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Agnes Clift, Amy Cochran, Molly Jesse, Jean v. City of Burlington

February 15, 2013


The opinion of the court was delivered by: William K. Sessions III U.S. District Judge

Memorandum Opinion and Order

Six Vermont residents, Agnes Clift, Amy Cochran, Molly Jesse, Rita Mantone, Bridget Mount, and Jean Osborne (the "Plaintiffs") have brought facial and as-applied challenges to the constitutionality of Burlington Code § 21-113(2) (the "Ordinance") under 42 U.S.C. § 1983. The Ordinance creates a fixed buffer zone extending 35 feet from the premises of a reproductive health care facility ("RHCF") within which individuals may not "knowingly congregate, patrol, picket or demonstrate" unless they fall within one of five exemptions. The Plaintiffs claim that the Ordinance violates their First and Fourteenth Amendment rights because it discriminates on the basis of content and viewpoint; because it is an invalid time, place, and manner restriction; because it is substantially overbroad; and because it is unconstitutionally vague. Compl. ¶¶ 142-97, ECF No. 1.

Before the Court are two motions. For the reasons stated below, the Court grants the City's Motion to Dismiss the facial challenges to the Ordinance, ECF No. 13, and denies Plaintiffs' Motion for a Preliminary Injunction, ECF No. 8.


I.The Ordinance

On July 16, 2012, the Burlington City Council (the "Council") amended the City's Code of Ordinances by adopting a new article, Article IX, Health Center Buffer Zones. Burlington City Ordinance ("BCO") § 21-111 et seq. Article IX consists of five sections.

Section 21-111 lists the Council's findings. The Council recognized the need to balance individuals' First Amendment "right to speak for or against certain medical procedures" with other individuals' "right to obtain medical counseling and treatment in an unobstructed manner." BCO § 21-111. The Council explained that in adopting the Ordinance, its intention was to ensure public safety and order, regulate the use of public sidewalks and other conduct, promote the free flow of traffic on streets and sidewalks, reduce disputes and confrontations requiring law enforcement services, protect property rights, protect First Amendment freedoms of speech and expression and secure a person's right to seek reproductive health care services. Id. And the Council concluded that the limited buffer zone established by the Article was "necessary to ensure that patients have unimpeded access to reproductive health care services while also ensuring that the First Amendment rights of people to communicate their message to their intended audience is not unduly restricted or overburdened." Id.

Section 21-112 defines several terms used throughout Article IX:

(1) Reproductive Health Care Facilities shall mean any building, structure or place, or any portion thereof, at which licensed, certified, or otherwise legally authorized persons provide health care services or health care counseling relating to the human reproductive system.

(2) Buffer Zone means an area of protection surrounding the premises of a Reproductive Health Care Facility that has a thirty-five (35) foot radius extending in all directions.

(3) Premises of a Reproductive Health Care Facility shall mean the driveway, entrance, entryway, or exit of a Reproductive Health Care Facility and any parking lot in which the facility has an ownership, easement or leasehold interest or other property right.

(4) Person shall include, but is not limited to

1. Individuals;

2. Corporations;

3. Not-for profit organizations;

4. Partnerships;

5. Associations; and

6. Groups or other entities.

Id. at § 21-112.

Section 21-113 contains two separate provisions. Subsection (1), which is not challenged by Plaintiffs, prohibits individuals from knowingly obstructing, detaining, hindering, impeding or blocking another person from entering or exiting an RHCF. Subsection (1) does not apply to certain municipal agents such as firemen and utility workers nor to employees or agents of an RHCF acting within the scope of their employment. Subsection (2), the provision at issue in this suit, states that "[n]o person or persons shall knowingly congregate, patrol, picket or demonstrate in the Buffer Zone." Id. at § 21-113(2). Subsection (2) expressly exempts five categories of individuals from this general prohibition: (1) "persons entering or leaving [an RHCF]"; (2) "employees or agents of [an RHCF] acting within the scope of their employment"; (3) "law enforcement, ambulance, firefighting, construction, utilities, public works, and other municipal agents acting within the scope of their employment"; (4) "persons using the public sidewalk or street right-of-way adjacent to such facility solely for the purpose of reaching a destination other than such facility"; and (5) "any person or persons on private property having the consent of the property owner." Id.

Section 21-114 authorizes civil penalties ranging from fifty to five hundred dollars for violations of the Article. Section 21-115 contains a severability clause.

II.Planned Parenthood

A.The Buffer Zone

The Plaintiffs allege that the Ordinance, which came into effect on August 15, 2012, has severely disrupted their ability to approach, counsel, and distribute information to individuals approaching Planned Parenthood's Burlington Health Center ("Planned Parenthood") at 183 St. Paul Street. St. Paul Street runs north to south and has two travelling lanes (one in each direction) and parking spaces on both shoulders. Traffic is intermittent, and noise levels vary throughout the day. On both sides of the street, there is a small strip of grass and a public sidewalk running parallel to the road. Planned Parenthood occupies a single building with a main entrance accessible from the sidewalk on the west side of the street. Planned Parenthood also leases several parking spaces for its clients in a privately-owned lot located directly south of the building, Compl. ¶¶ 37-40; however, the lot is not in use at the moment because an underground parking facility is under construction.*fn1 See Pls.' Exs. 12-14.

The layout of the buffer zone at Planned Parenthood is not disputed. It consists of two areas: a half-circle with a radius of 35 feet centered on the main entrance of the facility and a quasi-trapezoid*fn2 extending 35 feet to the north, south, and east of the lot. See Def. Ex. A. The two areas overlap, causing a continuous 228-foot stretch of sidewalk to fall within the buffer zone.*fn3 Compl. ¶ 43. Because the west curb of St. Paul Street is 22 feet from the facility, the buffer zone extends as much as 13 feet into the street, just short of the lines that divide the travelling lanes.*fn4 Id. at ¶¶ 38; Def. Ex. A.

B.Application of the Ordinance

The buffer zone at Planned Parenthood does not prevent individuals from congregating, patrolling, picketing, or demonstrating once they are 35 feet or more away from the main entrance and parking lot of the facility. In theory, this means a person could occupy any space along the edge of the buffer zone; however, because of where it falls in relation to St. Paul Street, individuals may congregate, patrol, picket, and demonstrate in three stretches by Planned Parenthood. First, they may stand south of the buffer zone on the same side of the street as the facility, a location that is 193 feet from the main entrance. The Plaintiffs seldom occupy this location. Second, they may stand north of the buffer zone, where they are roughly 35 feet from the main entrance. This location is directly in front of a hair salon, and although Plaintiffs occasionally stand there, they generally try to avoid it to accommodate the salon-owner's concerns that their activities would harm his business.*fn5 Finally, the Plaintiffs may stand on the opposite side of St. Paul Street, across from Planned Parenthood's main entrance or parking lot. This has been the primary location of the Plaintiffs' activities since the Ordinance came into effect, and from that area, the Plaintiffs are at least 68 feet from the main entrance to Planned Parenthood. Compl. ¶ 46. After the Ordinance came into effect, the City marked off the last metered parking spot on the east side of St. Paul Street for Plaintiffs so that they would be more visible to persons entering or exiting Planned Parenthood. Id. ¶ 47.

Although the Plaintiffs are willing to share their views with passers-by and to provide information to individuals leaving the facility, their target audience is women who are entering Planned Parenthood to receive counseling or medical services. In the Plaintiffs' experience, close, personal contact with that audience is the most effective way to communicate their message. Though each of the Plaintiffs expresses herself in a slightly different manner, they all agree that shouting from a distance is generally counter-productive. In an affidavit, Ms. Clift explained,

I have found that close personal communication, in a normal conversational voice level, with a kind, gentle voice, and with eye contact, using very few words-from a distance of six to ten feet-is the only way to effectively communicate with women at Planned Parenthood. I have found that eye contact and a smile are very important to get these women to be responsive. I often merely ask them if they would please take my brochure. My experience tells me that communicating in this manner is the best way to provide information and assistance to women seeking abortion. Clift. Dec., ECF No. 8-10, ¶ 27.

The Plaintiffs claim that individuals entering the facility cannot hear them from any of the locations outside of the buffer zone unless they shout. The physical separation imposed by the buffer zone combined with ambient noise on the street from traffic or construction occasionally prevents them from being heard at all. The Plaintiffs' ability to distribute leaflets has also been significantly compromised. Many individuals entering the facility arrive by car and either park or are dropped off within the buffer zone. Theoretically, the Plaintiffs may still reach persons arriving by foot; however, it can be hard to identify whether a pedestrian is heading to the facility or simply walking past until that individual has entered the buffer zone. In fact, in the months since the Ordinance came into effect, only once have the Plaintiffs given a leaflet to a person entering or leaving the facility. The buffer zone interferes less with Plaintiffs' other activities, which include holding signs, engaging in silent and vocal prayer, calling out to individuals entering the facility, and singing. The buffer zone has no impact on the Plaintiffs' ability to communicate with individuals who voluntarily leave the buffer zone to speak with them or to pick up a leaflet; however, in practice, that is a relatively rare event.

None of the Plaintiffs have received tickets for violating the buffer zone at Planned Parenthood, but they have received verbal and written warnings from officers of the Burlington Police Department. For example, on August 15, 2012, Plaintiff Jean Osborne walked into the buffer zone to offer a leaflet to a couple that was approaching Planned Parenthood on foot. Compl. ¶ 61. After the couple declined, Osborne returned to the edge of the buffer zone. Id. Shortly thereafter, Officer Mike Warren arrived on the scene and spoke with Osborne. Officer Warren warned her that she would be ticketed if she continued to try to distribute leaflets inside the buffer zone. Id. When Osborne objected on the grounds that leafleting was not explicitly prohibited under the Ordinance, Officer Warren replied that any activity inside the zone was prohibited.

Later that day, another one of the Plaintiffs, Amy Cochran, entered the buffer zone to read her prayer book on a grass strip next to the sidewalk in front of Planned Parenthood. Id. ¶ 62. Officer Kim Shelley of the Burlington Police Department responded to a call reporting a violation of the buffer zone. Upon her arrival, Officer Shelley "observed Amy Cochran kneeling down on the greenbelt across from the entrance to the facility." Def. Ex. G. Shelley "heard Cochran mumbling something about 'God' and 'help these women.'" Id. Shelley then spoke with Cochran about the Ordinance and explained that no demonstrating was permitted within 35 feet of the building. Id. Shelley issued Cochran a written warning, escorted her out of the buffer zone, and informed her of an informational meeting about the Ordinance that would be taking place at City Hall later in the day. Id.; Pls.' Ex. 18.

On the morning of January 23, 2013, Barry Kade, a pro-choice and free speech activist, began distributing leaflets in front of Planned Parenthood. Kade's leaflets expressed opposition to the Ordinance and asked city residents to call for its repeal. After 20 minutes, two Burlington police officers arrived on the scene and requested that Kade leave. Kade refused to do so unless he was given a ticket or a written warning. One of the officers, Lieutenant Kathleen Stubbing, entered Planned Parenthood to speak with employees of the facility. When she emerged a few minutes later, Kade informed her that he would be leaving the buffer zone but requested that she let him know when officers would begin issuing tickets for violations of the Ordinance. See Pls.' Ex. 20. Later that week, Kade sent an email to Lieutenant Stubbing asking her whether she would have given him a ticket if he had stayed. She simply responded that the police department remains "in the educational phase [in] reference [to] this ordinance." Id.

On August 15, 2012 and at other times since the Ordinance came into effect, Planned Parenthood employees or agents have been stationed at the main entrance to escort individuals approaching the entrance. Id. ¶¶ 60, 63, 65-66. The Plaintiffs allege that these escorts have on at least two occasions interfered with their efforts to communicate with people entering Planned Parenthood. For instance, on August 29, 2012, Cochran was standing at the north end of the buffer zone with a sign containing the words "I REGRET MY ABORTION." Cochran claims that when two individuals approached the main entrance from the south, two Planned Parenthood escorts walked in front of and alongside them in a manner that blocked their view of Cochran's sign. And on September 5, 2012, a male and female were standing together outside Planned Parenthood smoking cigarettes. When Plaintiff Bridget Mount called out to the couple and offered information, a Planned Parenthood escort led them into the building. Rebecca Galvin, who served as a volunteer escort at Planned Parenthood while the Ordinance was in effect (and has since been hired as a part-time employee) testified that she and other escorts are trained to greet clients and to walk them to the entrance of Planned Parenthood without engaging them in any substantive conversation.*fn6 Planned Parenthood instructs escorts not to engage in any advocacy, and in Galvin's experience, they follow that directive. Galvin also testified that despite the intermittent traffic flow on St. Paul Street, she is able to hear the Plaintiffs when she is standing by the entrance to Planned Parenthood.*fn7 She had no doubt that patients approaching Planned Parenthood could also hear communications from the other side of the street because they often reacted with fear, confusion, or anger.*fn8

III.The Ordinance Educational Meeting

Since the Ordinance came into effect, Plaintiffs have expressed confusion about the scope of the activities prohibited in the buffer zone. They profess not to understand the meaning of the terms "congregate" or "patrol"; they think the terms "demonstrating" and "picketing" do not cover some of their activities, including prayer and singing; and they are confused by the scope of the exception for "persons using the public sidewalk . . . solely for the purposes of reaching a destination other than [an RHCF]." BCO § 21-113(2)(a)(4) (emphasis added).

Partially to address these concerns, city officials held an educational meeting at City Hall on August 15, 2012, to explain how they planned to enforce the Ordinance. Deputy Police Chief Jennifer Morrison, Assistant City Attorney Gene Burgman, and Assistant to the Mayor Carina Driscoll all spoke on behalf of the City. Pls.' Ex. 11. Plaintiffs Agnes Clift, Molly Jesse, and Bridget Mount were among those in attendance. During the meeting, the city officials acknowledged that administering the Ordinance would require police to consider the spirit, not just the letter of the law. For example, when the Plaintiffs asked whether praying inside the buffer zone constituted a violation of the Ordinance, the city officials explained that the police


officer at the scene would have to determine whether the hypothetical praying amounted to a demonstration and was therefore subject to the Ordinance. Id. Driscoll, the Mayor's assistant, explained that "the intent of the Ordinance was so that people entering RHCFs did not have to face demonstrators or be bothered." Id. When asked to define the meaning of the key terms of the Ordinance, city officials advised the attendees that they would need to arrive at their own understanding of those terms by consulting a dictionary. Id.

Deputy Police Chief Morrison also explained that the Police Department would be entering an "educational phase" of enforcing the Ordinance and sought the Plaintiffs' cooperation:

The ordinance has been passed. It has been conveyed to us. We are expected to be the enforcement arm of this ordinance. So we are going to do our best to work with people, to educate them, and to ask for compliance from them. It is not the desire of the Burlington Police Department to become adversarial. We understand that you have a very strong position about wanting to be there and to be where folks are accessing this area, but we also understand that the ordinance is clear that it's creating a buffer zone. So, there, there is definitely, a lot of--some discretion in here as to what constitutes a demonstration, picketing, etc. In days ahead, will we need to flush out specifics of that? Maybe. . . .

Pls.' Ex. 11. When asked whether specific activities such as praying within the buffer zone would constitute "demonstrating," Deputy Chief Morrison gave the following response:

I think I can't give you a black-or-white answer. I think I'm going to tell you this: that if I am the officer dispatched to the scene, and I perceive that your act of standing within the buffer zone and praying or doing whatever you are doing constitutes a quote "demonstration," then I will -- then that officer will be expected to enforce the ordinance. I think there's going to be a level of discretion that is involved here. And I think I would ask you that, really candidly, if there[ are] issues like that that need to be clarified, let's do it through the wording of the language, let's work on it together. Let's not put our backs up and see how far we can go until we force a police officer to take action. We're talking about folks who are out there doing the best they can, exercising-you know-under an ordinance that has some grey in it. Let's work together to make it clear what is and isn't allowed, but let's not get into an adversarial position with the police officers on the street.


After the Ordinance Educational Meeting, Plaintiff's counsel, Norman Smith, sent a letter to Burlington Police Chief Michael Schirling requesting clarification as to whether the following activities were lawful within the buffer zone: offering literature, one-on-one oral communications, praying out loud, praying silently, praying silently while wearing a pro-life t-shirt, reading the Bible while wearing a pro-life t-shirt, singing, and singing while wearing a pro-life t-shirt. Letter to Chief Schirling, ECF. No. 8-26. The letter also requested clarification as to whether the Ordinance "prohibit[s] a non-exempt person from being inside the [buffer] zone for any purpose except to reach a destination other than a reproductive health care facility." Id. In response, Chief Schirling stated that he could not answer those questions and referred the Plaintiffs to the City Attorney.

IV.Care Net

The Plaintiffs also allege that the Ordinance has been enforced differently at Care Net, a pro-life RHCF, than it has been at Planned Parenthood, which is pro-choice. Compl. ¶¶ 61-67, 86-96. For one, the City has posted five signs*fn9 around Planned Parenthood demarcating the buffer zone but has not done the same at Care Net. Clift Dep. ¶¶ 36, 60, ECF No. 8-10. It is not clear whether the City installed the signs pursuant to Planned Parenthood's request and, if so, whether Care Net has made a similar request.

On two occasions, protesters associated with the pro-choice group FED-UP Vermont have demonstrated within the buffer zone at Care Net. The first occurred on September 11, 2012. At approximately 5:30 p.m., Deb Coulture, the Executive Director of Care Net, called the Burlington Police to report the protest. Fifteen minutes later, Lieutenant Scott Davidson arrived on the scene and entered Care Net to speak with Coulture. Lieutenant Davidson asked Coulture what she wanted him to do and told her that the protesters had argued that the Ordinance did not apply to Care Net because it was not "a medical center." Decl. Deb Coulture ¶ 5, ECF No. 8-8. Coulture explained that Care Net provides reproductive health care services, including counseling, ultrasound, and pregnancy verification and stated that she wanted the protesters to abide by the buffer zone. Id. According to Coulture, Lieutenant Davidson told her that the protesters would be done shortly, expressed the opinion that the Ordinance was "ridiculous," and asked her if she "really want[ed] to tie up an officer for the next 18 minutes." Id. at ¶ 6. When Coulture repeated her request that he enforce the Ordinance, Lieutenant Davidson replied, "Do you want me to ticket them? It will take a lot longer than 18 minutes to ticket all of them. They are going to be gone in a little while. Do you really want me to tie up an officer when there are more important things going on in the city?" Id. Lieutenant Davidson then left the building, but he did not attempt to move the protesters out of the buffer zone. Compl. ¶ 96. Half an hour later, he returned and told Coulture that the demonstrators were leaving.

The second incident occurred on October 9, 2012. Terri Seward, the Development Director of Care Net, called the Burlington Police Department at approximately 5:40 p.m. to report that around ten protesters were demonstrating 12 to 15 feet from Care Net's entrance. After describing the basic circumstances of the protest to the dispatcher, Seward was placed on hold for several minutes. Def. Ex. M. Seward called the Department again, at which point she spoke to a different dispatcher, who informed her that the reason for the delay was that the Department was responding to several emergencies at that time. Seward told the dispatcher that the protest would probably be wrapping up around 6 p.m. anyway. The dispatcher advised Seward that an officer would return her call as soon as one became free. Id. Seward observed two marked police vehicles pass Care Net during the protest, but neither stopped to respond to her call.

Police Officer Brownell returned Seward's call around 7:30 that evening. Officer Brownell explained that he had driven past the protest earlier in the evening while he was responding to another engagement. He advised Seward "to call again if there were any issues in the days to follow" but that "since the protesters were no longer on the scene, it would not be possible to take action [that night]." Def. Ex. N. At the end of the call, Seward requested that Officer Brownell speak with a fellow officer, Andi Higbee, who was in contact with Care Net after the September 11 incident, and to follow up with a board member at Care Net.


I.Protest Buffer Zones and the ...

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