PHILADELPHIA – A street preacher locally known as “Philly Jesus” who filed a wrongful prosecution case against the City of Philadelphia and local police officers after being arrested when he was evangelizing in a public park just before Christmas in 2019 has appealed the suit’s recent dismissal to the U.S. Court of Appeals for the Third Circuit.
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 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 was 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.
The City filed a motion to dismiss the complaint on Nov. 5, 2021, arguing that Grant has had several opportunities to properly allege a Monell violation against it and did not do so.
“Plaintiff attributes his handcuffing and $50.00 citation to a ‘major problem with training on the First Amendment of the Philadelphia Police Department, 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.’ 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 dismissal motion read, in part.
“Plaintiff’s second amended complaint significantly expands the breadth of unrelated police actions – encompassing allegations ranging from arrests from 1991 and before, to handling of mass encampments during the Occupy Movement in 2011, to adverse employment actions dating as far back as 1998, to allegations of excessive force in responding to mass protests for racial justice in 2020. Despite having the benefit of 15 months of discovery and time for supplemental research, plaintiff has still only been able to identify a single incident of purported similar activity – his own prior arrest for soliciting money for photographs 7 years prior to the 2019 citation.”
Furthermore, the City argued that the record in this case “establishes that the City has constitutionally sufficient policies and training on First Amendment activity” and therefore, the City’s motion “should therefore be granted, and plaintiff’s Monell claim should be with prejudice.”
Subsequent to the City’s dismissal motion and the plaintiff’s later motion for partial summary judgment on Dec. 30, 2021, U.S. District Court for the Eastern District of Pennsylvania Judge Michael M. Baylson denied them both.
On May 12, the City and defendant officers Emile Sauris and Steven Moffit filed a motion for summary judgment, seeking to dismiss the counts leveled against them: False arrest, First Amendment violations and First Amendment retaliation against Officers Sauris and Moffitt (Counts I-III); Declaratory judgment as to a ban on solicitation or leafletting in Love Park (Count IV) and Municipal liability, against the City of Philadelphia (Count V).
Baylson found, in an Oct. 20 memorandum opinion, opted to grant the defendants’ motion for summary judgment in its entirety and dismiss Grant’s case with prejudice.
“First, the Court does not rely on prospective creation of disorder here: The defendant was engaging in disorderly behavior already when the police approached him that ‘unjustifiably risked a public disturbance.’ Second…Grant was not prohibited from accessing Love Park altogether. He entered the park without any interference and even returned to the same spot to preach immediately after he was released from handcuffs,” Baylson said.
“Finally, there is no complete lack of clarity as to what actually occurred in this incident. Despite minor disputes, the parties agree on the facts that are dispositive and the general narrative of events. Therefore, the officers had probable cause to arrest Grant for disorderly conduct. No reasonable jury could find otherwise.”
Baylson added that “it was not clearly established at the time of plaintiff’s seizure that a reasonable officer would understand that it would be a First Amendment violation to arrest someone speaking in public even when there is probable cause” and therefore, Officer Sauris and Officer Moffitt “are entitled to qualified immunity, as to this claim.”
Baylson further ruled that the officers in question had conducted an “investigative stop” and not a “custodial arrest”, and further, that the officers were entitled to qualified immunity against the remaining counts in this case.
“One undisputed fact of legal significance is the fact that the circumstantial evidence is clear that defendant was soliciting donations during his presence at Love Park. The Court must conclude that defendant, given his extensive experience with making similar appearances in prior years in Love Park and other locations, had reason to know that soliciting within eight feet of a vendor was a violation of a City of Philadelphia ordinance – and this violation, without more – authorized the police to take action removing plaintiff, forcibly since plaintiff had refused to leave Love Park voluntarily, to the perimeter where the police gave him a citation,” Baylson stated.
“The law is settled that giving an individual a citation for a violation of a city ordinance is not an arrest and therefore probable cause need not be shown. The Court could stop the analysis at this point, and conclude that the police acted lawfully, that handcuffing plaintiff does not constitute an arrest, that probable cause, if relevant, existed, and that the right that plaintiff is asserting was not “clearly established” – thus, the police officers are entitled to qualified immunity and summary judgment should be granted.”
UPDATE
On Nov. 3, the plaintiff filed a notice of appeal regarding his case to the Third Circuit and which was docketed on Nov. 18.
“Plaintiff Michael Grant hereby appeals to the U.S. Court of Appeals for the Third Circuit from the final order entered Oct. 20, 2022,” according to the notice.
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, Kathryn Faris and Anne B. Taylor of the City of Philadelphia’s Law Department.
U.S. Court of Appeals for the Third Circuit case 22-3200
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