March 21, 2017
from the United States District Court for the Middle District
of Pennsylvania (D.C. Civil Action No. 1-16-cv-00510)
District Judge: Honorable Sylvia H. Rambo.
E. McAlister, Esquire Liberty Counsel Mathew D. Staver,
Esquire Horatio G. Mihet, Esquire (Argued) Liberty Counsel
Counsel for Appellants.
M. Autry, Esquire (Argued) Frank J. Lavery, Jr., Esquire
Lavery Faherty Petterson Counsel for Appellees
Before: AMBRO, JORDAN, and ROTH, Circuit Judges
case before us is a familiar one: a constitutional challenge
to a city ordinance that Plaintiffs Colleen Reilly and Becky
Biter allege impermissibly restricts their right to protest
in the vicinity of abortion clinics. In addition to challenging
the ordinance, Plaintiffs sought a preliminary injunction to
enjoin its enforcement, which was denied. Because the claims
are still before the District Court, we need not review their
merit. However, we clarify the analysis needed in considering
requests for preliminary injunctions, and thus we remand.
City of Harrisburg, Pennsylvania, issued an ordinance that
prohibits persons to "knowingly congregate, patrol,
picket or demonstrate in a zone extending 20 feet from any
portion of an entrance to, exit from, or driveway of a health
care facility." Harrisburg, Pa. Mun. Code §
3-371.4A. The stated purpose of the ordinance is to
"promote the health and welfare of [Harrisburg]
residents and visitors to [its] health care facilities, as
well as the health and welfare of those who may wish to voice
their constitutionally protected speech outside of such
health care facilities . . . ." Id. §
3-371.2C. But for those exempted (e.g., police and
employees of the health care facility), the ordinance
"appl[ies] to all persons equally regardless of the
intent of their conduct or the content of their speech."
Id. § 3-371.4.
are individuals purporting to provide "sidewalk
counseling" to those entering abortion clinics by way of
leafletting, prayer, and conversation in attempts to dissuade
patients from getting abortions. Plaintiffs argue that the
ordinance creates unconstitutional "buffer zones"
that render impossible their ability to engage effectively in
counseling. They claim that the ordinance violates their
First Amendment rights to speak freely, exercise their
religion, and assemble, as well as their Fourteenth Amendment
due process and equal protection rights. As noted, they also
sought a preliminary injunction to enjoin enforcement of the
made several facial and as-applied challenges to the
ordinance, some dismissed by the District Court though most
remain. The Court determined that the ordinance was
content-neutral because it did not define or regulate speech
by subject-matter or purpose, and thus intermediate scrutiny
applied. Under this tier of scrutiny, the Court reasoned that
it must accept as true (for the purposes of a motion to
dismiss) Plaintiffs' claims that the City did not
consider less restrictive alternatives to the ordinance, and
thus it allowed their claims to proceed to discovery.
However, in considering whether to grant preliminary
injunctive relief, the Court ruled that Plaintiffs did not
bear their burden of demonstrating that they were likely to
succeed on the merits, and for that reason alone it denied
the temporary relief sought.
JURISDICTION AND STANDARD OF REVIEW
District Court had federal question subject matter
jurisdiction under 28 U.S.C. §§ 1331 and 1343(a).
We have jurisdiction over interlocutory orders of a district
court granting or denying a preliminary injunction per 28
U.S.C. § 1292(a)(1). "When reviewing a district
court's [denial] of a preliminary injunction, we review
the court's findings of fact for clear error, its
conclusions of law de novo, and the ultimate decision . . .
for an abuse of discretion." Bimbo Bakeries USA,
Inc. v. Botticella, 613 F.3d 102, 109 (3d Cir. 2010).