Garisto v. Topper

• Decision Date: 12 April 2023
• Docket Number: 1:20-CV-0646
• Parties: STEPHEN GARISTO, Plaintiff v. CURT TOPPER, in his official Capacity as Secretary of Commonwealth of Pennsylvania Department of General Services, JOSEPH M. JACOB, in his official Capacity as Superintendent of Commonwealth of Pennsylvania Bureau of Police and Safety, and RICHARD SCHUR, individually, and in his official capacity as Sergeant with Commonwealth of Pennsylvania Bureau of Police and Safety, Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

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STEPHEN GARISTO, Plaintiff v. CURT TOPPER, in his official Capacity as Secretary of Commonwealth of Pennsylvania Department of General Services, JOSEPH M. JACOB, in his official Capacity as Superintendent of Commonwealth of Pennsylvania Bureau of Police and Safety, and RICHARD SCHUR, individually, and in his official capacity as Sergeant with Commonwealth of Pennsylvania Bureau of Police and Safety, Defendants.

No. 1:20-CV-0646

United States District Court, M.D. Pennsylvania

April 12, 2023

MEMORANDUM OPINION

Robert D. Mariani, United States District Judge

I. INTRODUCTION

Presently before the Court are cross-motions for summary judgment. Plaintiff Stephen Garisto filed a Motion for Summary Judgment (Doc. 31), as did Defendants Curt Topper, in his official Capacity as Secretary of the Commonwealth of Pennsylvania Department of General Services, Joseph Jacob, in his official capacity as Superintendent of the Commonwealth of Pennsylvania Bureau of Police and Safety, and Richard Schur individually, and in his official capacity as Sergeant with the Commonwealth of Pennsylvania Bureau of Police and Safety (Doc. 27).

Plaintiff is a Christian evangelist, and this case concerns his experience sharing his religious message at the Central Pennsylvania Pride Festival (the “Festival”) in July 2018 and July 2019. Plaintiff filed a complaint on April 20,2020. (Doc. 1.) Plaintiffs first cause of action alleges a violation of his freedom of speech under the First Amendment to the United States Constitution, and his second cause of action alleges a violation of due process under the Fourteenth Amendment to the United States Constitution. (Id. at ¶¶ 111- 117.) In his Prayer for Relief, Plaintiff seeks nominal damages and declaratory relief with respect to the alleged violation of his First Amendment and Fourteenth Amendment rights at the 2019 Festival, and permanent injunctive relief with respect to future Festivals. (Id. at 24-25.)^[1] Specifically, the Prayer for Relief seeks the following in pertinent part:

that this Court enter a permanent injunction enjoining Defendants, their agents, officials, servants, employees, and all persons in active concert or participation with them, or any of them, from applying policy and practice of banishing protected speech of speakers, including Garisto, from perimeter sidewalks and grassy curtilage of the Grove including that of Garisto during the annual Pride Festival[.]

(Doc. 1 at 24-25.)

The issues have been fully briefed and all motions are ripe for disposition.

II. UNDISPUTED FACTS

The following facts are undisputed unless otherwise noted.

A. Background

Plaintiff seeks out public events at which he can share his evangelistic message with others, including the annual Festival in Harrisburg, Pennsylvania. (Defs.' Statement of Facts, Doc. 30 at ¶¶ 1,10.)

In July 2018, the Festival was held at Soldier's and Sailor's Grove Memorial Park (the “Grove”) in downtown Harrisburg for the first time. (Pl.'s Statement of Facts, Doc. 33 at ¶ 17.) It had previously been held at Riverfront Park in Harrisburg, and Plaintiff had attended for many years at that location. (Id. at ¶ 14.)

The Grove is a four-acre park dedicated to Pennsylvania military veterans that sits on the Pennsylvania State Capitol Complex Grounds. (Id. at ¶ 20.) It is shaped like a quadrangle, bound by North Drive to the north, 7th Street to the east, South Drive to the south, and Commonwealth Avenue to the west. (Id. at ¶ 21.) The Grove consists mostly of open grassy areas with lines of trees, “intersecting interior sidewalks, paved arcs, lamp posts, flag poles, and benches.” (Id. at ¶ 22.) Sidewalks also line the perimeter of the Grove. (Id. at ¶ 23.) On the north and south ends of the Grove, the seven-foot wide sidewalks are separated from the street by three feet of grass (the “grassy curtilage”). (Id. at ¶23.)

The Grove is open to the public year-round. (Id. at ¶ 25.) It has no gates, fences, or signs otherwise indicating that access to the park is restricted. (Id. at ¶ 26.) Aside from typical use as a public park, the Grove serves as a venue for permitted public events, as managed by the Pennsylvania Department of General Services (“DGS”). (Id. at ¶ 28.) Title 4, Chapter 86 of the Pennsylvania Code sets forth DGS's policies and procedures concerning the use of the public areas of the Capitol Complex. 4 Pa. Code. § 86.1 et seq.

Chapter 86 provides, in pertinent part,

The public areas of the Capitol Complex must be maintained as intact, attractive, safe and readily available to the thousands of individuals who visit and work there. The Capitol Complex also must be available to individuals who wish to exercise their constitutional rights to assemble and to communicate their views to government officials and the public.

4 Pa. Code § 86.1(b). Further, the Code clarifies that “[a]t no time will the application or administration of these policies and procedures be influenced or affected by considerations of age, sex, race, national origin, handicap, religion, partisan politics or the content of any written or oral communication or other expressive activity.” Id. § 86.1 (c) (emphasis added).

Finally, with respect to protesters, the Code states, in pertinent part,

Demonstrations and leafleting. Picketing, demonstrations and the distribution of literature may not impede or interfere with Commonwealth business or public access to and use of the buildings within the Capitol Complex. To inform individuals and organizations of the procedures for the use of public areas of the buildings within the Capitol Complex and grounds, it is recommended, but not required, that individuals and organizations desiring to distribute literature on the Capitol Complex grounds inform the Secretary of the date and time of the planned activity. To ensure the unimpeded conduct of public business, unobstructed access to the buildings within the Capitol Complex for occupants and the public, and to maintain the Capitol grounds, the Secretary may designate specific areas of the grounds for picketing and the distribution of literature. The Secretary's criteria for making designations will apply equally to all activities regardless of the content of any communications.

4 Pa. Code § 86.5 (emphasis added).

B. 2018 Festival

Organizers of the Festival, led by Bradley Martin, obtained a permit from DGS to hold their event in the Grove on July 28, 2018. (Doc. 33 at ¶ 36; Doc. 31-16, Ex. P.) The boundaries of the permit are not specifically delineated; the permit simply lists the Grove as the relevant facility for the event. (Doc. 31-16, Ex. P.) The permit is silent as to whether it is an exclusive permit. (See id.)

Festival activities, including vendors, were generally confined within the “curb to curb" area of the Grove, but “a stage, food trucks, blockades, generators, and supplies” sat outside the “curb to curb” area. (Doc. 30 at ¶¶ 8,9.) The Grove was not gated or fenced for the event, nor did the event require an admission fee or ticket for entry. (Doc. 33 at ¶ 37.) Attendees could enter from virtually any spot on the periphery of the Grove. (Id. at ¶ 38.)

Plaintiff attended the Festival at the Grove in 2018, as he had for many years at Riverfront Park. (Id. at ¶¶ 14,45.) When Plaintiff arrived with some friends, they positioned themselves on the perimeter sidewalk on the south side of the Grove and began “hand[ing] out literature and conversing] with individuals as they passed by” and walked into the event. (Id. at ¶ 50.) Plaintiff also used a sound amplification device, held a sign, and wore a shirt with an expressive message. (See Docs. 29-1,29-2,29-3, Exs. A-C.)

At some point, Plaintiff and his friends were approached by Defendant Richard Schur, Administrative Sergeant with the Capitol Police, who was working the event as supervisor of the Capitol Police security. (Doc. 33 at ¶ 41.) Sgt. Schur directed Plaintiff and his group to move off of the perimeter sidewalk and onto the adjacent grassy curtilage between the sidewalk and South Drive. (Id. at ¶ 55.) Sgt. Schur advised them that “Capitol Police were keeping them to a small area in the grassy curtilage at the request of [Festival] organizers, who had a permit for use of the Grove that day.” (Id. at ¶ 57.)

Plaintiff thereafter moved to the grassy curtilage and “continued with his evangelistic message to attendees.” (Id. at ¶ 59.) Private security associated with the Pride Festival and carrying rainbow umbrellas stood nearby Plaintiff and his friends. (Id. at ¶ 60.)

Plaintiff left the designated area in the grassy curtilage (the “protest area”) at several points during the event. At one point, Plaintiff walked along the grassy curtilage adjacent to South Drive and passed an RV that was parked on the street parallel to the sidewalk. (Doc. 30 at ¶ 13.) The RV was associated with the Festival and was being used to conduct medical screenings for Festival attendees. (See id.) Citing Sgt. Schur's deposition testimony, Defendants state that Plaintiff was "stand[ing] in front of the door of the RV... in an attempt to engage people.” (Id. (citing Schur Dep. Tr. at 20:14-21:2, Doc. 29-8, Ex. H).) Sgt. Schur testified that he “was advised that people were afraid to go in [to the RV] because [Plaintiff] was standing in front of the door.” (Schur Dep. Tr. at 21:3-4.) Plaintiff “denies he stood in front of the door of the RV,” but admits that

he walked east from where he was standing for approximately 15 to 20 feet and traversed over a crosswalk to another patch of grassy curtilage and toward the eastern end of the Grove and just started speaking before he was stopped by Capitol Police officer Sgt. Schur. In so doing, he walked by a[n] RV in a continuous motion. He also admits that someone parked a[n] RV on

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