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Bruni v. City of Pittsburgh

United States Court of Appeals, Third Circuit

October 18, 2019


          Argued: February 6, 2019

          On Appeal from the United States District Court for the Western District of Pennsylvania (W.D. Pa. No. 2-14-cv-01197) Honorable Cathy Bissoon, U.S. District Judge.

          Kenneth J. Connelly Elissa M. Graves Kevin H. Theriot, Kristen K. Waggoner David A. Cortman Alliance Defending Freedom, Lawrence G. Paladin, Jr. Counsel for Plaintiff-Appellants Nikki Bruni, Julie Cosentino, Cynthia Rinaldi, Kathleen Laslow, and Patrick Malley

          Julie E. Koren Matthew S. McHale [*] Yvonne S. Hilton City of Pittsburgh Department of Law Counsel for Defendant-Appellees City of Pittsburgh, Pittsburgh City Council, Mayor Pittsburgh

          William A. Bonner, Counsel for Amicus Curiae Life Legal Defense Foundation

          Jamie Cohn Stephen M. Juris Janice Mac Avoy Fried Frank Harris Shriver & Jacobson, Susan J. Frietsche Women's Law Project Western Pennsylvania Office Counsel for Amici Curiae Women Law Project, National Abortion Federation

          Stephen M. Crampton Counsel for Amici Curiae Pro Life Action League, Sidewalk Advocates for Life

          Steven W. Fitschen The National Legal Foundation Counsel for Amici Curiae Pacific Justice Institute, Concerned Women for America, National Legal Foundation

          Matthew D. Staver Horatio G Mihet Roger K. Gannam Liberty Counsel Counsel for Amici Curiae Colleen Reilly and Becky Biter

          Erek L. Barron Whiteford Taylor & Preston Counsel for Amicus Curiae International Municipal Lawyers

          Before: HARDIMAN, KRAUSE, and GREENBERG, Circuit Judges.


          Krause, Circuit Judge.

         This case requires us to determine the constitutionality of a Pittsburgh ordinance that creates a fifteen-foot "buffer zone" outside the entrance of any hospital or healthcare facility. Pittsburgh, Pa., Code § 623.04 (2005) [hereinafter "the Ordinance" or "Pitts. Code"]. In relevant part, the Ordinance states that "[n]o person or persons shall knowingly congregate, patrol, picket or demonstrate" in the prescribed zone. Id. Outside of a Planned Parenthood in downtown Pittsburgh, Plaintiffs engage in leafletting and "peaceful . . . one-on-one conversations" conducted "at a normal conversational level and distance" intended to dissuade listeners from obtaining an abortion. Appellants' Br. 9, 17-18. As the City has asserted that the Ordinance applies to this speech, known as "sidewalk counseling," Plaintiffs argue that the Ordinance is facially unconstitutional under the First Amendment and the District Court erred in granting summary judgment in the City's favor. Because we conclude that the Ordinance does not cover sidewalk counseling and thus does not impose a significant burden on speech, we will affirm.

         I. Background

         A. Factual Background[1]

         1. History of the Ordinance

         In the mid- and late 1990s, Planned Parenthood was the site of numerous clashes between opponents and advocates of abortion rights as well as individuals seeking the facility's services.[2] In addition to seeing "hundreds" of people at the facility on a Saturday-"pro and anti"-the clinic was plagued by bomb threats, vandalism, and blockades of its entrance. JA 322a. To address these incidents, the Bureau of Police deployed an overtime detail of "up to ten officers and a sergeant" to maintain order and security, often using crowd-control barriers to separate demonstrators from each other and from patients trying to enter the clinic. JA 1024a.

         In 2002, Planned Parenthood moved to its current location at 933 Liberty Avenue. Although the incidents lessened in severity, contemporaneous police logs and testimony from Sergeant William Hohos indicate that "the pushing," "the shoving," and "the blocking of the doors" continued, and the overtime detail, reduced in size, continued to provide a police presence. JA 323a, JA 834a, JA 837a. After Pittsburgh was declared a financially distressed municipality in late 2003, however, fiscal constraints and the need for redeployment of limited police resources required the detail to be discontinued, and police were called to address the continuing incidents at the site on an as-needed basis. In the wake of the detail's discontinuation, the clinic reported an "obvious escalation in the efforts of the protestors," JA 357a, including an increase in "aggressive pushing, shoving and . . . harassing behavior that included shoving literature into people's pockets, hitting them with signs and blocking their entrance into the building," JA 352a.

         In November 2005, the City Council held hearings on proposed legislation that eventually resulted in the Ordinance. Among those who testified were sidewalk counselors, clinic escorts, patients, and other concerned members of the community. Several witnesses insisted the Ordinance was unnecessary either because they had never observed violent incidents or were unaware of "significant violence" outside the clinic. JA 348a. But other witnesses reported being personally harassed and prevented from entering the clinic, being yelled at through the glass doors of the clinic, and seeing patients being surrounded on the sidewalk. A Planned Parenthood counselor described patients entering the clinic in a "psychological state [of] situational crisis," threatening their health. JA 355a. And "without [police] supervision," the President and CEO of Planned Parenthood of Western Pennsylvania said, "there ha[d] been an increase in unlawful behavior that . . . put[] . . . patients, their families, pedestrians and . . . protestors at risk." JA 352a.

         The City Council also heard from Commander Donaldson of the Pittsburgh Police Department. He reported that police had been summoned to Planned Parenthood twenty-two times in the past six months alone to "mediate confrontations" and respond to incidents ranging from signs "obstructing the front of the building" to protestors "follow[ing] . . . people to the doorway." JA 404a. They had not made any arrests, however. According to Commander Donaldson, the City had on its books "laws . . . that would address obstructing traffic or passageways or . . . the [clinic's] doorway," but those laws would not address the precise problem that was occurring, namely attempts to block people from entering the facility before they reached its front door.[3]JA 398a.

         The debate on the Ordinance was extensive. Many witnesses, both for and against the legislation, expounded on the competing interests at stake and expressed a desire to protect both free speech and access to healthcare, including abortions.

         2. The Ordinance

         Shortly after these hearings, the City Council adopted the Ordinance, and the mayor signed it into law. See Bruni v. City of Pittsburgh (Bruni I), 824 F.3d 353, 357 (3d Cir. 2016). Codified as Chapter 623 of the Pittsburgh Code of Ordinances, the Ordinance states, in relevant part:

No person or persons shall knowingly congregate, patrol, picket or demonstrate in a zone extending 15 feet from any entrance to the hospital and or health care facility. This section shall not apply to police and public safety officers . . . 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.[4]

         Pitts. Code § 623.04. The Council also ratified a preamble that set forth the City's goals in adopting the Ordinance, including "provid[ing] unobstructed access to health care facilities" and "medical services," "avoid[ing] violent confrontations," "provid[ing] a more efficient and wider deployment" of City services, and "ensuring that the First Amendment rights of demonstrators to communicate their message . . . [are] not impaired." Id. § 623.01.

         As originally passed, the Ordinance also included an "[e]ight-foot personal bubble zone," extending one hundred feet around clinics, in which people could not be approached without their consent "for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education or counseling." Id. § 623.03. Following a facial challenge to the Ordinance, we concluded that the Ordinance was content neutral and each zone was constitutionally permissible but the combination of the two zones was not. See Brown v. City of Pittsburgh, 586 F.3d 263, 273, 276-81 (3d Cir. 2009). On remand, the City chose to abandon the floating bubble zone and retain only the fixed buffer zone that prohibited "congregat[ing], patrol[ling], picket[ing] or demonstrat[ing]." Pitts. Code § 623.04. That choice was effectuated by the District Court, which permanently enjoined the bubble zone and required the City to demarcate any fixed buffer zone prior to enforcement.[5]

         3. Application of the Ordinance and Plaintiffs' Activities

         Today, the City has demarcated buffer zones at two locations, both of which provide reproductive health services including abortions. Bruni I, 824 F.3d at 358. Plaintiffs Nikki Bruni, Cynthia Rinaldi, Kathleen Laslow, Julie Cosentino, and Patrick Malley engage in the bulk of their anti-abortion activities outside the buffer zone at Planned Parenthood. See id. at 359. In contrast to the conduct that gave rise to the Ordinance, Plaintiffs do not physically block patients' ingress or egress or engage in violent tactics. Instead, they engage in what they call "sidewalk counseling," meaning "calm" and "quiet conversations" in which they "offer assistance and information to" women they believe are considering having an abortion "by providing them pamphlets describing local pregnancy resources, praying, and . . . peacefully express[ing] [a] message of caring support."[6] JA 59a; see Appellants' Br. 9. That message, Plaintiffs explain, "can only be communicated through close, caring, and personal conversations, and cannot be conveyed through protests." JA 62a. Nonetheless, the City takes the position that Plaintiffs' sidewalk counseling falls within the prohibition on "demonstrating"-if not "congregating," "patrolling," and "picketing" too, see JA 334a-37a-so while they can engage in sidewalk counseling outside the zone, they cannot once within its bounds. See Bruni I, 824 F.3d at 359.

         Plaintiffs describe various ways that the buffer zone has hindered their ability to effectively communicate their message. The street noise makes it difficult for people to hear them, forcing them to raise their voices in a way inconsistent with sidewalk counseling. And at the distance at which they are forced to stand, they are unable to differentiate between passersby and individuals who intend to enter the facility, causing them to miss opportunities to engage with their desired audience through either speech or leafleting.

         In addition to "sidewalk counseling," Plaintiff Nikki Bruni is the local leader of a group participating in the "Forty Days for Life" movement, a global anti-abortion campaign.[7]Twice a year, campaign participants, including Plaintiffs, pray outside of abortion clinics from 7 AM to 7 PM continuously for forty days. They do so in shifts, and many participants wear or carry signs. As the leader of the group, Bruni organizes local churches to ensure people are always outside of the clinic so "there's always groups on the sidewalk present during the 40 Days all day every day." JA 141a. Although the exact number of participants is disputed, the record reflects a daily presence of somewhere between ten and forty people.

         B. Procedural Background

         About five years after we upheld the buffer-zone component of the Ordinance in Brown as a content-neutral time, place, and manner regulation, the Supreme Court decided McCullen v. Coakley, striking down as insufficiently narrowly tailored a Massachusetts law that created a thirty-five-foot buffer zone in front of health facilities where abortions were performed. 573 U.S. 464, 493-97 (2014). The Court found the law "extreme," id. at 497, and "truly exceptional," id. at 490: although congestion occurred at one clinic in one city once a week, the law applied statewide to all reproductive health facilities and, with few exceptions, prohibited any person from even "standing" in the zone, id. at 480, 493. To justify this "significant . . . burden" on speech, id. at 489, the Court held, the government must "show[] that it seriously undertook to address the problem with less intrusive tools readily available to it," such as arrests, prosecutions, or targeted injunctions, or "that it considered different methods that other jurisdictions . . . found effective," id. at 494.

         In light of McCullen, Plaintiffs filed a complaint, challenging the Ordinance, pursuant to 42 U.S.C. § 1983, under the First and Fourteenth Amendments. Bruni I, 824 F.3d at 359. The District Court granted the City's motion to dismiss Plaintiffs' First Amendment claims, and Plaintiffs appealed.[8]Id. at 360.

         We vacated the District Court's dismissal. Id. at 357, 373-74. Taking as true the complaint's allegations that the Ordinance had been enforced against Plaintiffs and had significantly hindered their speech, id. at 369, we concluded that the Ordinance "impose[d] a similar burden as that in McCullen," id. at 368 n.15, so that the City had the same obligation as in McCullen to demonstrate "either that substantially less-restrictive alternatives were tried and failed, or that the alternatives were closely examined and ruled out for good reason," id. at 370. We thus remanded for factfinding on these issues, as well as a determination about "the proper scope of the Ordinance." Id. at 357, 374. Notwithstanding our earlier holding as to content neutrality in Brown, 586 F.3d at 273, 275, 277, we also directed the District Court to consider whether the Ordinance should still be considered content neutral in light of Reed v. Town of Gilbert, 135 S.Ct. 2218 (2015), the Supreme Court's most recent pronouncement on the dividing line between content-neutral and content-based restrictions. Bruni I, 824 F.3d at 365 n.14.

         On remand, the District Court accepted the City's contention that the Ordinance covered Plaintiffs' sidewalk counseling as a form of demonstrating and held that the Ordinance was content neutral, even under Reed. Bruni v. City of Pittsburgh, 283 F.Supp.3d 357, 361, 367-68 (W.D. Pa. 2017). It also distinguished the Ordinance from the statute in McCullen as creating a smaller buffer zone and allowing Plaintiffs to reach their audience through sidewalk counseling despite the buffer zone and therefore concluded that the Ordinance imposed "only a minimal burden on Plaintiffs' speech." Id. at 369-71. Accordingly, it held that the City "ha[d] no obligation to demonstrate that it tried-or considered and rejected"-the alternatives identified in McCullen, such as arrests or targeted injunctions, ...

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