. City of Englewood , 935 F.3d 155, 166 (3d Cir. 2019) (recognizing the government’s significant interest in "protecting the health and safety of its citizens, which ‘may just......
  • Pomicter v. Luzerne Cnty. Convention Ctr. Auth., 18-2380
    • United States
    • U.S. Court of Appeals — Third Circuit
    • 23 Septiembre 2019
    ...ends and means." McCullen v. Coakley , 573 U.S. 464, 486, 134 S.Ct. 2518, 189 L.Ed.2d 502 (2014) ; see also Turco v. City of Englewood , 935 F.3d 155, 162 (3d Cir. 2019). But for nonpublic forums the Supreme Court has made clear there is no "requirement that [a] restriction be narrowly tail......
  • Request a trial to view additional results
1 books & journal articles
  • INTRASTATE PREEMPTION: A NEW FRONTIER IN BURDENING CHOICE.
    • United States
    • Columbia Journal of Gender and Law Vol. 40 No. 1, June 2020
    • 22 Junio 2020
    ...[https://penna.cc/LV2L-FQF9] (discussing protests in front of health care centers). (3) See Turco v. City of Englewood, 935 F.3d 155 (3d Cir. (4) See Freedom of Access to Clinic Entrances Act, 18 U.S.C. [section] 248 (2018) (criminalizing acts that prevent access to reproductive health care......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT