Victory Outreach Center v. Melso

• Decision Date: 22 March 2004
• Docket Number: No. CIV.A.00-5185.,CIV.A.00-5185.
• Citation: 313 F.Supp.2d 481
• Parties: VICTORY OUTREACH CENTER, et al. v. Sergeant MELSO, et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

313 F.Supp.2d 481

VICTORY OUTREACH CENTER, et al. v. Sergeant MELSO, et al.

No. CIV.A.00-5185.

United States District Court, E.D. Pennsylvania.

March 22, 2004.

COPYRIGHT MATERIAL OMITTED

J. Michael Considine, Jr., West Chester, PA, for Plaintiffs.

Elizabeth S. Mattioni, Deputy City Solicitor, Law Department, Philadelphia, PA, David P. Karamessinis, William J. Devlin, Jr., Devlin & Devine, Conshohocken, PA, for Defendants.

MEMORANDUM AND ORDER

HUTTON, Senior District Judge.

Presently before the Court are Plaintiffs' Motion for Summary Judgment (Docket No. 64), Defendants the City of Philadelphia, Sergeant Joseph Melso, Police Officer Jason Parker, Police Officer James Cullen, and Police Officer Eric Fredericksdorf's Opposition to Plaintiffs' Motion for Summary Judgment and Municipal Defendants' Cross-Motion for Summary Judgment (Docket No. 68), and Plaintiffs' revised reply thereto (Docket No. 73).

I. BACKGROUND

Plaintiffs C. Stephen White ("White") and Victory Outreach Center¹ filed the instant suit against Defendants Police Officer James Cullen ("Cullen"), Police Officer Jason Parker ("Parker"), Sergeant Joseph Melso ("Melso"), Police Officer Eric Fredericksdorf ("Fredericksdorf"), the City of Philadelphia ("City" or "Philadelphia") (collectively "the Municipal Defendants"), and St. Joseph's University, alleging infringement of White's First and Fourth Amendment rights pursuant to 42 U.S.C. § 1983.

This suit revolves around three incidents, two of which occurred during the Greek Picnics on July 24, 1999 and July 9, 2000, and the third at St. Joseph's University on March 15, 2001.

Plaintiff White is a minister and evangelist who believes that it is his mission to bring his message of the gospel to college students on campuses in the Philadelphia area and at the annual Greek Picnic. According to White, the Greek Picnic is a predominantly African-American event involving college students that takes place in Philadelphia every July. After the picnic, the celebrants "descend down to South Street," where the crowds can grow to "25,000 people there all over South Street, [and] all up and down Broad Street." C. Stephen White Dep., May 19, 2001, at 15 (Docket No. 69, Ex. A) [hereinafter "White I"].

A. July 24, 1999 Incident at Greek Picnic

On the night of Saturday, July 24, 1999, White traveled to South Street to "preach the word of God" to the predominantly African-American Greek Picnic crowd of teens and college age individuals gathered in the South Street corridor. Id. at 16 (Docket No. 69, Ex. A). White brought with him a four foot by six foot banner that read "Fornicators and drunkards will join Tupac in hell. Obey Jesus. I Corinthians 6:9." Id. at 17-18. The banner was to be attached to an eight foot high pole, which White would then attach to his waist and carry like a flag.

The South Street corridor was a "madhouse. It was so packed with people." Id. at 20. White parked his car around Fifth Street and walked down to Second Street. Due to the large crowd in the area, it took White ten minutes to walk from Fifth Street to Second Street. When he arrived at the intersection of Second and South Streets, White unfolded the banner and hoisted it up. The crowds forced White onto Second Street.

Standing on Second Street, White began to preach and "reiterat[ed] what the banner said." Id. at 41. According to White, he was speaking a little bit louder than normal and ten to twenty individuals gathered around him out of curiosity. About five individuals from the crowd engaged him in conversation. The police asked White to "move on or ... be arrested" only once while he was on Second Street. See White I Dep., at 44. After that, White contends that the police "went hysterical" and thought the crowd was "hostile and erratic." Id. at 44-45. White contends that he didn't sense that from the crowd. White refused to move and the police subsequently arrested him.

According to Officer Parker, he saw White walking down Second Street with the banner and yelling into the crowd. Officer Parker observed approximately fifty to sixty individuals, mostly African-Americans in their twenties, around White. White's "preaching ... caused a large crowd to gather, very loud and boisterous, and [White] was blocking the passageway of the sidewalk." Jason Parker Dep., at 28 (Docket No. 69, Ex. D); see also James Cullen Dep., at 14 (Docket No. 69, Ex. C) ("I heard people complaining within the crowd in reference to the sign ... they were basically upset about the sign."). White "incited the crowd, refused to move, blocked the pavement and made it unsafe for police, himself and other people out there." Cullen Dep., at 30 (Docket No. 69, Ex. C). Officer Parker asked White to continue his activities at another location to relieve the congestion. White did not move. Officer Parker, fearing the situation could turn into something violent, then arrested White for disorderly conduct under 18 Pa. Cons.Stat. Ann. § 5503.

At a hearing held that same night, White was found guilty of disorderly conduct. White appealed and the charges against him were later dismissed.

B. July 9, 2000 Incident at Greek Picnic

The next year, on July 9, 2000, White went to a second Greek Picnic to spread his message. Because the traffic around the South Street corridor was "so bad," White traveled to Broad and Diamond Streets, another location where Greek Picnic participants gathered. White walked to the McDonald's restaurant on 2100 North Broad Street, stood on a chair, and began preaching.

According to White, he only preached for about two minutes before he was arrested. During those two minutes, approximately ten individuals gathered around him but no one engaged him in conversation. White maintains that he never told the crowd that "Tupac was dead in hell" and that the police only asked him to move from his position "probably once," to which White responded that he had the First Amendment right of freedom of speech. See White I, at 60 (Docket No. 69, Ex. A).

Sergeant Melso was assigned to patrol the area around Broad and Diamond Street during this Greek Picnic celebration. According to Sgt. Melso, White stood on a folding chair and was yelling into the crowd of approximately seventy individuals that had gathered around him. As Sgt. Melso approached the McDonald's restaurant, White started to get louder. Sgt. Melso asked White to move because White was blocking the pavement. At that point, White "started yelling the Tupac Shakur thing was dead and burning in hell inciting the crowd up." See Joseph Melso Dep., at 30 (Docket No. 69, Ex. D). "[T]he crowd was primarily African-American. When [White] started saying Tupac Shakur was dead in hell the crowd start[ed] yelling back at him." Id. at 35.² Sgt. Melso was also concerned that "people couldn't get through the crowd [and] would have to walk out into the street to get around [White]." Id. at 37. Concluding that the situation could potentially lead to a riot, and after asking White to relocate five times with no result, Melso arrested White for obstruction of highways and other public passages, in violation of 18 Pa. Cons.Stat. Ann. § 5507.

C. March 15, 2001 Incident at St. Joseph's University

White also preached at local college campuses such as the University of Pennsylvania, Temple University, and Drexel University. On March 14, 2001, White preached at St. Joseph's University, a Catholic school, for the first time. White stood on the "main concourse" along City Line Avenue and addressed the students. On that day, White claims that approximately forty students and other individuals gathered around him. Because there had been complaints what White was "offending students," the police were called and asked White to move on. See White Dep., June 27, 2003, at 72 (Docket No. 69, Ex. B) [hereinafter "White II"]. After speaking to the police, and because it was getting late in the day, White agreed to leave.

White returned to the main concourse of St. Joseph's University the next day, on March 15, 2001. In his first deposition, White states that about ten students assembled around him. See White I, at 82-84. In his second deposition, White states that no one gathered around him and that approximately four to five students listened to him from a distance. See White II, at 82. While preaching, White used physical gestures that included bending down and lunging forward. See White II, at 43-44, 79-80; Ex. 1 of White II (Docket No. 69, Ex. B). Approximately half an hour later, Officer Fredericksdorf approached White and asked White to move to another location by a parking lot. According to White, Officer Fredreriksdorf stated that there were complaints that White was offending students and asked White to move or be arrested. In response, White stated that he prayed and believed that he needed to continue preaching at the same location. See White II, at 88. At that point, White was placed under arrest.

According to Officer Fredericksdorf, on March 15, 2001, about twenty to twenty-five individuals were assembled near White. White was preaching and "yelling something about the girls were Catholic whores." See Eric Fredericksdorf Dep., at 48 (Docket No. 69, Ex. F). Some students shouted back at White in response. Officer Fredericksdorf also observed that White was blocking the sidewalk and that individuals were "entering the street to circumvent" White. See Fredericksdof Dep., at 44-45. Further, the Officer saw a lot of cars stopping in the middle of the street to observe White instead of the traffic pattern. Officer Fredericksdorf concluded that this was an unsafe situation and asked White to continue preaching at a "location more advantageous for public safety." See Fredericksdorf Dep., at 88. When White refused, Officer Fredericksdorf arrested White for obstructing the highway and public passageways, in violation of Pa. Cons.Stat. Ann. § 5507.

D. First Amendment Training in the Police Department

Police recruit...