Armes v. City of Philadelphia

• Decision Date: 13 February 1989
• Docket Number: Civ. A. No. 87-7356.
• Citation: 706 F. Supp. 1156
• Parties: Stephanie Morello ARMES, Michael McMonagle and Joseph Wall, Plaintiffs, v. CITY OF PHILADELPHIA, Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

706 F. Supp. 1156

Stephanie Morello ARMES, Michael McMonagle and Joseph Wall, Plaintiffs, v. CITY OF PHILADELPHIA, Defendant.

Civ. A. No. 87-7356.

United States District Court, E.D. Pennsylvania.

February 13, 1989.

COPYRIGHT MATERIAL OMITTED

Mark L. Tunnell, Gawthrop, Greenwood & Halsted, West Chester, Pa., for plaintiffs.

Guy Vilim, Deputy City Sol., Philadelphia, Pa., for defendant.

MEMORANDUM AND ORDER

KATZ, District Judge.

This case involves a challenge by anti-abortion protestors to the City of Philadelphia's enforcement of the Pennsylvania defiant trespass statute. Plaintiffs ask this Court for money damages, a declaratory judgment that their arrests were unconstitutional and an injunction preventing their arrest for similar conduct in the future. Because I find that the plaintiffs' right to express their deeply felt views stops at the private property line of the abortion clinic, I will deny plaintiffs' requests.¹

The stipulated facts are as follows:

1. The Northeast Women's Clinic (hereinafter "NEWC") is a private corporation that operates a clinic which conducts abortions and other pregnancy related services.

2. In 1976, the NEWC leased office space on the second floor of a multi-tenanted office building situate at 9600 Roosevelt Boulevard, Philadelphia, PA.

3. The office building was privately owned by Gemini Corp. and managed for it by J.T. Jackson Realty Company of Philadelphia.

4. From the time of its opening in 1976 to the date of plaintiffs' arrests on October 5, 1985, the NEWC has been the focus of demonstrations and protest activities involving the abortion issue.

5. Abortions were scheduled on Saturdays among other days of the week.

6. On nearly every Saturday over these years, persons would be present to express their opposition to abortions.

7. The physical premises of 9600 Roosevelt Boulevard is further characterized by a parking lot adjacent to the northeast side of the building and two sidewalks, one leading from the parking lot to the front door of the building, which runs along the front of the building, and the other the public sidewalk, abutting 9600 Roosevelt Boulevard.

8. The two sidewalks parallel one another and are separated by a lawn area of more than 20 feet in width. This grass lawn was also privately owned by the Gemini Corporation.

9. The Saturday protest activity of October 5, 1985 did not involve any sit-in type demonstration within the building or any blocking the front door thereof. Rather it was essentially limited to the appearance of 20-30 people who, except as described below, would stand on the public sidewalk, some of whom held signs. They would, on the public sidewalk, kneel, pray or chant, as well.

10. Generally, the same activity was true for other Saturdays as well.

11. On occasion, during these protests, the protest activity became unruly, involving the use of bullhorns, and shouting vivid descriptions such as "abortion is murder." The police were present during protests to preserve peace and order.

12. In addition, on most protest days, including October 5, 1985, as the business patrons of the clinic would arrive in the parking lot, one person or another involved in the protest group would leave the public sidewalk and walk onto the parking lot or up to the inner sidewalk in an attempt to voice their opinion about abortion—and possible alternatives—and to distribute leaflets. Such "counseling" activity was often done on a one-on-one basis and in a conversational tone of voice, but did sometimes become rushed and confrontational.

13. Because of the activity of the protestors, including plaintiffs and others, the NEWC applied to the Court of Common Pleas of Philadelphia County for injunctions, which were duly granted on December 23, 1977 and on August 31, 1983 and which are attached as Exhibits to the Stipulation.

14. From time to time the NEWC would contact the Sheriff of Philadelphia County in order to enforce the injunctions aforementioned, as was the Sheriff's responsibility.

15. The arrests of plaintiffs on October 5, 1985, marked the first arrests of protestors for activity outside the building at this location.

16. Because of the conflict between opposing sides at this site, from 1977 until October, 1985, the Police Department of the City of Philadelphia routinely maintained and monitored demonstrations at this side, through its civil affairs unit.

17. Prior to and including October 5, 1985, the police presence was designed to preserve peace, order, property and physical safety at the location. The police did so primarily by ensuring that protestors remained orderly and by asking protestors to move off the parking lot, grass lawn and inner sidewalk when protestors moved from the public sidewalk thereto. Some protestors did, routinely, move from the public sidewalk to the lawn, inner sidewalk, and parking lot in an effort to convey their messages.

18. Ardis Ryder was the administrative director of the NEWC in 1985 and for sometime prior thereto.

19. Ardis Ryder spoke to officers of the City of Philadelphia regularly concerning their handling of the persons demonstrating outside the building. Mainly she complained that the police were not aggressive enough in keeping the demonstrators off the private property.

20. In the Summer of 1985, she spoke to Captain Shanahan and officers, as did counsel to the NEWC.

21. Ardis Ryder mentioned that she was weary of calling the Sheriff to be present to enforce any injunction violations. He also charged the clinic for his department's services.

22. During these conversations, the City learned that "no trespassing" signs would be erected on the building at 9600 Roosevelt Boulevard, and that they would go up prior to Saturday, October 5, 1985. The NEWC implored Captain Shanahan and others to arrest any person who appeared to be passing out leaflets or talking to clinic patients within the boundary lines of the private property.

23. In August of 1985, the NEWC filed suit before this court (NEWC v. McMonagle, et al., C.A. No. 85-0845) against one or more of the plaintiffs charging them with RICO violations for certain of their activities; among which were complaints that the protestors had entered the clinic building itself in an effort to disrupt abortion activity, during which invasions medical equipment was destroyed. The second and most recent such entry occurred August 10, 1985, and resulted in 12 arrests.

24. Prior to October 5, 1985, two signs, each measuring approximately 2 feet by 2 feet, were erected on the clinic building. The signs stated:

"Private Property"

"No trespassing on parking lot, building or sidewalk area against building. Only tenants and their invitees are permitted on the parking lot, building or sidewalk area."

25. Prior to October 5, 1985, police had investigated the location of the building owner's property lines. They did so by checking City records and by discussing the issue with the real estate agent managing the property on behalf of the owner, Gemini Corporation. Captain Shanahan, the ongoing police supervisor for this location, made these contacts personally. As a result of his inquiries, he learned that the private-public property boundary line ran through the grass lawn area parallel to the front of the building and parallel to the two sidewalks and Roosevelt Boulevard, and a few feet in from the public sidewalk. A large "Health America" sign, located very near this boundary in the lawn, became the landmark to identify the boundary. Neither Captain Shanahan nor any other police personnel ever received information to contradict the legitimacy of this boundary.

26. Based on his information, Captain Shanahan told the lieutenants, sergeants, and police officers under his command of the location of the boundary. Officers on duty at the clinic on Saturday, October 5, 1985 had this information.

27. Prior to, and again effective on October 5, 1985, Ardis Ryder and J.T. Jackson Realty told the police that demonstrators did not have their permission to be present within the said property lines.

28. On October 5, 1985, Stephanie Armes, Joseph Wall and Michael McMonagle all crossed onto the private property several times each. Each time they did so, police officers warned them to return to the public sidewalk or face arrest. Stephanie Armes was arrested after several warnings when she walked onto the private property up to the inner sidewalk and tried to hand literature to a clinic patron.

29. Joseph Wall was arrested after several warnings when he knelt down on the grass near the inner sidewalk and refused to move after being instructed several times by an officer to do so.

30. Similarly, Michael McMonagle was arrested while standing on the interior sidewalk in order to talk to the clinic's patrons and after several warnings to return to the public sidewalk.

31. Officer Oliverio saw other people who were not building patrons going across the property, but did not arrest them; these people were not part of the protest group.

32. At all times material hereto, the premises and building were open to the public in accordance with the posted "no trespassing" signs.

33. Plaintiffs were each arrested and charged by the Philadelphia District Attorney's Office with misdemeanors of the third degree, to wit defiant trespass and conspiracy under criminal complaints, a copy of one of which is appended to the Stipulation.

34. On October 5, 1985, as well as many other Saturdays, persons from the National Abortion Rights Actions League (NARAL) were present on the private property outside the building. For identification purposes, these persons known as "escorts" were dressed in blue smocks with yellow buttons containing the word "CHOICE." The activity of these escorts was to surround clinic patrons while the patrons moved from their cars into the clinic building.

35. Michael McMonagle was arrested at approximately 8:45 a.m., was taken to a local precinct and...