Brown v. City of Pittsburgh

Decision Date22 February 2008
Docket NumberCivil Action No. 06-393.
Citation543 F.Supp.2d 448
PartiesMary Kathryn BROWN, Plaintiff, v. CITY OF PITTSBURGH, et al., Defendants.
CourtU.S. District Court — Western District of Pennsylvania

Benjamin W. Bull, Jeremy D. Tedesco, Alliance Defense Fund, Scottsdale, AZ, David A. Cortman, Alliance Defense Fund, Lawrenceville, GA, Jeffrey A. Shafer, Alliance Defense Fund, Washington, DC, Lawrence Paladin, Jr., Paladin Law Office, Pittsburgh, PA, for Plaintiff.

George R. Specter, Yvonne Schlosberg Hilton, Michael E. Kennedy, City of Pittsburgh Department of Law, Pittsburgh, PA, for Defendants.

OPINION

NORA BARRY FISCHER, District Judge.

This action comes before the Court upon Plaintiff, Mary Kathryn Brown's1 (hereinafter "Brown") Motion for Preliminary Injunction [DE 22], in which Brown challenges the City of Pittsburgh's Ordinance No. 492 (hereinafter "Ordinance"), regulating access to health care facilities. Brown seeks this injunction to prohibit the City of Pittsburgh, Pittsburgh City Council, and Luke Ravenstahl, in his official capacity as Mayor of the City of Pittsburgh3 (hereinafter collectively, "City Defendants"), from enforcing Sections 623.03 and 623.04 of the Ordinance against her.

Upon review of Brown's Motion and Brief [DEs 22 & 23], the City Defendants' response thereto [DE 35], the transcript of the evidentiary hearing held on September 21, 2006 including exhibits presented to the Court, Brown's Proposed Findings of Fact and Conclusions of Law [DEs 50 & 52], the City Defendants' Proposed Findings of Fact and Conclusions of Law [DEs 49 & 51], the transcripts of the City Council meetings leading to the passage of the challenged ordinance,4 as well as Brown's Supplemental Authorities [DE 64], Defendants' response thereto [DE 65], and the oral argument heard by the Court on December 19, 2007, this Court now addresses Brown's motion.

I. Introduction

Brown filed a Motion for Preliminary Injunction on June 28, 2006, seeking to enjoin the City Defendants from enforcing the Ordinance as applied to her. (Docket No. 23, at 1). She maintains that the Ordinance restricts her ability to protest, an activity in which she has engaged outside various reproductive health facilities in the City of Pittsburgh for a number of years. Id. Specifically, Brown alleges that the provisions of the Ordinance are unconstitutional as applied to her individual abortion protest activities at entrances to three facilities: Planned Parenthood in downtown Pittsburgh, Allegheny Reproductive Health Center, and Allegheny Women's Center, both in the East Liberty neighborhood of the City of Pittsburgh. (Docket No. 50, at 2 ¶ 7; Exhibits in Support of Plaintiffs Motion for Preliminary Injunction 5-7 (hereafter, "Pls.Exh.")). These facilities provide medical services to women, including abortions. The City Defendants filed their Opposition to Brown's Motion on August 3, 2006 [DE 35], and a full evidentiary hearing was held on September 21, 2006 before the Honorable Thomas M. Hardiman [DE 44]. Following the hearing, the parties submitted Proposed Findings of Fact and Conclusions of Law [DEs 50-52]. During a status conference held on May 16, 2007 [DE 54], this Court5 provided the parties the opportunity to be reheard by this Court, supplement the record, and/or update their briefs. Both Brown and Defendants initially declined the Court's offer by notice to this Court received on June 1, 2007. Thereafter, during the course of a status and scheduling conference held on November 27, 2007, the Court provided the parties the opportunity to attempt to resolve the matter through the Court's Alternative Dispute Resolution program and/or a consent decree. The parties declined both options. During said conference, Brown requested leave of the Court to supplement authority and to provide argument. Accordingly, argument was held. Upon consideration of the entire record, this Court makes the following Findings of Fact and Conclusions of Law.

II. Findings of Fact
Identification of the Parties

1. Brown has worked as a Registered Nurse in Pittsburgh for twenty-two years. (Docket No. 50, at 2 ¶ 1).

2. Because of her experiences as an Emergency Department nurse, along with her religious beliefs, Brown engaged in sidewalk counseling and leafleting outside three medical services facilities: Planned Parenthood in downtown Pittsburgh, Allegheny Reproductive Health Center in East Liberty, and Allegheny Women's Center in East Liberty. There are sidewalks in front of the entrances of all three facilities. (Id. at ¶ 7).

3. Defendant City of Pittsburgh is a municipal corporation designated as a city of the second class within the Commonwealth of Pennsylvania. Defendant Pittsburgh City Council is the legislative body of the City. Defendant Bob O'Connor was the former Mayor of the City prior to his death in September 2006, after which he was dismissed as party from this action. Defendant Luke Ravenstahl is the current Mayor of the City. (Docket No. 49, at 1 ¶ 2-4). At the time of the Ordinance's passage, he was a member of the City Council. (Docket No. 49-3, at 1).

Enactment of the Ordinance

4. The Ordinance originated in the Public Safety Services Committee and it was sponsored by Douglas Shields, William Peduto, James Motznik, and Sala Udin. (See Appendix A). The law supplements the Pittsburgh Code of Ordinances, Title 6, Conduct Article I: Regulated Rights and Actions, by adding anew chapter, specifically Section 623, "Public Safety at Health Care Facilities." (See Appendix A).

5. At the open hearings held before the Ordinance was enacted, the public commented on the physical violence and verbal harassment that was occurring at these facilities. (See Docket No. 49-2, at 12-14, 18, 20-21, 35, 38-39, 43, 49, 53-54, 60; Docket No. 49-3, at 13, 1'5, 19). City Council accepted comments describing the need for the Ordinance to prevent future harm and provide additional safety to those walking on the city's streets. (Docket No. 49-2, at 12-14, 18, 20-21, 35, 38-39, 43, 49, 53-54, 60).

6. At the public meetings, the need for a more efficient use of the Pittsburgh City Police was discussed. In the six months prior to December of 2005, the City Police were summoned to the downtown facility on Liberty Avenue twenty-two (22) times. (Docket No. 49-2, at 53; Docket No. 49-3, at 13). In January of 2005, because of city budget problems, the police assignment to the downtown Planned Parenthood was eliminated. (Docket No. 49-2, at 8). Without the support of police supervision, the downtown facility has experienced an increase in problems between protestors and patients. Id. Between February and November of 2005, the downtown Planned Parenthood received sixty (60) complaints from patients regarding problematic and often physical confrontations with protestors. (Docket No. 49-3, at 13).

7. In response to concerns of violent confrontations, issues relating to the use of public sidewalks, inefficiency in the deployment of municipal police officers, lack of certainty by citizens and police officers as to proper behavior, and other matters, the City Defendants enacted Ordinance No. 49 on December 23, 2005, by a vote of six to three.6 (Docket No. 49, at 2 ¶ 5; Docket No. 49-2, at 62; Docket No. 49-3, at 32).

8. The challenged provisions of the Ordinance, which became effective on December 30, 2005, provide in their entirety:

§ 623.03 EIGHT-FOOT PERSONAL BUBBLE ZONE

No person shall knowingly approach another person within eight feet (8') of such person, unless such other person consents, for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education or counseling with such other person in the public way or sidewalk area within a radius of one hundred feet (100') from any entrance door to a hospital and/or medical office/clinic.

§ 623.04 FIFTEEN-FOOT BUFFER ZONE

No person or persons shall knowingly congregate, patrol, picket or demonstrate in a zone extending fifteen feet (15') 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.7

§ 623.05 Penalty Section

Any person, firm, or corporation who pleads guilty or nolo contendere, or is convicted of violating of [sic] this section shall be guilty of a summary offense and punished by a fine of at least fifty dollars ($50.00) for the first offense; a fine of at least one hundred fifty dollars ($150.00) for a second offense within five (5) years; and a fine of three hundred dollars ($300.00) for a third offense within five (5) years.

For fourth and subsequent offenses within five (5) years the fine shall not be less than three hundred dollars ($300.00) and/or imprisonment for not less than three (3) days but not more than thirty (30) days.

No part of the minimum fine may be suspended or discharged, except upon proof and a finding of indigence by the court. Indigent defendants may pay fines imposed under this section by participation in a court designated community service program, crediting the commensurate dollar amount of each hour of community service toward payment of the minimum fine owed.

(Ordinance, Sections 623.03, 623.04, and 623.05) (emphasis in original).

9. The purpose and intent behind the creation of the Ordinance is set forth in the Ordinance as follows:

§ 623.01 Intent of Council

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 counse...

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7 cases
  • Brown v. City of Pittsburgh, 08-1819.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 30 Octubre 2009
    ...defined by the Ordinance is virtually identical to the one in the Colorado statute Hill found facially valid.8 Brown v. City of Pittsburgh, 543 F.Supp.2d 448, 471-72 (W.D.Pa.2008) (juxtaposing relevant provisions). Compare Pittsburgh, Pa., Code tit. 6, § 623.03, with Colo.Rev.Stat. § 18-9-1......
  • Stilp v. Contino
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • 30 Septiembre 2010
    ...the most significant, and is, essentially, a determination of whether a constitutional violation has occurred. Brown v. City of Pittsburgh, 543 F.Supp.2d 448, 484 (W.D.Pa.2008) (citing ACLU v. Ashcroft, 322 F.3d 240, 250–51 (3d Cir.2003)). This Circuit recognizes that the violation of a fun......
  • Bruni v. City of Pittsburgh
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
    • 6 Marzo 2015
    ......Civil Action No. 14–1197. United States District Court, W.D. Pennsylvania. ... Brown v. City of Pittsburgh, 543 F.Supp.2d 448 (W.D.Pa.2008) (Fischer, J.). The ......
  • Hoye v. City of Oakland, C 07-06411 CRB.
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    • 4 Agosto 2009
    ...it." See Reding Decl. Ex. 3 at 14-15. Plaintiff has not demonstrated a pattern of selective enforcement. See Brown v. City of Pittsburgh, 543 F.Supp.2d 448, 486 (W.D.Penn. 2008) (holding that plaintiff failed to show a pattern of unlawful behavior based on two incidents of police enforcemen......
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