PHILADELPHIA – A street preacher locally known as “Philly Jesus," who filed a wrongful prosecution case against the City of Philadelphia after being arrested when he was evangelizing in a public park just before Christmas in 2019, wants to obtain the names of vendors who may have witnessed his arrest.
Plaintiff Michael Grant first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on Feb. 7, 2020 versus the City and 11 unnamed Philadelphia Police Department officers.
Grant, 33, described himself in the lawsuit a street preacher and evangelist who maintains no permanent home and earns no regular income, outside of the charity of friends and family. Grant is also known among many Philadelphia citizens as “Philly Jesus,” due to his perceived physical resemblance to Jesus Christ.
Grant said he was arrested on Dec. 21, 2019 while preaching near Philadelphia City Hall in the area of Love Park, which during the Christmas holiday season is transformed into an outdoor, holiday-themed marketplace named “Christmas Village.”
Grant claimed he was exercising his First Amendment rights to freedom of speech and freedom of religion, along with being next to a sign which read, “If you die, are you going to Heaven? Find out here?” or words to that effect, and had a basket for people to give gifts to him if they wanted to.
At that point, Officer John Doe approached Grant and allegedly remarked, “Do you know where you are going?” and “glared at the sign with disapproval" before calling on Grant to stop preaching and leave the area.
Grant said he then asserted his First Amendment rights to be present and preach in that public area. In response, Doe arrested Grant and placed him in handcuffs. Grant added he was “dragged across the street by two Philadelphia police officers and held in handcuffs for approximately a half-hour.”
“Defendant Officer John Doe then scolded plaintiff and threatened plaintiff with jail if plaintiff did not leave the area and cease his First Amendment right to free speech and freedom of religion. Doe then issued a written citation to plaintiff to deter plaintiff from exercising plaintiff’s First Amendment right of free speech and freedom of religion,” the suit said.
“The citation that defendant Officer John Doe issued to plaintiff contained at least one count under the ‘failure to disburse’ portion of Pennsylvania’s Disorderly Conduct statute, which was entirely inapplicable to any of the facts that occurred at or near that time. Plaintiff had in no way violated that statute or any other law in Pennsylvania.”
When Grant again asserted his constitutional rights, he said Doe let him go because “he knew plaintiff had broken no law and the arrest was wrongful.”
“The arrest was undertaken without probable cause and in retaliation for the exercise of plaintiff’s First Amendment rights. Street preaching and evangelizing is free speech, protected under the First and Fourteenth Amendments of the United States Constitution,” the suit stated.
“The City of Philadelphia failed to properly train, supervise and discipline their employees to prevent the harassment, arrest and prosecution of musicians, panhandlers and others who are engaged in protected First Amendment activity.”
It’s not Grant’s first run-in with the Philadelphia Police Department.
He faced both a drug charge in 2009 and was involved in a fraud matter in 2014, pleading guilty in both cases and was sentenced to one year of probation for each.
A 2016 incident at an Apple Store in Center City led to his arrest for disorderly conduct and defiant trespass, charges for which he was later convicted in Philadelphia Municipal Court and sentenced to three months of probation.
Counsel for the City filed an answer to the complaint on Sept. 14, 2020, denying Grant’s allegations in their entirety and bringing four affirmative defenses to the case.
“Plaintiff has failed to state a claim upon which relief can be granted with respect each claim he asserts, and plaintiff has suffered no legally cognizable injury, harm, loss, or damage upon which relief can be granted,” the City’s answer said.
“Each of plaintiff’s claims is barred by the applicable statute of limitations. Answering defendant asserts all of the defenses, immunities, and limitations of damages available to it under the Political Subdivision Tort Claims Act, and avers that plaintiff’s remedies are limited exclusively thereto.”
After an order from U.S. District Court for the Eastern District of Pennsylvania Judge Jan E. DuBois, the formerly unnamed officers were then identified on Feb. 5 as Steven Moffitt and Emile Sauris, and an amended complaint was filed.
Counsel for the City filed a memorandum in support of dismissal on Feb. 19.
“Beyond suing the officers themselves, plaintiff attributes his handcuffing and $50 citation to a ‘major problem with training on the First Amendment of the Philadelphia Police, in that the only training received is Directive 3.12 and other materials but little or no other specific guidelines to help police make decisions what to do when there is protected expressive activity going on in public forum areas in Philadelphia,” the City’s memorandum stated, in part.
“Plaintiff generically concludes that this ‘major problem’ was known to the Police Commissioner and the Mayor, specifically regarding the right to leaflet and express political or religious speech in public forums.”
The City added that the plaintiff’s reference of “a smattering of unrelated arrests which pre-date this incident by well over 10 years, along with his own 2014 arrest” were not applicable and that despite the plaintiff’s argument that the policing directive in question could not be found on the Philadelphia Police Department website, it is in fact there and is “one of many reasons why the City’s [dismissal] motion should be granted.”
UPDATE
On Oct. 12, counsel for Grant filed a motion to compel and extend the discovery deadline, stating that City attorneys did not comply with a prior court order mandating them to provide certain discovery records.
“On or about Oct. 8, 2021, counsel sent a confidentiality agreement stating nothing would be sent unless it was signed. Rule 26(c) may protect the release of confidential psychiatric records or sensitive trade secrets, but all that is sought here are records showing the names and contact information for vendors whose employees who were working at Love Park the date plaintiff was arrested. There is no authority for what is essentially a Rule 26(c) confidentiality order merely to get names and contact information for witnesses who worked in Love Park the night plaintiff was arrested,” the plaintiff’s motion stated.
“This could be used to sanction plaintiff if he reveals the names of witnesses, which has a chilling effect on constitutional rights. The City has shown a pattern of disobedience of the Court’s orders – which it has already done here by not providing the information by Oct. 4, 2021 – and obstructing reasonable discovery. It could have sought a protective order, but has not. The City said it has no documentation as to contact information for vendors at Christmas Village at Love Park in 2019. But a website available online shows names of vendors.”
Plaintiff counsel argued that “eyewitnesses are important” and accused the City of both stalling and attempting to prevent Grant from finding witnesses to prove his case.
“Even if this information is obtained, the Oct. 31, 2021 deadline gives plaintiff almost no time to find witnesses as the court probably will not rule on the motion until Oct. 25, 2021 or later, records must be subpoenaed and depositions set up. Plaintiff filed a second amended complaint as per the Court’s order so the case is likely going to go on for several months in any event. Plaintiff seeks a new discovery deadline of Dec. 15, 2021,” per the motion.
“This is the most important case on First Amendment training in the Eastern District in decades and it is likely the court will deny a motion to dismiss the Monell claim stated in the second amended complaint.”
The City responded with a memorandum of its own opposing the motion the next day, Oct. 13, and admitted the discovery information it was ordered to produce took longer than expected to do so.
“Two days later, on Friday, Oct. 8, 2021, undersigned counsel reached out expressing that the City department in possession of the vendor information had concerns about sharing confidential customer information and requested plaintiff agree to a standard protective order, in an effort to expedite the discovery without Court intervention while preserving the privacy of the third-party citizens whose information was at issue,” the City countered, in part.
“While plaintiff represents that the City has made claims to the contrary, the City does not deny the existence of the vendor information, nor has it unreasonably delayed in the production of said information. Rather, the City has merely attempted to reach an agreement between the parties to protect the confidentiality of the third-party personal contact information without requiring Court intervention in an (unsuccessful) effort to conserve judicial resources and in accordance with the Court’s Procedures at Section I(5).”
For federal claims of violation of the 1st, 4th and 14th Amendments to the U.S. Constitution, plus state law claims of assault and battery, false arrest and imprisonment and invasion of privacy, the plaintiff is seeking unspecified compensatory and punitive damages, attorney’s fees and costs, declaratory and further relief, an injunction ordering the City to cease and desist from arresting street musicians, preachers and panhandlers and a trial by jury as to each count and defendant.
The plaintiff is represented by Vicki Piontek in Danville and J. Michael Considine in Philadelphia.
The defendants are represented by Deputy City Solicitor Jonathan Cooper, Anne B. Taylor and Meghan E. Claiborne of the City of Philadelphia’s Law Department.
U.S. District Court for the Eastern District of Pennsylvania case 2:20-cv-00735
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com