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Reilly v. City of Harrisburg

United States Court of Appeals, Third Circuit

May 25, 2017

COLLEEN REILLY; BECKY BITER; ROSALIE GROSS
v.
CITY OF HARRISBURG; HARRISBURG CITY COUNSEL; MAYOR ERIC PAPENFUSE, In his Official capacity as Mayor of Harrisburg Colleen Reilly; Becky Biter, Appellants

          Argued March 21, 2017

         Appeal 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.

          Mary E. McAlister, Esquire Liberty Counsel Mathew D. Staver, Esquire Horatio G. Mihet, Esquire (Argued) Liberty Counsel Counsel for Appellants.

          Joshua M. Autry, Esquire (Argued) Frank J. Lavery, Jr., Esquire Lavery Faherty Petterson Counsel for Appellees

          Before: AMBRO, JORDAN, and ROTH, Circuit Judges

          OPINION

          AMBRO, Circuit Judge.

         The 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.[1] 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.

         I. BACKGROUND

         The 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.

         Plaintiffs 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 ordinance.

         Plaintiffs 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.

         II. JURISDICTION AND STANDARD OF REVIEW

         The 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).

         III. ...


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