HARRISBURG – Litigation between a coalition group of climate change activists wanting to participate in a rally and the City of Harrisburg over alleged constitutional rights violations connected to its event permit process, which had been stayed for nearly two years and was the subject of a defense dismissal motion, will proceed.
Better Path Planning Coalition Group and Karen Feridun first filed suit in the U.S. District Court for the Middle District of Pennsylvania on April 29, 2022 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.
After an interim settlement agreement was arrived at on May 17, 2022, it later fell through and the case had been stayed for the better part of two years, until an amended complaint was filed on Feb. 2 of this year.
According to the plaintiffs, the complained-of conditions burdened their 2022 event, forced them to abandon their plans in 2023 and absent injunctive relief, the plaintiffs believe they will continue to suffer harm in connection with their planned 2024 event in October.
The defendants motioned to dismiss the case on Feb. 23 on multiple procedural grounds, such as that the plaintiffs’ requested relief is either impossible to obtain without offending the separation of powers doctrine, unwarranted or both; that there was no plausibility to the plaintiffs’ constitutional claims; and the plaintiffs did not abide by the defendants’ indemnification provisions and insurance requirements in planning their event.
UPDATE
U.S. District Court for the Middle District of Pennsylvania Judge Christopher C. Conner overruled the dismissal motion, in an Aug. 19 memorandum opinion.
“Defendants argue that plaintiffs have failed to state a claim concerning the permit fee, but they rely upon a reading of precedent that the United States Supreme Court has explicitly rejected. In Cox, the Court upheld a licensing scheme that required individuals who wanted to use a forum to pay ‘a sum not more than [$300] for each day’ of an event. Rejecting the argument that the First Amendment required a flat fee, the Supreme Court explained that local governments should enjoy ‘flexibility’ in terms of ‘the adjustment of fees…in light of varying conditions,” Conner said.
“Defendants submit that the $620 permit fee is reasonable under Cox, and that it is not ‘arbitrary,’ but an example of exercising ‘flexibility [in the] adjustment of fees.’ Adjusting for inflation, they argue, that sum is less costly than fees that have survived judicial scrutiny, and thus is reasonable per se in 2024. We disagree. Plaintiffs assert that the permit fee was assessed without reference to a standard or schedule, implicating dubiously broad discretion, and that it represents a ‘classic’ example of prior restraint. Given the fee’s uncertain provenance and the open question of whether it is narrowly tailored to the city’s interests, plaintiffs have stated a plausible First Amendment claim.”
In a similar vein, Conner stated the defendants’ arguments regarding insurance and indemnification fail.
“Plaintiffs assert that defendants’ indemnification requirement is overbroad in that it contemplates reimbursement for any damages, regardless of whether they were caused by event organizers; that the insurance requirement is indefinite because of an internal inconsistency; and that these barriers to the use of a public forum chilled their protected First Amendment activity,” Conner stated.
“In the matter sub judice, the amended complaint identifies a governmental scheme that lacks definite standards and imposes overly broad preconditions to organizing a public event. Defendants suggest that their scheme is subject to a lower level of scrutiny in light of certain commercial or ‘festival’ aspects of plaintiffs’ plans. The court construes this suggestion as a merits argument unsuitable for resolution at this stage. Accepting plaintiffs’ allegations as true as we must, they have plausibly alleged that defendants’ insurance and indemnification requirements are burdensome in ways that interfere with their plans to use Riverfront Park for activities protected by the First Amendment.”
The plaintiffs are represented by Richard Ting, Witold J. Walczak, Stephen A. Loney and Solomon Furious Worlds of the ACLU of Pennsylvania, in Pittsburgh and Philadelphia.
The defendants are represented by Frank J. Lavery Jr., Matthew Ogden Sanyour 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