Brown v Pittsburgh (my student legal brief)

Hey all. So I read the 69 page Opinion, and I figured the best way to summarize it was to practice my legal briefing skills! Here it is. The summary: Ms Brown has no effective challenge of the statute as it is nearly identical to the one the Supreme Court upheld in Hill v Colorado. Have fun!

1. Title and Citation

MARY KATHRYN BROWN, Plaintiff, v. CITY OF PITTSBURGH, et al., Defendants. )
Civil Action No. 06-393 Judge Nora Barry Fischer

2. Facts of the Case

Ms Brown sought a preliminary injunction against enforcement of the Bubble Zone Ordinance which places a place restriction on protesting outside of health care facilities.

In December 2005 the Pittsburgh city counsel passed the Bubble Zone Ordinance which requires a protester within a 100 foot radius of a clinic or hospital to ask permission before approaching a passerby with his or her message. Ms Brown, a protester, argues that this Ordinance violates her First Amendment rights to Free Speech and Free Exercise and that it therefore facially unconstitutional. The relevant law is here:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, ” (Amendment I, US Constitution)

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.

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.

§ 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.

§ 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 counsel against certain medical procedures is a First Amendment activity that must be balanced against another person’s right to obtain medical counseling and treatment in an unobstructed manner; and The City of Pittsburgh Bureau of Police has been consistently called upon in at least two locations within the City to mediate disputes between those seeking medical counseling and treatment and those who would counsel against their actions so as to (i) avoid violent confrontations which would lead to criminal charges and (ii) enforce existing City Ordinances which regulate the use of public sidewalks and other conduct; such services require a dedicated and indefinite appropriation of policing services, which is being provided to the neglect of the law enforcement needs of the Zones in which these facilities exist. 8

The City seeks a more efficient and wide deployment of its services which will help reduce the risk of violence and provide unobstructed access to Health Care Facilities by setting clear guidelines for activity in the immediate vicinity of the entrances to Health Care Facilities. The Council finds that the limited buffer and bubble zones outside the Health Care Facilities established by this Ordinance will ensure that patients have unimpeded access to medical services while ensuring that the First Amendment rights of demonstrators to communicate their message to their intended audience is not impaired.

The RFPA provides that “an agency shall not substantially burden a person’s free exercise of religion, including any burden which results from a rule of general applicability, unless the agency proves, by a preponderance of the evidence that the burden is (1) [i]n furtherance of a compelling interest of the agency, and is (2) [t]he least restrictive means of furthering the compelling interest.” Combs v. Homer Ctr. Sch. Dist., Civil Action No. 04-1599, 2005 U.S. Dist. LEXIS 32007, at *30 (W.D. Pa. Dec. 8, 2005) (quoting 71 PA. CONS. STAT. § 2404) (2007).

A district court may grant the “extraordinary remedy” of a preliminary injunction upon consideration of the following four factors:
(1) whether the movant has shown a reasonable probability of success on the merits;
(2) whether the movant will be irreparably injured by denial of the relief;
(3) whether granting the preliminary relief will result in even greater harm to the nonmoving party; and
(4) whether granting the preliminary relief will be in the public interest.

The following factors must be present before a prior decision has stare decisis effect:
(1) The decision must constitute a holding of the majority of the court and if a particular result is adopted by a clear majority of the court, it has absolute precedential effect in substantially identical legal and factual circumstances.
(2) The decision must involve an issue of law.
(3) Similar factual situations must be involved.
(4) An issue was actually determined by the decision.
(5) The decision must be from the same court or from a court which the court applying stare decisis owes obedience.

Summary of complaint
Ms Brown contends that her right to Free Speech and Free Exercise are restricted by an Ordinance which she argues is facially unconstitutional at three different clinics in the City of Pittsburgh (for a statute to be facially unconstitutional, it must conform to the above criteria). Ms Brown says the Ordinance is unconstitutionally vague, overbroad and constitutes prior restraint of her speech. She asks for a preliminary injunction enjoining the enforcement of the Ordinance.

She argues that she is unable to exercise her right to Free Speech because the ordinance places an undue burden on her activities: ie, by requiring her to ask permission to communicate within 8 feet of a person the Ordinance makes it extremely difficult for her to get her counseling across in the time and space relevant to the clinic (this Ordinance is for all intents and purposes identical to the Ordinance in Hill which was upheld by the Supreme Court as facially constitutional and which this court finds guides this case by state decisis).

Ms Brown also says that she is unable to exercise her religion freely for the reasons given above.

She contends that she does not understand how to obtain consent, whether she may force people to walk by her while she stands still and hands our pamphlets, and whether the statute applies only to her and her cause or to other causes which might warrant protesting in the 100 foot zone (she was a ER Nurse for many years; it is difficult to believe she does not understand consent and informed consent).

She argues that the statute is overbroad in that it restricts both violent and non-violent protest outside the clinics when it was violent protest which she believes the statute was created to protect against (this is not the case: the Ordinance was also created to facilitate the right “to be let alone” which it can be assumed includes the right to have someone backup when they are asked to do so).

She argues that because she must ask passersby for permission to speak to them within 8 feet, she is under prior restraint (a doctrine which applies only to government entities).

3. Issues

Does a government entity have a compelling interest in protecting patients of abortion clinics and all other health care facilities from violence and intimidation?
Do Bubble Zone laws violate protesters’ First Amendment rights?
Are restrictions which protesters find make it more difficult to spread their messages/for them to practice their religion facially unconstitutional?
How can the First Amendment right to speech and the right “to be let alone” balanced?
Is being forced to walk in the street, bump into trees and trashcans and backup when asked to sufficiently burdensome that they leave the Bubble Zone Ordinance facially unconsitutional?

4. Decisions

Plaintiff’s Motion for Preliminary Injunction [DE 22] is DENIED.

5. Reasoning

The case is controlled by Hill v. Colorado in which the Supreme Court found a nearly identical statute to be facially constitutional. In addition, Ms Brown failed to show on any point that her issue necessitated a preliminary injunction as it 1) failed to show probability of success on the merits as she has been able to continue protesting, 2) as she has continued protesting she is not irreparably injured by the Ordinance and she waited 6 months to file a for an Injunction anyway, 3) allowing only Ms Brown to continue protesting would cause all of the traffic flow and imitation of access problems that the Ordinacne was designed to help, 4) protecting a citizen’s constitutional rights in always in the public interest; however Ms Brown did not show her Constitutional rights were being violated and the public interest in allowing all people access to health care is protected by this Ordinance.

Therefore, Ms Brown’s request for a preliminary injunction was denied.

6. Separate Opinions


7. Analysis

This decision means that it will continue to be only massively unpleasant to access abortion services in the Pittsburgh area rather than impossible. It is possible Ms Brown will continue trying for a permanent injunction.

Inspirational Quote:

There is a tragic flaw in our precious Constitution, and I don’t know what can be done to fix it. This is it: Only nut cases want to be president. – Kurt Vonnegut


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