HARRISBURG – Litigation between a coalition group of climate change activists wanting to participate in a mid-June rally and the City of Harrisburg over constitutional rights violations connected to its event permit process, has been stayed.
Better Path Planning Coalition Group (an unincorporated association) and Karen Feridun first filed suit in the U.S. District Court for the Middle District of Pennsylvania on April 29 versus the City of Harrisburg and its Mayor, the Hon. Wanda R.D. Williams.
The plaintiffs wanted the Court to order that Harrisburg may not enforce its current permitting rules and allow them to move forward with their planned “Climate Convergence,” a family-friendly slate of events to be held from June 11-13, at Riverfront Park and the Pennsylvania State Capitol.
According to the plaintiffs, their requests for the necessary permits were met by the City with an overbroad list of requirements that they argue was tantamount to “a standard-less prior restraint to core political speech in traditional public forums.”
Though the plaintiffs’ efforts with the City were making headway into the spring, the two sides reached a stalemate over $576 in fees for traffic control connected to a march from Riverfront Park to the Capitol steps on Sunday, June 12, in addition to a yet-to-be-ascertained fee to account for money lost from any metered parking spaces which would need to be blocked off.
The plaintiffs further argued that many of the City’s requirements for permit applications are beyond the financial reach of a modestly-budgeted organization, with fees associated with the “Climate Convergence” totaled over $2,100.
“The City has no other ordinance governing the use of other traditional public forums, such as City streets and sidewalks. Absent any duly-promulgated law to regulate demonstrations in public streets, and no promulgated guidelines to regulate fees, insurance and indemnification requirements in any traditional public forum, Harrisburg officials effectively have unbridled discretion to decide who gets to use public spaces and on what terms Harrisburg gave plaintiffs three documents that purport to regulate use of public forums. Their provenance and historical application are not readily ascertainable,” the suit said.
“Free speech doesn’t come with an entrance fee. The right to freely assemble and peacefully demonstrate is a cornerstone of our democracy. We must remain vigilant in defending that right, especially when it is being violated at our state capitol,” Reggie Shuford, Executive Director of the ACLU of Pennsylvania, said.
“Harrisburg’s permitting process is an inaccessible maze of unnecessary bureaucracy and a patchwork of unconstitutional costs, insurance fees and other problematic requirements. There are countless examples of municipalities that offer a streamlined permitting process that don’t include unconstitutional conditions. Harrisburg can and must do better,” Stephen Loney, a member of plaintiff counsel, added.
On May 3, U.S. District Court for the Middle District of Pennsylvania Judge Christopher C. Conner ordered that the plaintiffs’ motion for a temporary restraining order and preliminary injunction is denied without prejudice as to the request for a temporary restraining order, but deferred as to the request for a preliminary injunction.
Conner further ordered that a hearing and oral argument on the plaintiffs’ motion for preliminary injunction was scheduled for Tuesday, May 24.
The City of Harrisburg replied with a brief on May 16, in support of its argument that the motion for preliminary injunction should be denied.
“The City simply wishes to prevent chaos and enhance public safety by preventing competing events using the same park space at the same time during the busiest use period of the year, and facilitating a safe means to march. The regulations and fees are narrowly tailored to accomplish these goals and the fees are rationally related to direct costs. However, the fees are far under actual costs for the City to accommodate the events. As such, they are nominal,” the City’s reply stated, in part.
“In fact, as to the march there is a free option. Plaintiffs can simply march on the sidewalks without permitting or charge of any kind. The City’s regulatory system is completely content-neutral and has been used successfully for many years. Plaintiffs separate the festival events from the march in their electronic literature, but try to conflate the festival event and the march into one mass for their argument. It is important legally to understand the activities are two different things. This legal view also reflects the reality since plaintiffs concede the festival is a separate event and the parade is on an entirely different day (June 11 then June 12).”
The City further argued that granting the injunction would do it irreparable harm.
“[The City] does have an interest in regulating competing uses of public space so there can be some prior restraint on free speech where the regulations do not delegate overly broad licensing discretion, there are valid time, place and manner restrictions, there are alternatives for communication, the restrictions are narrowly tailored to serve a significant government interest, and are content-neutral,” according to the City.
UPDATE
Subsequent to a Court-ordered settlement conference on May 17, the parties arrived at an interim, conditional settlement according to the following terms, including, but not limited to:
• Plaintiffs shall, within seven days of the date of this order, verify the deposit of $1,186, representing the total of the City fees and costs at issue in this litigation, into escrow that will be maintained pending the full and final resolution of plaintiffs’ claims, either by judgment on the merits or by final settlement agreement;
• Defendants shall approve plaintiffs’ pending permit applications and issue those City permits that authorize plaintiffs to conduct their planned Climate Convergence events on June 11 and June 12, 2022, without requiring any further permitting fees, costs or other charges;
• Nothing herein shall require the City to undertake any service or deploy any resource above and beyond the requested services in the pending permit applications at issue;
• Defendants will design and provide traffic control, including such staffing and equipment the City deems necessary to accomplish road closures and/or necessary traffic controls, for the planned Climate Convergence march on June 12, 2022;
• Plaintiffs will acquire insurance coverage for the June 11, 2022, Climate Convergence festival at Harrisburg’s Riverfront Park; should plaintiffs prevail on the merits of their First Amendment challenge to the constitutionality of the City of Harrisburg’s insurance requirements for the festival, defendants will reimburse the cost of insurance premiums paid by plaintiffs up to $917;
• City of Harrisburg personnel shall continue to work in good faith with plaintiffs to resolve any remaining logistical details that must be resolved for the planned Climate Convergence events to go forward on June 11 and June 12, 2022;
• The plaintiffs agree they will not alter the current march route provided to the City;
• Nothing herein is intended or shall be deemed to constitute an admission of the any party, or be used to diminish any claim or defense in this action, or be used, offered or relied upon in any administrative or judicial proceeding for any purpose, other than enforcement of this agreement;
• Pursuant to the agreement of the parties, plaintiffs’ motion for preliminary injunction and all outstanding discovery demands are hereby deemed withdrawn; and this litigation is stayed pending further order of this Court.
The plaintiffs are represented by Connor P. Hayes, Richard Ting, Witold J. Walczak and Stephen A. Loney of the ACLU of Pennsylvania, in Pittsburgh and Philadelphia.
The defendants are represented by Frank J. Lavery Jr. and Murray Joseph Weed of Lavery Law, in Harrisburg.
U.S. District Court for the Middle District of Pennsylvania case 1:22-cv-00623
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com