Jeryl Turco v. City of Englewood

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 17-3716

_____________

JERYL TURCO

v.

CITY OF ENGLEWOOD, NEW JERSEY,

Appellant

_____________

Appeal from the United States District Court

for the District of New Jersey

(No. 2-15-cv-03008)

District Judge: Honorable Susan D. Wigenton

_____________

Argued July 17, 2018

____________

Before: McKEE, VANASKIE and SILER**, Circuit Judges.

(Opinion Filed: August 19, 2019)

______________

The Honorable Thomas I. Vanaskie retired from the Court

on January 1, 2019 after the submission of this case, but

before the filing of the opinion. This opinion is filed by a

quorum of the panel pursuant to 28 U.S.C. § 46(d) and Third

Circuit I.O.P. Chapter 12.

**

The Honorable Eugene E. Siler, Jr., United States Circuit

Judge for the U.S. Court of Appeals for the Sixth Circuit,

sitting by designation.

Donald A. Klein [Argued]

Weiner Law Group

629 Parsippany Road

P.O. Box 438

Parsippany, NJ 07054

Attorney for Appellant

Francis J. Manion [Argued]

American Center for Law and Justice

6375 New Hope Road

New Hope, KY 40052

Attorney for Appellee

___________

OPINION OF THE COURT

___________

McKEE, Circuit Judge.

The City of Englewood, New Jersey, appeals the

District Court’s grant of summary judgment in favor of a

plaintiff who claimed that an ordinance the City enacted to

create a buffer zone around clinics where abortions are

performed violated her freedom of speech, association, and

assembly. Because we conclude that there are genuine issues

of material fact precluding the entry of summary judgment to

either side, we will reverse and remand for further proceedings.

I. BACKGROUND

In March 2014, the City Council of Englewood

amended its ordinances to address aggressive antiabortion

protests that had been regularly occurring outside of

Metropolitan Medical Associates (“MMA” or “the clinic”)—a

health clinic that provided reproductive health services,

including abortions, to women.1 We will discuss the incidents

at MMA in more detail below, but at the outset, it is important

1

The facts included in this preliminary recitation are

undisputed by the parties.

2

to note that this dispute arises against a background that

included “militant activists and aggressive protestors”

beginning to gather outside of the facility in late 2013.2 Many

of these protestors were associated with an evangelical

ministry called the Bread of Life. The Bread of Life had ties to

other radical antiabortion organizations including those which

support violent reprisal against abortion providers. The Bread

of Life protestors engaged in extremely aggressive, loud,

intimidating, and harassing behavior towards patients, their

companions, and even other groups whose views generally

aligned with the Bread of Life’s antiabortion position.

The new ordinance read:

A. Definitions. As used in this

section, the following terms shall

have the meanings indicated:

1. “Health care facility” — as

set forth in N.J.S.A. 26:2H 2.

2. “Transitional facility” —

Community residences for

the developmentally disabled

and community shelters for

victims of domestic violence

as those terms are defined in

N.J.S.A. 40:55D-66.2.

B. Within the City of Englewood, no

person shall knowingly enter or

remain on a public way or

sidewalk adjacent to a health care

facility or transitional facility

within a radius of eight feet of any

portion of an entrance, exit or

driveway of such facility or within

the area within a rectangle created

by extending the outside

boundaries of any entrance, exit or

driveway of such facility in

straight lines to the point where

such lines intersect the sideline of

the street in front of such entrance,

2

JA 428.

3

exit or driveway. This subsection

shall not apply to the following

1. persons entering or leaving

such facility;

2. employees or agents of

such facility 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;

and

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

C. The provisions of subsection B

shall only take effect during such

facility’s business hours and if the

area contained within the radius

and rectangle described in said

subsection B is clearly marked and

posted.

The practical effect of the ordinance was the creation of

three overlapping buffer zones at any qualifying facility. Two

semicircular buffer zones extended outwards eight feet from

either side of the facility’s entrance. The third buffer zone

spanned the width of the facility’s entrance and extended to the

street. A picture of the buffer zones (shown in yellow) is set

forth below:

4

Prior to enacting the disputed ordinance, the City had

increased police patrols on mornings when it anticipated Bread

of Life protestors would be present.3 Police officers present on

the scene imposed informal “no go zones” where protestors

could not stand. Those zones were similar to the buffer zones

that were part of the Ordinance. Although the police presence

temporarily eased tensions at MMA, the hostile protests and

resulting problems resumed immediately after officers left the

clinic.

Plaintiff/Appellee Jeryl Turco was not one of the hostile

or aggressive anti-abortion protestors. Rather, she refers to

herself as a “sidewalk counselor.” It is undisputed that, unlike

the violent and aggressive anti-abortion protestors affiliated

with groups such as Bread of Life, her practice was to calmly

approach women entering the clinic and attempt to engage in

peaceful, nonconfrontational communication. She believes

that such conversational interaction is far more effective than

the tactics favored by the aggressive protestors. In addition,

Turco routinely offered rosaries and literature about prenatal

care to patients entering the clinic. She also invited the women

to accompany her to a crisis pregnancy center across the street,

and often attempted to reassure the women by telling them

3

The Bread of Life protestors generally gathered on Saturday

mornings.

5

things such as: “we can help you” and “we are praying for

you.”

Turco brought this action against the City of Englewood

pursuant to 42 U.S.C. § 1983 to enjoin enforcement of the

Ordinance because she believed that it hampered her efforts to

provide counseling. She alleged that the Ordinance violated

her First Amendment rights to freedom of speech, assembly,

and association. She sought a declaration that the Ordinance

was unconstitutional on its face and as applied and sought to

enjoin its enforcement.

The District Court held the motion in abeyance until we

decided Bruni v. Pittsburgh,4 a case involving a similar

ordinance in the City of Pittsburgh that was then pending in our

court. After we decided Bruni, Turco elected not to renew her

motion for a preliminary injunction, and the parties proceeded

to discovery. Upon completion of discovery, the District Court

granted Turco’s cross-motion for summary judgment.5

The District Court concluded that the statute was

overbroad and not narrowly tailored to serve the government’s

interest. In explaining why it believed the Ordinance was

overbroad, the Court explained that the City “did not create a

targeted statute to address the specific issue of congestion or

militant and aggressive protestors outside of the Clinic.”6

Rather, it found that the City had “created a sweeping

regulation that burdens the free speech of individuals, not just

in front of the Clinic, but at health care and transitional

facilities citywide.”7

Perhaps somewhat understandably, the District Court’s

overbreadth analysis overlapped considerably with its narrow

tailoring analysis.8 The District Court found that the statute

4

824 F.3d 353 (3d Cir. 2016).

5

Turco v. City of Englewood, No. 2:15-cv-03008, 2017 WL

5479509, at *1 (D. N.J. Nov. 14, 2017).

6

Id. at *4.

7

Id.

8

See id. (addressing the “narrowly-tailored requirement” in

the overbreadth analysis section).

6

was not narrowly tailored because the City failed to

demonstrate that it had “employ[ed] alternative, less restrictive

means” of addressing the hostile protestors on the clinic’s

sidewalk.9 Instead, the Court found, the City had “put[] forth

speculative assertions that it tried and/or seriously considered

less restrictive alternatives, such as increased police presence

[or] injunctive relief, prior to adoption of the amended

Ordinance.”10 Accordingly, the Court granted Turco’s motion

for summary judgment, and this appeal followed.

II. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 28 U.S.C. § 1291. We

review appeals from the grant of summary judgment de novo.11

We apply the same test as the district court: viewing the

evidence in the light most favorable to the nonmoving party,

we ask whether there is any genuine issue of material fact.12

“The mere existence of some evidence in support of the

nonmovant is insufficient to deny a motion for summary

judgment; enough evidence must exist to enable a jury to

reasonably find for the nonmovant on the issue.”13

III. DISCUSSION

We analyze § 1983 lawsuits that allege a First

Amendment violation using a three-part test.14 First, we

determine whether the First Amendment protects the speech at

issue.15 Next, we consider the “nature of the forum.”16 Finally,

we resolve “whether the [government’s] justifications for

9

Id. at *5.

10

Id.

11

J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 650 F.3d

915, 925 (3d Cir. 2011) (en banc).

12

Kelly v. Borough of Carlisle, 622 F.3d 248, 253 (3d Cir.

2010).

13

Id. (internal quotation marks omitted) (quoting Giles v.

Kearney, 571 F.3d 318, 322 (3d Cir. 2009)).

14

Cornelius v. NAACP Legal Defense and Educ. Fund, Inc.,

473 U.S. 788, 797 (1985).

15

Id.

16

Id.

7

exclusion from the relevant forum satisfy the requisite

standard.”17

Only the third prong of the test is at issue in this appeal.

The City concedes that the First Amendment fully protects the

speech at issue here and that the Ordinance clearly regulates

speech in a traditional public forum (i.e., the sidewalk).18 The

parties also agree—as do we—that the restrictions imposed are

content-neutral because they regulate “the total quantity of

speech by regulating the time, the place or the manner in which

one can speak . . . .”19 The Ordinance impacts the speech of

those who support abortion as well as those who oppose it; it

is clearly content neutral.20 We therefore apply intermediate

scrutiny.21 Accordingly, to withstand constitutional scrutiny,

17

Id.

18

See Turco, 2017 WL 5479509, at * 4 (noting that

Englewood did “not challenge the fact that the speech at issue

is protected under the First Amendment, or that its Ordinance

suppresse[d] speech in a traditional forum”). Indeed, public

streets and sidewalks are the “quintessential public forum”

and occupy a “special position in terms of First Amendment

protection.” Bruni, 824 F.3d at 366 (citation and internal

quotation marks omitted). When the government imposes

restrictions on communication in these areas, “it imposes an

especially significant First Amendment burden.” Id. (citation

and internal quotation marks omitted).

19

Rappa v. New Castle Cnty., 18 F.3d 1043, 1053–54 (3d Cir.

1994) (citations omitted).

20

See McCullen v. Coakley, 573 U.S. 464, 485 (2014). As

explained in depth below, McCullen considered a

legislatively enacted buffer zone similar to the one enacted

here. The Supreme Court concluded that such enactments

were “neither content nor viewpoint based and therefore need

not be analyzed under strict scrutiny.” Id. In light of this

authority and the parties’ agreement that we should apply

intermediate scrutiny, we need not discuss the appropriate

level of scrutiny in detail.

21

Id. at 485–86.

8

the Ordinance must be “narrowly tailored to serve a significant

governmental interest.”22

This “tailoring requirement does not simply guard

against an impermissible desire to censor.”23 Rather, “by

demanding a close fit between ends and means,” the narrow

tailoring requirement prevents the suppression of speech “for

mere convenience.”24 For a content neutral speech

restriction—such as the Ordinance—“to be narrowly tailored,

it must not ‘burden substantially more speech than is necessary

to further the government’s legitimate interests.’”25 Unlike a

content-based speech restriction, the Ordinance “‘need not be

the least restrictive or least intrusive means of’ serving the

government’s interests.”26 Rather, the First Amendment

prohibits the government from regulating speech in a way that

would allow a substantial burden on speech to fall in an area

that “does not serve to advance its goals.”27

The Supreme Court’s decision in McCullen v. Coakley

offers a useful starting point for our analysis. There, the

Massachusetts legislature amended its Reproductive Health

Care Facilities Act to address protests outside of abortion

clinics. The amended Act made it a crime to knowingly stand

on a “public way or sidewalk” within thirty-five feet of the

entrance or driveway to any facility where abortions were

performed.28 In nearly all material respects, the amended Act

was identical to the Ordinance before us, except the

Massachusetts law established a thirty-five foot buffer zone

and the Ordinance establishes an eight-foot buffer zone. This

is a substantial distinction that the District Court did not

22

Bruni, 824 F.3d at 363–64 (internal quotation marks

omitted) (quoting Madsen v. Women’s Health Ctr., Inc., 512

U.S. 753, 764 (1994)).

23

McCullen, 573 U.S. at 486.

24

Id.

25

Id. (quoting Ward v. Rock Against Racism, 491 U.S. 781,

799 (1989)).

26

Id. (quoting Ward, 491 U.S. at 798)).

27

Id. (internal quotation marks omitted) (quoting Ward, 491

U.S. at 799)).

28

Mass. Gen. Laws, ch. 266 § 120E½ (2012).

9

adequately discuss in relying upon McCullen to support its

order granting summary judgment to Turco.29 Nor did the

District Court fully appreciate the difference between the

presence of demonstrable alternatives in McCullen and the

evidence on this record that explains why less restrictive means

were not likely to serve the City’s interests here.

In McCullen, a sidewalk counselor (McCullen), sued to

enjoin enforcement of a Massachusetts statute that made it a

crime to stand within thirty-five feet of the entrance of any

place where abortions were performed. Following a trial based

on a stipulated record, the district court denied her challenge,

the Court of Appeals for the First Circuit affirmed, and the

Supreme Court granted certiorari.

After concluding that the Act was a content-neutral

restriction on speech in a traditional public forum (sidewalks),

the Court declared the statute unconstitutional. The Court’s

holding was based on the fact that “[t]he buffer zones burden

substantially more speech than necessary to achieve

[Massachusetts’s] asserted interest[].”30 The Court began its

narrow-tailoring analysis by identifying the interests at stake.

It noted that the buffer zones “clearly serve” the “government

interests in ‘ensuring public safety and order, promoting the

free flow of traffic on streets and sidewalks, protecting

property rights, and protecting a woman’s freedom to seek

pregnancy-related services.’”31

But the zones also placed “serious burdens” on the

counselors’ speech interests.32 The thirty-five foot buffer

zones resulted in a heavy burden on “one-on-one

communication,” which is the sidewalk counselors’ preferred

29

See Turco, 2017 WL 5479509, at *5 n.3 (noting only that

“the size of the buffer zone is not dispositive because

[Englewood] has failed to meet its burden and show that the

Ordinance is narrowly tailored to serve a legitimate

governmental interest”).

30

McCullen, 573 U.S. at 490.

31

Id. at 486–87 (quoting Schenck v. Pro-Choice Network of

W. N.Y., 519 U.S. 357, 376 (1997)).

32

Id. at 487.

10

method of speech.33 Imposing such a burden on that type of

speech demands particular constitutional protection because it

is “the most effective, fundamental, and perhaps economical

avenue of political discourse.”34 Similarly, leafleting in support

of controversial viewpoints is the “essence of First

Amendment expression.”35 Accordingly, “[n]o form of speech

is entitled to greater constitutional protection.”36 In sum, the

Court concluded that government-imposed burdens on one-on-

one communication, such as those imposed by the

Massachusetts statute, implicated particularly significant First

Amendment concerns.37

Moreover, the Massachusetts buffer zones carved out “a

significant portion of the adjacent public sidewalks” and

required the counselors to stand “well back” from the clinic.38

The Court identified “uncontradicted testimony” that showed

the buffer zones prohibited McCullen and her colleagues from

effectively engaging in sidewalk counseling either verbally or

by handing literature to the patients.39 As a result, the zones

significantly impacted McCullen’s ministry.40 McCullen

estimated that she had been able to persuade eighty women to

refrain from having abortions since the Act was amended to

create the thirty-five foot buffer zone, but that this figure was

“far fewer people” than she previously reached.41 Jean Zarella,

33

Id. at 488 (internal quotation marks omitted) (quoting

Meyer v. Grant, 486 U.S. 414, 424 (1988)).

34

Id. (internal quotation marks omitted) (quoting Meyer, 486

U.S. at 424)).

35

Id. at 489 (internal quotation marks omitted) (quoting

McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 347

(1995)).

36

Id. at 489 (internal quotation marks omitted) (quoting

McIntyre, 514 U.S. at 347); see also Schenk, 519 U.S. at 377

(“Leafletting and commenting on matters of public concern

are classic forms of speech that lie at the heart of the First

Amendment.”).

37

Id.

38

Id. at 487.

39

Id. at 487–88.

40

Id. at 487.

41

Id.

11

another petition in McCullen, described a far more dramatic

affect of the Massachusetts Act. Before its passing, she stated

that she had an estimated one-hundred “successful

interactions.” After its enactment, the buffer zones prevented

her from persuading a single patient. 42

The Court in McCullen rejected the government’s

contention that it had tried other approaches to address the

hostile sidewalk protestors, but that such approaches were

ineffective. Instead, the Court concluded that “the

Commonwealth [of Massachusetts had] too readily foregone

options that could [have] serve[d] its interests just as well,

without substantially burdening the kind of speech in which

[the sidewalk counselors] wish[ed] to engage.”43 It noted that

Massachusetts had not initiated criminal prosecutions for

existing laws that the hostile protestors could have been

construed to have violated.44 It also had not sought injunctions

against the hostile group in the approximately twenty years

leading up to the Act’s amendment. “In short,” the Court

concluded, Massachusetts “ha[d] not shown that it seriously

undertook to address the problem with less intrusive tools

readily available to it. Nor ha[d] it shown that it considered

different methods that other jurisdictions have found

effective.”45

Even though the District Court failed to fully appreciate

the distinctions between McCullen and this case, the Court here

did fully appreciate the extent to which McCullen should

inform its inquiry into the constitutionality of the Ordinance.

The background giving rise to the buffer zone in Massachusetts

and that which prompted the City of Englewood to enact the

buffer zone here are similar. The competing interests are

identical. Except for the size of the prescribed buffer zones, the

text of the two legislative enactments is nearly the same. In

fact, if the record here included uncontradicted facts similar to

those on the record in McCullen, then the Court’s holding there

would certainly dictate a similar outcome here. However, this

record differs from the one in McCullen in two very important

42

Id. at 487–88.

43

Id. at 490.

44

Id. at 494.

45

Id.

12

ways. First, the buffer zones’ exact impact on the sidewalk

counselors’ speech and the concomitant efficacy of their

attempts to communicate is unclear on this record. Indeed,

Turco admitted that she continued to speak with patients

entering the clinic after the enactment of the buffer zones. At

the very least, there is contradictory evidence regarding the

extent to which the buffer zone prevented Turco from

communicating her message as she wanted. Second, the

record—properly viewed in the light most favorable to the

City— established that the City considered and attempted to

implement alternative means of regulating speech, and that the

City did attempt to enforce existing laws before creating the

buffer zone. Those measures failed. Accordingly, we cannot

agree that Turco was entitled to judgment as a matter of law.

A. The Buffer Zones’ Impact on “Sidewalk Counselors.”

During discovery, Turco agreed that she could talk “to

patients on some kind of regular basis both before and after

[the] adoption of the buffer zone ordinance.”46 But she also

stated that navigating the buffer zones was akin to traversing

an “obstacle course.”47 Nevertheless, Turco testified that she

was able to walk from one side of the entrance to the other,48

even though an occasional snow bank or parked car sometimes

imposed difficulties.49

Similarly, Rosemary Garrett, who also refers to herself

as “a sidewalk counselor,” testified that she was still able to

help women even after the buffer zones were implemented.50

Specifically, she stated in her deposition that she “wasn’t

bothered by the new buffer zone” because it did not affect her

ministry.51 In fact, she stated that her counseling efforts were

thwarted only when the hostile protestors began “yelling and

screaming” and displaying “disturbing pictures.”52 When that

happened, the women began running into the clinic to avoid

46

JA 222–23.

47

JA 224.

48

JA 224.

49

JA 225.

50

JA 135.

51

JA 134.

52

JA 135–36.

13

the protests, which prevented the sidewalk counselors from

approaching the women and offering help.53 According to

Garrett, it was the “aggressive” actions of the anti-abortion

protestors—not the buffer zones—that lead her to stand at the

far corner from the entrance of the facility in order to conduct

her ministry.54

Thus, on this record, we cannot say that the eight-foot

buffer zone imposed an inappropriate burden on speech as a

matter of law. Moreover, such a conclusion would be directly

at odds with the Supreme Court’s decision in Hill v.

Colorado.55 There, the Court considered whether a Colorado

statute that regulated speech within 100 feet of a health care

facility violated the First Amendment. Specifically, the statute

made it “unlawful within the regulated areas for any person to

‘knowingly approach’ within eight feet of another person,

without that person’s consent, ‘for the purpose of passing a

leaflet or handbill to, displaying a sign to, or engaging in oral

protest, education, or counseling with such other person.”56

The statute made it “more difficult [for sidewalk counselors]

to give unwanted advice, particularly in the form of a handbill

or leaflet, to persons entering or leaving medical facilities.”57

Some of those who referred to themselves as “sidewalk

counselors” sued Colorado, alleging that the statute violated

the First Amendment. After the Colorado state courts denied

the challenge, the Supreme Court granted certiorari.

As in McCullen, the Court began its analysis by

discussing the interests at stake, finding that the plaintiffs’

“First Amendment interests . . . [were] clear and undisputed”

because, inter alia, “the public sidewalks, streets, and ways

affected by the statute [were] ‘quintessential’ public forums for

53

JA 135, 137.

54

JA 137–38.

55

530 U.S. 703 (2000).

56

Hill, 530 U.S. at 707 (quoting Colo. Rev. Stat. § 18-9-

122(3) (1999)).

57

Id. at 708.

14

free speech” and the plaintiffs’ ability to communicate was

“unquestionably lessened” by the Colorado statute.58

Concomitantly, the Court noted that the state had an

interest in protecting the health and safety of its citizens, which

“may justify a special focus on unimpeded access to health care

facilities and the avoidance of potential trauma to patients

associated with confrontational protests.”59 Moreover, the

Court noted that “rules that provide specific guidance to

enforcement authorities serve the interest in evenhanded

application of the law.”60 Finally, the Court found that it was

important to distinguish between “state restrictions on a

speaker’s right to address a willing audience and those

[restrictions] that protect listeners from unwanted

communication.”61 It noted that the First Amendment

protected a speaker’s “right to attempt to persuade others to

change their views,” but “the protection afforded to offensive

messages does not always embrace offensive speech that is so

intrusive that the unwilling audience cannot avoid it.”62 The

Court explained the reasonableness and necessity for the eight

foot buffer zone as follows:

The statute seeks to protect those

who wish to enter health care

facilities, many of whom may be

under special physical or

emotional stress, from close

physical approaches by

demonstrators . . . . [T]he statute’s

prophylactic aspect is justified by

the great difficulty of protecting,

say, a pregnant woman from

physical harassment with legal

rules that focus exclusively on the

individual impact of each instance

of behavior, demanding in each

case an accurate characterization

58

Id. at 714–15.

59

Id. at 715 (citation omitted) (citing Madsen, 512 U.S. at

753).

60

Id.

61

Id. at 715–16.

62

Id. at 716 (citation omitted).

15

(as harassing or not harassing) of

each individual movement within

the 8-foot boundary. Such

individualized characterization of

each individual movement is often

difficult to make accurately. . . .

[T]he 8-foot restriction on an

unwanted physical approach

leaves ample room to

communicate a message through

speech. Signs, pictures, and voice

itself can cross an 8-foot gap with

ease.63

Given the record in Hill, the statute satisfied the Court’s

narrow tailoring analysis. It found that the eight-foot buffer

zone between speakers and passersby did not greatly affect

communications.64 Clinic patients were still able to read

signs,65 sidewalk counselors could conduct conversations in a

normal tone,66 and the buffer zone allowed a leafleteer to stand

“near the path of oncoming pedestrians [while] proffering his

or her material, which the pedestrians [could] easily accept.”67

The District Court did not explain why the eight-foot buffer

zone here was unconstitutional despite the Supreme Court’s

conclusion that the eight-foot buffer zone in Hill passed

constitutional muster. In fact, the District Court did not even

cite Hill.

63

Id. at 729

64

Id. at 726.

65

Id. (“The 8-foot separation between the speaker and the

audience should not have any adverse impact on the readers’

ability to read signs displayed by demonstrators.”).

66

Id. at 726–27 (“[T]his 8-foot zone allows the speaker to

communicate at a ‘normal conversational distance.’” (quoting

Schenk, 519 U.S. at 377)).

67

Id. at 727. The Court allowed that the “8-foot interval could

hinder the ability of a leafletter to deliver handbills to some

unwilling recipients.” Id. Ultimately, it found that the

Colorado restriction adequately protected the rights of the

counselors to convey their message.

16

Given the Court’s analysis in Hill, we simply cannot

conclude that the eight-foot buffer zones established under the

Ordinance posed a severe burden on speech, and the record is

clearly inadequate to support such a conclusion as a matter of

law. Rather, we conclude that there are material issues of

genuine fact regarding the extent to which Turco retained the

ability to communicate despite enactment of the eight-foot

buffer zone.

B. Less Restrictive Alternatives.

We also disagree with the District Court’s conclusion

that the record shows that the City failed to consider less

restrictive means of regulating speech in front of the clinic. To

be sure, the District Court was clearly correct when it found

that the City had not “prosecute[d] any protestors for activities

taking place on the sidewalk” and “did not seek injunctive

relief against individuals whose conduct was the impetus for

the Ordinance.”68 Those facts are not disputed.

However, the City and its representatives explained that

it had attempted to increase police presence at the Clinic, had

considered alternative means of bringing order to the sidewalk,

and proffered reasonable explanations for why those and other

means were ineffective. The former Chief of Police, Arthur

O’Keefe, testified that, given the limitations of “manpower”

and the need to be able to deploy officers in response to

emergencies such as drive-by shootings, it was not feasible to

permanently provide a significantly increased police presence

at the clinic.69 He also stated that some off-duty officers

worked at the clinic, but that the police department had “finite

resources” and much of it was devoted to violent crime.70

Accordingly, he could not “simply dedicate an officer four

hours at a time every day to enhance their security.”71

During her deposition, Lynn Algrant, the President of

Englewood City Council, testified extensively about the

alternative means that the Council considered and why they

were ineffective. She stated that the City had attempted to

68

Turco, 2017 WL 5479509, at *5.

69

JA 207.

70

JA 207.

71

Id.

17

increase police presence at the clinic on a volunteer basis, but

officers were not signing-up for any shifts.72 She also testified

that, despite manpower restrictions, on-duty officers were

regularly dispatched to the clinic, but the hostile protests would

resume as soon as the officers left.73 Algrant said that she

encouraged the clinic to seek an injunction or file criminal

complaints, but those efforts were hampered because the clinic

escorts feared for their safety.74 She recalled occasions where

clinic escorts were so frightened that they became

“hysterical,”75 yet they still refused to file complaints because

of the threat of retaliation from the hostile protestors. The

safety concerns were not unwarranted. One of the women at

the clinic found a picture of herself on the internet inside of a

bullseye, and as a result, the clinic escorts “were extremely

protective of their privacy and extremely protective for their

safety.”76

Timothy Dacey, the City Manager for Englewood,

supported Algrant’s testimony. He believed that “it [would

have been] cost prohibitive for [the City] to provide security

for the clinic.”77 Dacey also stated that the police department’s

policy prohibited them from providing individual security

coverage to private businesses.78 He also testified that an

increase in police patrols in the area were ineffective, and that

the clinic escorts were too fearful to make complaints.79 Chief

O’Keefe confirmed this in his testimony, stating that some of

the targets of the protestors’ ire gave their names, but “many

other people that were involved in incidents did not” because

they were “concerned about subsequent identification or . . .

were emotionally too distraught to become involved further.”80

72

JA 54.

73

JA 55, 58–59.

74

JA 60, 64.

75

JA 75.

76

JA 64.

77

JA 86.

78

JA 87.

79

JA 88–89.

80

JA 205.

18

This fear was also borne out by the deposition testimony

from clinic escorts and through e-mails between the escorts and

City officials. One clinic escort testified that “antiabortion

groups [were] notorious for finding out people’s personal

information, whether patients or abortion providers or escorts”

and using it to further target their acts of harassment.81 She

stated that her colleagues “have had antiabortion protesters

show up at their place of work, their houses, [and] put their

phone numbers and addresses and personal information and

photos on websites.”82 As a result, the clinic escorts were “very

careful to not let the protestors get any of our personal

information” and used nicknames for each other while

conversing on the sidewalk.83 The sidewalk escort testified that

she was concerned about the Bread of Life’s apparent

affiliation with a “fringe antiabortion group[],” Abolish

Human Abortion.84 That group was itself aligned with

“domestic terrorists” and “clinic bombers.”85 She also testified

that the Bread of Life protestors were aligned with “Operation

Rescue” a group that also aligned itself “with clinic bombers

and celebrate[d] the murders of abortion doctors.”86

That same clinic escort submitted a certification which

included as exhibits several detailed accounts of the chaotic

sidewalk environment that had developed outside of the

clinic.87 She noted that the Bread of Life protestors filmed the

patients’ license plates when they parked their cars, but she was

unsure what they did with the information.88 She also stated

that the hostile protests had escalated to a point that included

“repeated physical assaults of escorts.”89

In summary, the testimony of the various stakeholders

when properly viewed in the light most favorable to the City

81

JA 145.

82

JA 145.

83

JA 145.

84

JA 146.

85

JA 146.

86

JA 146.

87

JA 166.

88

JA 181.

89

JA 179.

19

demonstrated that the City considered alternative means of

restricting speech around the clinic. A jury could find that

financial restraints and fear of reprisal prevented these

measures from being effective. We therefore hold that this

record was not appropriate for summary judgment.

C. Our Decision in Bruni.

Our decision here is consistent with our earlier decision

in Bruni.90 There, we considered whether a Pittsburgh

Ordinance that established fifteen-foot buffer zones around all

health care facilities violated the First Amendment. That

ordinance read:

No person or persons shall

knowingly congregate, patrol,

picket or demonstrate in a zone

extending fifteen (15) feet from

any entrance to the hospital and or

health care facility. This section

shall not apply to police and public

safety officers, fire and rescue

personnel, or other emergency

workers in the course of their

official business, or to authorized

security personnel employees or

agents of the hospital, medical

office or clinic engaged in

assisting patients and other

persons to enter or exit the

hospital, medical office, or

clinic.91

We noted that, on its face, this statute applied to all hospitals

and health care facilities in Pittsburgh.92 However, the City had

only ever demarcated two buffer zones, both in front of

facilities that provided abortion services.93 A group of persons

who wanted to communicate with women entering the clinics

sued the City of Pittsburgh, claiming that the ordinance

90

824 F.3d 353 (3d Cir. 2016).

91

Pittsburgh Pa., Code § 623.04.

92

Bruni, 824 F.3d at 358.

93

Id.

20

violated the First Amendment.94 They also sought a

preliminary injunction.95 Following a hearing on the

injunction, the District Court granted Pittsburgh’s motion to

dismiss the complaint. The plaintiffs appealed and we

reversed.

We held that the District Court erred by dismissing the

plaintiffs’ complaint and remanded for further factual

development. Specifically, we found that allegations in the

complaint suggested that the burden imposed on speech was

akin to that in McCullen.96 The plaintiffs alleged that the buffer

zone prevented them from reaching their intended audience

and made conversations with the clinic’s patients much more

difficult.97 Because the case was still at the pleading stage,

those allegations were sufficient to require the government to

prove “either that substantially less-restrictive alternatives

were tried and failed, or that the alternatives were closely

examined and ruled out for good reason.”98 We noted that

Pittsburgh could not simply forego the range of alternatives

available to it “without a meaningful record demonstrating that

those options would fail to alleviate the problems meant to be

addressed.”99 Finally, Bruni emphasized the “rigorous and

fact-intensive nature of intermediate scrutiny’s narrow-

tailoring analysis,” and cautioned that the facts developed as

the proceedings commenced would ultimately decide whether

the restriction was justified.100

Although Bruni arose at the pleading stage and the case

before us was resolved through a motion for summary

judgment, Bruni is instructive because it highlights the

intensely factual nature of the inquiry that is usually needed to

resolve disputes arising from imposition of buffer zones such

as this one. We emphasized that “the constitutionality of buffer

zone laws turns on the factual circumstances giving rise to the

94

Id. at 359.

95

Id.

96

Id. at 369.

97

Id.

98

Id. at 370.

99

Id. at 371.

100

Id. at 372–73.

21

law in each individual case—the same type of buffer zone may

be upheld on one record where it might be struck down on

another.”101

This record contains a multitude of contradicting factual

assertions. Some facts suggest that the buffer zones imposed a

significant restraint on the plaintiff’s ability to engage in

constitutionally-protected communication. Others support

Englewood’s position that the buffer zones hardly affected

plaintiff’s ability to reach her intended audience. Some facts

support plaintiff’s argument that the City had foregone less-

restrictive options to address the chaotic environment outside

of the clinic. Others show that Englewood considered these

options and reasonably rejected them or found them to be

ineffective.102 In short, the record does not conclusively

demonstrate that either party is entitled to summary judgment

on the narrow tailoring claim.

D. Overbreadth.

We also find that the District Court erred in finding that the

ordinance was overbroad. Englewood correctly argues that the

District Court’s reliance on McCullen was misplaced. There,

the Supreme Court explicitly stated that it did not “need [to]

consider [the] petitioners’ overbreadth challenge” because it

found that Massachusetts’s statute was not narrowly

tailored.103 In relying on McCullen, the District Court seems to

have conflated the narrow-tailoring analysis with the

overbreadth analysis.104 To support its conclusion that the

Ordinance was overbroad, the District Court stated: “To meet

the narrowly-tailored requirement, Defendant must create an

Ordinance that targets the exact wrong it seeks to remedy.”105

101

Id. at 357.

102

Turco characterized the “the unwillingness of witnesses to

come forward with complaints about criminal behavior [as] . .

. preeminently a matter of factual dispute” in her pleadings.

(Docket #45, 10).

103

McCullen, 573 U.S. at 496 n.9.

104

JA 11.

105

JA 11 (quoting Frisby v. Schultz, 487 U.S. 474, 485 (1988)

(“A statute is narrowly tailored if it targets and eliminates no

more than the exact source of the evil it seeks to remedy.”)).

22

Although overbreadth and narrow tailoring are related,106 the

Supreme Court has rejected the District Court’s assertion that

an Ordinance must precisely target the acts it was passed to

remedy.107

In Hill, the Supreme Court held that “[t]he fact that the

coverage of a statute is broader than the specific concern that

led to its enactment is of no constitutional significance. What

is important is that all persons entering or leaving health care

facilities share the interests served by the statute.”108 When a

buffer zone broadly applies to health care facilities, we may

conclude “the comprehensiveness of the statute is a virtue, not

a vice, because it is evidence against there being a

discriminatory governmental motive.”109

Bruni also discussed the plaintiffs’ allegation that the

statute was overbroad because it authorized creation of buffer

zones at non-abortion related locations.110 We declined to find

that the ordinance was facially unconstitutional without further

development in the record. We reiterated the Supreme Court’s

admonition in Hill that the comprehensiveness of a statute

demonstrates a lack of discriminatory motive and is not

constitutionally determinative.111 Ultimately, in Bruni we

concluded that we could not assess the breadth of the ordinance

absent a “well-supported conclusion” about how widely it

swept.112 We also reiterated the “broad principle of deference

to legislative judgments” and that a legislative body “need not

meticulously vet every less burdensome alternative.”113 This

principle is well-established in First Amendment

jurisprudence, and we are mindful of our duty to “accord a

106

See Bruni, 824 F.3d at 374 (“It is true that the breadth of

the challenged law plays a role in the narrow-tailoring

analysis of the Plaintiffs’ free speech claim.” (citations

omitted)).

107

Hill, 530 U.S. at 730–31.

108

Id.

109

Id. at 731.

110

Bruni, 824 F.3d at 373–74.

111

Hill, 530 U.S. at 731.

112

Bruni, 824 F.3d at 374.

113

Id. at 370 n.18.

23

measure of deference to the judgment” of Englewood city

council.114

We conclude that the District Court erred in granting

summary judgment because the ordinance was not overbroad.

Courts may not strike down a regulation as “overbroad unless

the overbreadth is substantial in relation to the [regulation’s]

plainly legitimate sweep.”115 The Supreme Court has

“vigorously enforced the requirement that a statute’s

overbreadth be substantial.”116 The hesitation to label a statute

overbroad arises from a court’s need to strike a balance

between competing social costs:

On the one hand, the threat of

enforcement of an overbroad law

deters people from engaging in

constitutionally protected speech,

inhibiting the free exchange of

ideas. On the other hand,

invalidating a law that in some of

its applications is perfectly

constitutional . . . has obvious

harmful effects.”117

“In determining whether a statute’s overbreadth is substantial,

we consider a statute’s application to real-world conduct, not

fanciful hypotheticals.”118 “[T]he overbreadth claimant bears

the burden of demonstrating, ‘from the text of [the law], and

from actual fact,’ that substantial overbreadth exists.”119

114

Hill, 530 U.S. at 727.

115

McCauley v. Univ. of the Virgin Islands, 618 F.3d 232,

241 (3d Cir. 2010) (alteration in original) (internal quotation

marks and citations omitted).

116

United States v. Stevens, 559 U.S. 460, 485 (2010)

(emphasis in original).

117

McCauley, 618 F.3d at 241 (quoting United States. v.

Williams, 553 U.S. 285, 292 (2008)).

118

Stevens, 559 U.S. at 485 (citations omitted).

119

Id. (alteration in original) (emphasis in original) (quoting

Virginia v. Hicks, 539 U.S. 113, 122 (2003)).

24

The same concern is present here. The record is

essentially devoid of any factual development concerning the

“legitimate sweep” of the buffer zones. We therefore “think it

unwise for us to assess the proper scope of the City’s

Ordinance without there first being a resolution of the merits

of the Plaintiffs’ free speech claim.”120 Accordingly, we will

also reverse the District Court’s grant of summary judgment on

grounds that the statute was overbroad.

III.

For the foregoing reasons, the District Court’s order granting

summary judgment is hereby reversed, and the case remanded

for proceedings consistent with this opinion.

120

Bruni, 824 F.3d at 374.

25