ALLENTOWN – A federal judge has partially granted summary judgment in a lawsuit filed by an evangelical Christian, who protested the City of Reading’s first-ever Pride March & Rally and was then arrested for disorderly conduct by members of the local police department.
Damon Atkins first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on July 18, 2023 versus the City of Reading, its Mayor Eddie Moran, its Police Chief Richard Tornielli, Sergeant Bradley T. McClure and Officer Courtney Dupree. All parties are of Reading.
(Dupree was later dismissed as a defendant from the case.)
“During the afternoon on or about Saturday, June 3, 2023, several persons were peacefully assembled for a demonstration on a public sidewalk in the City of Reading, specifically on the 800 block of Washington Street. At that location, they stood on the south side of the public sidewalk, opposite the Reading City Hall, to demonstrate against the first Reading Pride March & Rally. At such time and location, the first Reading Pride March & Rally was scheduled to begin with a flag-raising ceremony followed by marching to the City Park,” the suit stated.
“On information and belief, such event was co-organized by the City of Reading and by a private organization, the Reading Pride Celebration. At the event, the Reading Pride Celebration had brought a microphone system, with loudspeakers, for the use of the event organizers. On information and belief, Mayor Eddie Moran was present during all relevant times of the first Reading Pride March & Rally, including the flag-raising ceremony. ‘Pride Month’ is a celebration and promotion of the Lesbian, Gay, Bisexual, Transgender and Queer/Questioning lifestyle during the month of June.”
The suit continued that the plaintiff “proclaims sincere religious beliefs, including a belief in the existence of a God as revealed only through The Bible, that the practice and promotion of homosexuality is sinful and highly offensive to God; that all persons are created in God’s image but as a binary ‘male and female he created them’ and that all sexual conduct outside of a monogamous marriage between one man and one woman is sin.”
The suit explained that Atkins “further believes, as a matter of his religious faith, that persons who disregard the Bible’s teaching on the foregoing matters, and who do not accept Jesus Christ as the only son of God and the only means of obtaining forgiveness from God for sinful behavior, are not reconciled with God and spiritually are not ‘born again.”
“Before Atkins arrived at the 800 block of Washington Street on June 3rd, Sgt. Bradley T. McClure directed all demonstrators to stand on the public sidewalk on the south side of the 800 block of Washington Street, while persons who supported the flag-raising ceremony could stand on the north side of that street. Sgt. McClure also attempted to chill, and did in fact chill, the speech of the persons standing on the south side by asserting that they cannot call out to the people on the north side. Upon information and belief, other speakers complied for fear of arrest or prosecution and thus stifled their own First Amendment-protected speech. This acted as prior restraint on speech in violation of the Constitution. Before Atkins arrived, Sgt. McClure and Officer Courtney Dupree stood in the street, in-between persons standing on the north side and south side public sidewalks,” the suit said.
“During the foregoing demonstration, no one was agitated – neither those who supported Pride Month standing on the north side of the street nor those on the south side who were demonstrating or street-preaching. During the foregoing demonstration, an encounter between Atkins and Sgt. McClure was video-recorded and subsequently uploaded onto YouTube.com. During the foregoing demonstration, Atkins arrived with the intent to proselytize his religious viewpoints. He then and there held a sign that stated, ‘JESUS SAID GO AND SIN NO MORE,’ and he wore a T-Shirt which contained text, ‘YOU MUST BE BORN AGAIN.”
During the demonstration, the suit said, at no point did Atkins “engage in vulgar, obscene or profane language, shout any insults, or hurl any object directed towards the flag-raising ceremony.”
“When Atkins arrived at the demonstration, he stood quietly on the south side of the street. Immediately upon the arrival of Atkins, Sgt. McClure noticed and approached him and ordered him to ‘respect’ the flag-raising ceremony. In response, Atkins informed Sgt. McClure, ‘This is public property. You don’t need to say anything to me’ and ‘God cares. This is public property. You know who’s cheering for this? The people that are in Hell,’ and he further told Sgt. McClure to mind his own business and that Atkins will mind his own,” the suit goes on to say.
“Sgt. McClure, visibly offended by Atkins’ assertion of constitutional rights, took a few steps away and turned his back. At that point, Atkins called out, projecting his voice to the north side of the street, ‘Yo, God is not—‘ and at that very moment, Sgt. McClure lunged at Atkins, interrupting him mid-sentence, and placed his hands behind his back and began handcuffing him. The arrest of Atkins was assisted by Officer Dupree and one additional police officer whose identity is known to the defendants, both of whom failed to intervene for Atkins’ protection and joined in the unlawful conduct of Sgt. McClure.”
Sgt. McClure charged Atkins with a criminal offense under the Pennsylvania Crimes Code, namely, Disorderly Conduct to Engage in Fighting.
McClure claimed that Atkins, “with intent to cause substantial public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he engages in fighting or threatening, or in violent or tumultuous behavior. The defendant, despite being warned by police just moments prior, yelled derogatory comments at an organization that was holding a permitted event, in violation of Section 5503(a)(1) of the PA Crimes Code.”
However, the Berks County District Attorney’s Office refused to prosecute the charged crime against Atkins on the grounds of insufficient evidence, and the criminal proceeding terminated in the plaintiff’s favor.
According to the suit, both Moran and Tornielli issued public statements on the events in question.
“With regard to the incident, the City respects the First Amendment rights of all individuals. However, freedom of speech does not include the right to disrupt an organized event and interfere with the rights of others,” Moran said.
“Our officers gave him warnings to cease that behavior as it was disrupting the event that was taking place,” Tornielli added.
Tornielli further explained to local media that the Reading Police Department Communications Center “had been inundated with phone calls from individuals voicing complaints about the arrest…which contained vile and inappropriate language”, opined that the “harassing phone calls have distracted our communication personnel from fielding calls related to incidents taking place in the City of Reading” and that “the Reading Police Department and our partner law enforcement agencies are investigating the calls which have contained threatening language and will pursue charges where appropriate.”
In a Sept. 18, 2023 answer to the complaint, the defendants denied Atkins’ substantive allegations and provided 27 separate affirmative defenses on their own collective behalf.
“Plaintiff’s complaint fails to set forth a claim, in whole or in part, on which relief can be granted, and further fails to state facts sufficient to entitle plaintiff to the relief sought. No act or failure to act on the part of the defendants violated any of plaintiff’s constitutional rights. At all times material hereto, plaintiff was afforded all of the rights, privileges and immunities granted pursuant to the Constitution and laws of the United States and the Commonwealth of Pennsylvania. Plaintiff suffered no injury or damages as a result of any acts or omissions by the defendants. At all times material hereto, the defendants’ actions were appropriate under the circumstances and based upon a reasonable, good-faith belief that they were justified under the law. At no time material hereto did defendants act in bad faith or in any willful, wanton, outrageous, reckless and/or malicious manner,” the defenses stated, in part.
“Plaintiff’s claims for punitive damages are limited and/or barred by the applicable state constitution, by the Fifth, Eighth and Fourteenth Amendments to the United States Constitution and by the laws of the United States and the Commonwealth of Pennsylvania. Any injury or damages sustained by plaintiff are a direct and proximate result of plaintiff’s conduct. Plaintiff assumed the risk of harm by his own conduct, including, but not limited to, refusing to comply with law enforcement. At no time material hereto were defendants deliberately indifferent to the constitutional rights of plaintiff. Defendants’ actions were privileged and/or defendants are immune from all or part of the claims set forth in plaintiff’s complaint. At no time material hereto did defendants act in bad faith, or wantonly, recklessly, or maliciously, or with a disregard for plaintiff’s health, safety, and welfare. At all times material hereto, the defendants’ actions were appropriate under the circumstances and based upon a reasonable, good-faith belief that probable cause existed to arrest and charge plaintiff.”
UPDATE
In response to Atkins’ May 17 motion for summary judgment, U.S. District Court for the Eastern District of Pennsylvania Judge John M. Gallagher issued a split ruling on July 29.
Gallagher granted summary judgment as to liability on Atkins’ Fourth Amendment, false imprisonment, and assault and battery claims, and further found Sgt. McClure was not entitled to qualified immunity.
However, Gallagher also denied summary judgment on Atkins’ First Amendment retaliation claim, as it pertains to the causal connection element, and malicious prosecution claims.
“Sgt. McClure permitted the counter-protestors to stand across the street from the rally and hold signs bearing religious messages. However, prior to the start of the event, he told the counter-protestors they could not ‘yell insults’ at the crowd, told them to ‘live with’ the event, and told them to ‘shut up’ when they attempted to explain they were not insulting the crowd. After Sgt. McClure arrested plaintiff, he stated, ‘I told you, all you have to do is stand there and keep your mouth shut, and you can’t even do that.’ Effectively chilling all verbal expression of ideas on public property prior to the commencement of a permitted event does not leave open ample alternative channels of communication. Sgt. McClure violated plaintiff’s First Amendment right when he arrested him after he began to speak to the crowd prior to the start of the rally,” Gallagher said.
“Sgt. McClure placed plaintiff under arrest immediately after he began speaking to the crowd. A disorderly conduct arrest, or summons, is sufficient retaliatory action. Lastly, plaintiff must establish a causal link between his constitutionally protected speech and the retaliatory action. However, when viewed in the light most favorable to Sgt. McClure, the evidence raises a genuine issue of material fact regarding whether Sgt. McClure acted in retaliation or whether he conducted the arrest because he legitimately, though mistakenly, believed he had probable cause to do so. Therefore, summary judgment is denied as to this element alone.”
Gallagher opined that it was “objectively unreasonable for Sgt. McClure to arrest plaintiff for disorderly conduct, after plaintiff began speaking to the crowd gathered prior to the permitted event.”
“Aside from the unknown statement made prior to Officer McClure’s approach, plaintiff was unable to utter even a single sentence to the crowd. Additionally, members of the event did not acknowledge plaintiff. Therefore, the Court finds no reasonable juror could find Sgt. McClure had probable cause to arrest plaintiff. Summary judgment is granted as to liability for plaintiff’s Fourth Amendment claims,” Gallagher said.
Gallagher further “accept[ed] Sgt. McClure’s testimony that plaintiff was yelling at members of the crowd prior to Sgt. McClure’s approach” and “does not find as a matter of law that the language used by Sgt. McClure in his incident report, including ‘anti-gay’ and ‘derogatory,’ contained legally false statements at this stage…instead, the veracity of these statements is left for the jury.”
Gallagher additionally granted summary judgment on the plaintiff’s false arrest and assault and battery claims, while denying it on McClure’s defense of qualified immunity.
“After review of the facts known to Sgt. McClure at the time of plaintiff’s arrest, including that plaintiff was engaged in unknown yelling prior to Sgt. McClure’s approach, he spoke over Officer McClure during their conversation, he disobeyed Sgt. McClure’s order not to speak, and he projected his voice to address the crowd, the Court finds that Sgt. McClure’s decision to arrest plaintiff violated plaintiff’s clear constitutional rights. Sgt. McClure’s defense of qualified immunity is therefore denied,” Gallagher said.
For counts of retaliation per the First Amendment to the U.S. Constitution, violation of the Fourth Amendment to the U.S. Constitution and malicious prosecution under 42 U.S.C. Section 1983, the plaintiff is seeking punitive damages, costs and attorneys’ fees, plus such other relief as the court deems necessary, just or appropriate.
The plaintiff is represented by Joel A. Ready of Cornerstone Law Firm in Blandon, plus Benjamin Jeffrey Lewis of Gross McGinley, in Allentown.
The defendants are represented by David J. MacMain, Brian C. Conley and Maeve E. Bain of MacMain Leinhauser, in West Chester.
U.S. District Court for the Eastern District of Pennsylvania case 5:23-cv-02732
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com