Petition for Writ of Certiorari — Frantz v. Gress

Wye dl aw ny we

FILED

Wisc 991203 HARP 7010

Bn The OFFICE OF THE CLERK

Supreme Court of the Gnited States

RAYMOND FRANTZ,

Petitioner,

ae

WILLIAM J. GRESS AND JOHN HANEJKO,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

PETITION FOR WRIT OF CERTIORARI

J. Michael Considine, Jr.

Counsel of Record

12 East Barnard Street, Suite 100

West Chester, PA 19382

(610) 431-3288

Participating Attorney for

The Rutherford Institute

John W. Whitehead

Douglas R. McKusick

THE RUTHERFORD INSTITUTE

1440 Sachem Place

Charlottesville, VA 22901

(434) 978-3888

Attorneys for the Petitioner

——————--

LANTAGNE LEGAL PRINTING

801 East Main Street Suite 100 Richmond, Virginta 23219 (800) 847-0477

QUESTIONS PRESENTED

1. Whether police may prevent a citizen from

engaging in First Amendment protected activity

upon a public sidewalk under a statute which grants

police the discretion to determine that the citizen’s

conduct renders the sidewalk “impassable without

unreasonable inconvenience or hazard” and there is

no narrowing judicial construction of the term

“unreasonable convenience or hazard.”

:. Whether a city ordinance which requires only

persons engaged in handbilling and other activity

protected by the First Amendment to remove litter

attributable to that activity, but does not impose a

similar requirement on _ persons’ engaged in

commercial activity which creates a greater litter

problem, violates the Equal Protection Clause of the

Fourteenth Amendment.

3. Whether a defendant who is an eyewitness to

events that are the basis of a complaint and has

intimate knowledge of the facts set forth in the

complaint should be deemed to have admitted facts

alleged in the complaint when the defendant answers

with only a general denial.

4. Since as a matter of law 3 persons standing

abreast cannot blockade a sidewalk while peacefully

protesting, where one person standing alone is

arrested for leafleting religious materials on a 139-

inch wide sidewalk, may judgment be entered on a

claim under the First Amendment?

ii

5. Was narrow tailoring exercised within a public

forum where police arrest for peaceful leafleting that

causes litter before taking less drastic alternatives

such as calling in other police, instructing

pedestrians where to walk or instructing that the

litter be picked up?

6. May the trial court fail to make findings of fact

as to why Petitioner was not credible where

Respondents contradicted prior testimony, how the

wide space was sufficiently impassable to support a

conviction, how there was narrow tailoring regarding

a police directive subject to strict scrutiny, why the

equal protection claim failed and why there was no

admission by general denial?

111

TABLE OF CONTENTS

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COP EERIE TEE SIEIEION cikstasvtenistesncictensssseeroasiniaie 1

STATEMENT OF JURISDICTION ..........0.000000 ee. 2

CONSTITUTIONAL AND STATUTORY

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REASONS FOR GRANTING THE PETITION........ 15

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I. The Petitioner’s First Amendment Rights Were

Violated Because He Was Prevented From Passing

Out Leaflets Under an Unconstitutionally Vague

IG ities cn pcncdncisacsteenseoresemesee ane eee 16

i. The City Code Provision Requiring That Only

Those Engaged in Expressive Activity Remove

Associated Litter From Streets and Sidewalks

Improperly Discriminates Against First Amendment

RTI iv cseiciceciindce eee 26

III. Respondent’s General Denial to Allegations in

the Complaint Should Have Resulted in Deemed

PIII Fo viisain oicciskstsscen ese 28

CGIAR ossicessonavnnsesivaitarcsns eed eee 30

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APPENDIX

Opinion of the U.S. Court of Appeals for

the Third Circuit Entered December 30,

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Memorandum and Order of the U.S.

District Court for the Eastern

District of Pennsylvania,

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TABLE OF AUTHORITIES

Cases

Capitol Square Review and Advisory Bd. v. Pinette,

ee aghast civics bnevsncpn nnehansncies 18

Carey v. Brown, 447 U.S. 445 (1980).....................0.. 27

Coates v. City of Cincinnati, 402 U.S. 611 (1971) ....21

Cox v. Loutstana, 379 U.S. 536 (1965)....18, 20, 21, 22

DeBoer v. Vill. of Oak Park, 267 F.3d 558 (7th Cir.

SNE gps eai ce ibaticna teu. ted Iba case catstsk ahtieeioMemenes 18

Dyourabchi v. Self, 240 F.R.D. 5 (D.D.C. 2006)........ 28

Frisby v. Schultz, 487 U.S. 474 (1988)...................... 17

Grayned v. City of Rockford, 408 U.S. 104

| TERN Sher tts re ene Rey eee AP 19, 25

Great White Life Assurance Company v. Levithan,

834 F. Supp. 858, 864-865 (E.D. Pa. 1993)............ 29

Jamison v. State of Tex. 318 U.S. 413 (1948).......... 17

McTernan v. City of York, 564 F.3d 636 (3% Cir. 2006)

Gpeuaeaendeapansaeuclsateucdiaceteconesiouside eis ae Te ee 23, 20

Pennsylvania v. Ripley, 833 A.2d 155 (Pa. Super.

REA AR Reece RRR Gono RONAN a SU IIE On? NerTeece 25

Police Department of Chicago v. Mosley, 408 U.S. 92

SE ried sick tectonic eteiniaataneee eae ae 28

Pulice v. Enciso, 39 Fed. Appx. 692 (34 Cir. 2002) ..25

Shuttlesworth v. City of Birmingham, 382 U.S. 87

SI isa sia siss conse sevcivagecacdumnaubcosedes aakestwasiadacne 20, 21

vl

Spitzer v. Operation Rescue National, 273 F.3d 184

sean in oa cosa tscelvareseendaceucccassweedaieves 25

Stromberg v. People of State of California, 283 U.S.

NT 711 ois seal a Cans asus Gh gues coasts neiaencayetaenensiaetintees 18

United States v. Grace, 461 U.S. 171 (1983)............. 17

Statutes

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Other Authorities

5 Wright & Miller, Federal Practice and Procedure,

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Philadelphia Code § 10-723.1.................... 3, 26, 27, 28

Rules

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IN THE

Supreme Court of the Anited States

No.

RAYMOND FRANTZ,

Petitioner,

V.

WILLIAM J. GRESS AND JOHN HANEJKO,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Third Circuit

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

The opinion of the court of appeals (Pet. App.,

infra, la-9a) is unreported. The opinion of the

United States District Court for the Eastern District

of Pennsylvania (Pet. App., infra, 10a-27a) is

unreported.

STATEMENT OF JURISDICTION

The judgment and opinion of the United States

Court of Appeals for the Third Circuit, which is the

subject of the instant Petition, was entered on

December 30, 2009. The jurisdiction of this Court is

invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS

The First Amendment to the United States

Constitution provides:

Congress shall make no law respecting an

establishment of religion, or prohibiting the

free exercise thereof; or abridging the freedom

of speech, or of the press; or the right of the

people peaceably to assemble, and to petition

the Government for redress of grievances.

The Fourth Amendment the United States

Constitution provides:

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not

be violated, an no warrants shall issue, but

upon probable cause, supported by oath or

affirmation, and particularly describing the

place to be searched, and the persons or things

to be seized.

ww

Title 18, Pa. Cons. Stat. § 5507(a) and (c),

provide:

(a) Obstructing.--A person, who, having no

legal privilege to do _ so, intentionally or

recklessly obstructs any highway, railroad

track or public utility right-of-way, sidewalk,

navigable waters, other public passage,

whether alone or with others, commits a

summary offense, or, in case he persists after

warning by a law officer, a misdemeanor of the

third degree. No person shall be deemed guilty

of an offense under this subsection solely

because of a gathering of persons to hear him

speak or otherwise communicate, or solely

because of being a member of such a

gathering.

(c) Definition.--As used in this section the

word “obstructs” means renders impassable

without unreasonable inconvenience’ or

hazard.

Philadelphia Code § 10-723.1 provides:

Every distributor, distribution business, or

person who distributes or causes to be

distributed commercial or non-commercial

handbills upon any public place within the

City, shall, at the end of the daily distribution,

clear or cause to be cleared any discarded

handbills within a one hundred foot radius of

the location where the handbills were

distributed.

STATEMENT OF THE CASE

Petitioner Raymond Frantz brought this

action in July 2006 in the United States District

Court for the Eastern District of Pennsylvania. The

complaint alleged that the Respondents, William J.

yress and John Hanejko, deprived Petitioner of his

rights under the First, Fourth and Fourteenth

Amendments and requested relief under 42 U.S.C. §

1983. The district court granted judgment in favor of

the defendants on all claims after a bench trial. Pet.

App. 10a-27a. Upon an appeal to the United States

Court of Appeals for the Third Circuit, the judgment

was affirmed. Pet. App. la-9a.

The action arises out of leafleting on the

sidewalks of the City of Philadelphia, activity which

is at the core of the protections granted by the First

Amendment and which was undertaken within a

traditional public forum. Petitioner, a window clerk

and dispatcher for the U.S. Postal Service in

Philadelphia for 27 years, began passing out

religious tracts in 1984 in a campaign for Jews for

Jesus and Jewish Outreach Partnership for the

Philadelphia Area. Petitioner is diligent in following

instructions he has received on how to leaflet: he

stands to the side of the public sidewalk so he will

not interfere with passage. A-186-188, 505.! Once or

twice a week, Petitioner passes out leaflets and

always in a spot where he will not impede traffic. He

has often passed out leaflets on the sidewalk at 9th

and Market Streets, where the sidewalk is 18-20 feet

wide. A-189-190, 276.

Petitioner never stands in the middle of the

sidewalk and does not approach people, which might

require them to walk around him. He stands to the

side because he knows that people will not take

tracts if he is in their way. Petitioner has followed

this procedure countless times since 1984. On the

nights in question in this case, Petitioner was giving

out a tract titled “Live in the Light”. Photographs in

the record show the sidewalk at 4'» and South

Streets where he stood. A-191-195, 506, 517-518.

Petitioner has regularly seen trash and

discarded papers around sidewalk vendors and stores

abutting city sidewalks. He has often observed this

when he leaflets and sees trash regularly in the area

around stores and sidewalk vendors. There is more

trash near stores and vendors than discarded

handbills on the sidewalks. A-200-202, 519.

A. April 2005 Arrest

On April 9, 2005, Petitioner was distributing

leaflets at the northeast corner of 46 and South

' References to “A-(number)” are to pages of the appendix

filed in the appeal to the Court of Appeals for the Third

Circuit.

Streets in Philadelphia near a Starbucks store. The

record shows that the measured width of the

sidewalk where he was standing was 139 inches (11

feet, 7 inches). In its ruling, the district court alluded

to the fact that the sidewalk was between 130 and

135 inches (about 11 feet). Pet. App. 10a. Although it

made no specific finding on this point, neither did the

court dispute that the width of the sidewalk was at

least 11 feet. As he was distributing tracts, no one

was unable to pass. Petitioner generally did not

speak to passersby, but occasionally did say “the

Word of God” or ”God’s word is free.”

As Petitioner was doing this, Respondent

Gress, a City of Philadelphia police officer,

approached and said “you can’t pass out these

handbills on South Street. . ., you don’t have the

right to do this, ... you have to get permission, .. .

people are throwing these on the ground. You are

creating a litter problem.” Petitioner stated that he

would pick up any leaflets that were on the ground

when he was done and before he left the area. Two

other officers then approached and, after speaking

with Gress, told Petitioner “you heard what he

[Gress] said” and told Petitioner “you will have to

leave.”

Petitioner then asked for Gress’s name and

badge number. As he reached to get a pen, Gress

said “what is that, a weapon?... Turn around.” The

officers then arrested Petitioner, searched him and,

at Gress’s direction, handcuffed Petitioner. Before

being handcuffed, Petitioner obtained Gress’s name

and badge number, but not the other officers’

identification. Petitioner was then transported to

the police station and remained in handcuffs for 45

minutes. He was released after 90 minutes. A-202-

213, 273-275. Petitioner’s arrest stopped him from

continuing to hand out tracts even though he wanted

to continue.

While Petitioner disputed Gress’s testimony

that Petitioner was standing in the middle of the

sidewalk at the time in question, even assuming

Gress was truthful, there was still at least four feet

of room on either side for people to walk by. No one

stopped or walked into the street as a result of

Petitioner's handbilling and people taking tracts

continued to move along the sidewalk. While

standing to the side, there was 9-10 feet of room on

the sidewalk for people to pass; if someone wanted to

get around the Petitioner there was sufficient room

for them to do so on the sidewalk. No one had to

change their path when they approached Petitioner

as he distributed his religious tracts.

In accosting the Petitioner, Gress said “[llook

at all the trash in the street because of you handing

out this literature.” Gress did not order Petitioner to

move to the side or asked if he was done handbilling

for the evening before the arrest.

Petitioner received a citation and paid $1,088.

in legal fees in defending the charge. At a May 26,

2005 hearing, the district attorney amended the

charges to include a charge of obstructing a sidewalk

under 18 Pa. Cons. Stat. § 5507(a). Petitioner was

found guilty of that charge and of violating

Philadelphia Code §10-723, which requires

handbillers to clean up discarded handbills when

they are finished. He was ordered to pay a fine and

costs of $168.81. On his appeal of this judgment to

the Commmon Pleas Court, all charges were

dismissed... A-111-114, 214-225, 274, 505.

B. June 2006 Incident

On June 18, 2006, Petitioner went to the same

location at 4 and South Streets in Philadelphia. As

he passed out leaflets, he stood to the side of the

sidewalk as shown by a picture in the record (Ex. P-

16).2. Pedestrian traffic was light and no one

complained he was obstructing the sidewalk.

At 1:15 a.m., Respondent MHanejko, a

Philadelphia police officer, approached Petitioner

and told him “you can’t hand out this literature on

South Street... at this location.” Henejko never told

Petitioner he was blocking traffic and there was no

crowd. Hanejko said “if you don’t leave you will be

arrested . . ., you can’t hand those out here.”

Petitioner showed his tracts to Hanejko and asked

for the officer’s name and badge number. Although

Petitioner desired to continue handing out religious

tracts, because of his prior experience and arrest, he

decided not to keep leafletting.

> “Ex.” references are to exhibits submitted in the district

court.

As with the 2005 incident, the Petitioner was

not in the middle of the sidewalk when Hanejko

approached. Petitioner was never told he was

blocking the sidewalk; instead, Hanejko stated that

Petitioner was “not allowed to hand out handbills” in

that spot. Again, even if Petitioner had been

standing in the middle of the sidewalk, there would

have been sufficient room for people to pass around

him on either side without being hindered in their

passage. On a later date, Frantz was handbilling at

2°4 and South Streets in the city, when he met

Hanejko, who stated, in reference to the June 18,

2006 incident, “[nJo hard feelings.” Petitioner took

this to mean that Hanejko did not mean to do what

he did. A-226-234, 280-282, 505.

As a result of these incidents, Petitioner now

fears being arrested and will cease handbilling if told

to by police, even if his activity is protected by the

First Amendment. In both the April 2005 and the

June 2006 instances, at the time Petitioner was told

to stop handing out religious tracts the pedestrian

traffic was moving and people were not unable to get

by him. A-233-239. After June 18, 2006, Frantz did

not return to South Street for six months and has

been back to handbill there only once since that time.

A-240-246.

At trial, a tape measure was stretched to 139

inches and Petitioner stood in the middle at 70

inches. On his right there was 65 inches of space,

and on his left, 62 inches. With his hand fully

extended, there was 42 to 43 inches on each side of

10

the Petitioner. His left hand extended would reach to

the 98 inch mark. Thus, there would have been

ample room for people to pass on either side: 64

inches to the right and 59 inches to the left. A-310-

315. In his testimony, Gress admitted that 48 inches

(four feet) would be sufficient room for an individual

to pass by someone handing out leaflets. A-334-339.

At no time were people unable to get by the

Petitioner on either night. Traffic moved by him the

entire time in the 42 to 64 inches of space available

on either side of Petitioner. A-233-239, 286-293, 306-

315. The citation nowhere states people were stopped

in the sidewalk. Between the building and Petitioner,

people were walking by eastbound and westbound,

not stopped. They were moving. They did not gather

around him.

Gress also admitted that the Petitioner was

cited for “his mannerism in how he handed out

tracts,” not solely for the littering. Moreover, Gress

never asked the Petitioner if he was finished

leafletting for the evening before the arrest and

never requested that Petitioner pick up dropped

leaflets, as would be required for a violation of

Philadelphia Code § 10-723.1. A-353-357. Gress also

did not dispute that the width of the sidewalk was

139 inches.

Tellingly, at the May 26, 2005 hearing on the

charges, Gress stated as follows: “I observed Frantz

fon] South Street in front of 347 ... handing out

pamphlets, .. .. walking up and down the sidewalk[.|

11

[T]he pamphlets were of religious material which is

prohibited.” A-358-363. Also, according to Gress,

under the obstructing highways statute, “[iJf their

passage was impeded .. [or] they had to alter their

passageway, that is obstructing the highway.”

In Gress’s opinion, it is an inconvenience if they had

to alter their path even slightly. A- 370-377. When

asked if people could have gotten around the

Petitioner without going into the street, Gress

replied “(s]jJome people could make it around

him, some could not. It’s not about what one

person did or was able to do. People were

inconvenienced.” A-378-384. Gress testified that if

persons were “inconvenienced or altered in their

route,” this was a sufficient reason for a citation to

be issued. A-391-394. Gress testified that “if

somebody is trying to walk down the sidewalk and he

is in front of him, that is obstructing their pathway.”

A-397-402.

Gress also had seen trash and wrappings

littered near street vendors and places where food is

sold many times and cited store owners for trash

within 100 feet of their store. He admitted there is a

problem with trash on sidewalks and in sewers other

than leaflets. A-394-397.

Concerning the June 18, 2006, incident

Hanejko told Petitioner he could not stand in the

middle of the sidewalk and obstruct traffic because

he could be arrested for obstruction of the highway if

he continued to hand out tracts in that manner.

Hanejko told Petitioner he could not stand in the

12

middle of the sidewalk but he could leaflet from the

side. A-428-437. He stated that groups walked in

both directions on the sidewalk; one group would

have to stop to let the other go by. Some had to go

around the Petitioner “in towards the street.” Twice

since this incident he saw Petitioner leafleting on the

side of the sidewalk at 294 and South Streets. Only

once was Petitioner standing in the middle of the

sidewalk. Hanejko asked Petitioner to move to the

side of the sidewalk and “explained to him what he

can and cannot do.” At Hanejko’s deposition, when

asked “did you ask him to move to either side of the

sidewalk?” he stated “no. I told him what he can and

can’t do. He became irate and just left.” “People

decided to walk around Frantz into the street.” A-

465-475, 505.

C. District Court Proceedings

The Petitioner filed an action under 42 U.S.C.

§ 1983 against Respondents arising out of these

incidents and alleging that Respondents had

deprived Petitioner of his rights under the First and

Fourth Amendments. Petitioner also alleged that

Philadelphia Code § 10-723, one basis for his arrest

in April 2005, is facially unconstitutional under the

Fourteenth Amendment’s Equal Protection Clause

because it requires handbillers engaged in activity

protected by the First Amendment to clean up

discarded handbills, but does not impose a similar

requirement upon vendors.

13

In the complaint as to Respondent Hanejko,

the Petitioner alleged (1) the sidewalk was over 130

inches wide, (2) that Hanejko told Petitioner he could

not leaflet there and that Petitioner must leave, and

(3) that at no time did the Petitioner blockade

pedestrian passage while resting against the fire

hydrant. Respondent Hanejko’s answer included a

general denial and indicated he did not have

sufficient information to confirm or deny the

averments. A-143, 154.

After a bench trial, the district court entered

findings of fact and conclusions of law. Pet. App.

14a-26a. It determined that the Petitioner’s

handbilling was activity protected by the First

Amendment. Pet. App. 19a. However, as to the

April 2005 incident involving Gress, the court found

that the Petitioner had been properly requested to

move from the middle of the sidewalk “so as not to

impede pedestrian traffic.” Pet. App. 22a. It found

that the Petitioner had refused to comply with this

request, and so Gress had probable cause to arrest

the Petitioner. Pet. App. 23a.

As to the June 2006 incident involving

Hanejko, the district court concluded that the

Petitioner had not been seized in violation of the

Fourth Amendment, Pet. App. 24a, but did not

address the restriction on the Petitioner’s First

Amendment rights’ arising from Hanejko’s

instruction that the Petitioner move from where he

was distributing handbills.

14

The district court also rejected Petitioner’s

equal protection challenge to Philadelphia Code § 10-

723, holding that Petitioner had failed to present

sufficient evidence at tral on this claim. Pet. App.

26a. There were no trial court findings of fact as to

the equal protection claim, or how traffic could have

been blockaded with 40 to 50 inches of space on

either side and traffic was moving, or how narrow

tailoring took place when no option but arrest

attempted.

D. Court of Appeals Proceedings

An appeal of the district court judgment was

timely brought before the Court of Appeals for the

Third Circuit, which affirmed. It first held that

Gress had probable cause to arrest the Petitioner

after Petitioner did not move in response to Gress’s

requests that Petitioner not stand in the middle of

the sidewalk. Pet. App. 5a. It also upheld the

district court’s judgment. on the Petitioner’s First

Amendment claim, ruling that the _ restrictions

imposed by Gress and Hanejko upon Petitioner’s

handbilling constituted a non-content based

restriction on speech subject to intermediate

scrutiny. Because the restrictions served a

significant government interest (which the court did

not identify) and left open to Petitioner other options

for communication, the _ restrictions survived

intermediate scrutiny. Pet. App. 7a. The court also

affirmed the district court’s conclusion — that

Philadelphia Code § 10-723 did not violate the

15

guarantee to equal protection of the law. Pet. App.

7a-8a.

The court of appeals also rejected Petitioner’s

argument that Hanejko should have been deemed to

have admitted Petitioner’s averments concerning the

June 18, 2006 incident by responding to the

allegations with a general denial. The court of

appeals held that it would not consider this

argument because Petitioner did not seek to exclude

Hanejko’s testimony. Pet. App. 8a.

REASONS FOR GRANTING THE PETITION

In rejecting the claims of the Petitioner, the

courts below allowed the enforcement of state and

local laws that are in clear opposition to the

fundamental and supreme law of the land as set

forth in the United States Constitution and as

articulated in this Court’s precedent. The rulings

upheld the enforcement of a patently vague and

indefinite law that was used to prevent a citizen from

exercising his First Amendment rights within a

traditional public forum. This Court has made clear

that laws may not be so indefinite as to leave to

police the unfettered discretion as to who may and

may not exercise the right of free speech. Yet the

decisions below upheld the application of a law which

allowed the Respondent police officers to determine

whether Petitioner’s mere presence on a sidewalk

constituted an “unreasonable inconvenience’ or

hazard.”

16

Moreover, in upholding the actions of the

Respondents, the court of appeals refused _ to

recognize that before silencing a person peaceably

exercising their First Amendment rights, police must

attempt to control the actions of third parties that

may cause a public disruption. As such, it has placed

itself in conflict with the decisions of other circuit

courts, see Glasson v. Louisville, 518 F.2d 899, 906

(6% Cir. 1975) and Sellers v. Johnson, 163 F.2d 877

(8th Cir. 1947), further justifying the issuance of a

writ of certiorari in this case.

The judgment below also conflicts with

established precedent holding that the government

may not treat expressive activities less favorably

than similar activities that are not expressive. Here,

the courts below upheld a city ordinance that

imposes burdens upon leafletting activities on city

sidewalks but did not impose a similar burden on

non-communicative activities on sidewalks. The

Equal Protection Clause forbids this kind of unequal

treatment.

ARGUMENT

# The Petitioner’s First Amendment Rights

Were Violated Because He Was Prevented

From Passing Out Leaflets Under an

Unconstitutionally Vague Statute

17

It was never disputed in this case that the

activity the Petitioner was engaged in when arrested

by Respondent Gress and ordered to move along by

Respondent Hanejko was expressive activity at the

core of the protections afforded by the Free Speech

Clause of the First Amendment. Pet. App. 6a-7a,

19a-20a. Long ago, this Court established that “one

who is rightfully on a street which the state has left

open to the public carries with him there as

elsewhere the constitutional right to express his

views in an orderly fashion. This right extends to the

communication of ideas by handbills and literature

as well as by the spoken word.” Jamison v. State of

Tex., 318 U.S. 413, 416 (1943). <A fundamental

premise to the guarantees of the First Amendment is

that “public streets and sidewalks have been used for

public assembly and debate” and are “the hallmarks

of a traditional public forum.” Frisby v. Schultz, 487

U.S. 474, 480 (1988). See also United States v. Grace,

461 U.S. 171, 177 (1983) (sidewalk in front of U.S.

Supreme Court is a traditional public forum where

the government’s ability to restrict expression is very

limited).

Moreover, when the speech at issue is

religious expression, such as the Petitioner was

prevented from engaging in, this Court has examined

restrictions with particular care given the historic

protections afforded religious speech. “Our precedent

establishes that private religious speech, far from

being a First Amendment orphan, is as _ fully

protected under the Free Speech Clause as secular

private expression. ... Indeed, in Anglo-American

18

history, at least, government suppression of speech

has so commonly been directed precisely at religious

speech that a free-speech clause without religion

would be Hamlet without the prince. Accordingly, we

have not excluded from free-speech protections

religious proselytizing|[.]” Capitol Square Review and

Aduisory Bd. v. Pinette, 515 U.S. 753, 760 (1995)

(emphasis in original). Accord DeBoer v. Vill. of Oak

Park, 267 F.3d 558, 570 (7th Cir. 2001) (speech

addressing religious matters is speech of the highest

constitutional order).

When action is taken by governmental actors

to restrict expression within a traditional public

forum, such as the City of Philadelphia sidewalk at

issue in this case, courts must act with vigilance in

assuring that the power has been exercised in a

manner consistent with the constitution.

Particularly in the case of a law used to restrict

speech activities, it must be clear that the law which

is used to justify the restriction is not unduly vague;

it must provide sufficient standards to alert citizens

to what conduct is proscribe and must limit the

discretion of enforcement officials. “Maintenance of

the opportunity for free political discussion is a basic

tenet of our constitutional democracy... . ‘A statute

which upon its face, and as_ authoritatively

construed, is so vague and indefinite as to permit the

punishment of the fair use of this opportunity is

repugnant to the guaranty of liberty contained in the

Fourteenth Amendment.” Cox v. Louisiana, 379

U.S. 536, 552 (1965) (quoting Stromberg v. People of

State of California, 283 U.S. 359, 369 (1931)).

In Grayned v. City of Rockford, 408 U.S. 104,

108-09 (1972) (footnotes omitted and citations

omitted), this Court identified the policies behind the

constitutional requirement that laws be sufficiently

definite:

Vague laws offend several important

values. First, because we assume that

man is free to steer between lawful and

unlawful conduct, we insist that laws

give the person of ordinary intelligence

a reasonable opportunity to know what

is prohibited, so that he may act

accordingly. Vague laws may trap the

innocent by not providing fair warning.

Second, if arbitrary and discriminatory

enforcement is to be prevented, laws

must provide explicit standards for

those who apply them. A vague law

impermissibly delegates basic policy

matters to policemen, judges, and juries

for resolution on an ad hoc and

subjective basis, with the attendant

dangers of arbitrary and discriminatory

application. Third, but related, where a

vague statute “abut(s) upon sensitive

areas of basic First Amendment

freedoms,” it “operates to inhibit the

exercise of (those) freedoms.” Uncertain

meanings inevitably lead citizens to

“steer far wider of the unlawful zone”. . .

20

than if the boundaries of the forbidden

areas were clearly marked.

Criticizing the vagueness of a law that prohibited

loitering on a sidewalk so as to obstruct the free

passage of pedestrians, this Court in Shuttlesworth

v. City of Birmingham, 382 U.S. 87 (1965),

commented that “(t]he constitutional vice of so broad

a provision needs no demonstration. It ‘does not

provide for government by clearly defined laws, but

rather for government by the moment-to-moment

opinions of a policeman on his beat.” Jd. at 90

(quoting Cox, 379 U.S. at 579 (Black, J., concurring

in part and dissenting in part)).

The delegation of unfettered, standardless

discretion is precisely the vice of the Pennsylvania

statute under which the Petitioner’s right to free

speech was infringed upon by the Respondents. The

obstruction statute, 18 Pa. Cons. Stat. § 5507(a),

addresses a problem that is certainly within the

power of the government to regulate, but does so ina

manner that leaves to the discretion of police, such

as the Respondents, the ability to decide whether a

persons has engaged in “obstruction.” This is a

direct result of the definition of “obstruct”, which as

used in § 5501(a) “means renders impassable without

unreasonable inconvenience or hazard.” 18 Pa. Cons.

Stat. § 5507(c). What is “unreasonable” is left wholly

to the whim and caprice of the police officer on the

beat. Indeed, there has been no _ narrowing

construction on this provision such that a limit on

the discretion of officials could be implied. Compare

21

Shuttlesworth, 382 U.S. at 91 (unduly vague loitering

statute may be saved by “explicitly narrowed

construction” of an appellate court).

Section 5507 is little different from the

ordinance found unconstitutional in Coates v. City of

Cincinnati, 402 U.S. 611 (1971), which prohibited

persons from assembling on _ sidewalks and

conducting themselves in a manner “annoying to

persons passing by.” In striking down the statute,

this Court stressed the effect it had on First

Amendment rights, because it was applicable to the

ability of persons to assemble and associate in a

traditional public forum. /d. at 615. “In our

opinion,” the Court wrote, “this ordinance is

unconstitutionally vague because it subjects the

exercise of the right of assembly to an

unascertainable standard, and unconstitutionally

broad because it authorizes the punishment of

constitutionally protected conduct.” Jd. at 614.

While the Court agreed that the city had the

authority to prevent and punish obstructions of the

sidewalk and similar anti-social conduct, “[i]t cannot

constitutionally do so through the enactment and

enforcement of an ordinance whose violation may

entirely depend upon whether or not a policeman is

annoyed.” Jd.

Similarly, in Cox v. State of Louisiana, supra,

this Court reversed a conviction under a statute

prohibiting obstruction of public passages, where it

was shown that officials allowed some persons to use

passages for the kind of constitutionally-protected

22

demonstration engaged in by the Petitioner and for

which he was convicted. After noting that there was

nothing in the statute delineating which

demonstrations are allowable and which are not, the

Court held that

[i]t is clearly unconstitutional to enable

a public official to determine which

expressions of view will be permitted

and which will not or to engage in

invidious discrimination among persons

or groups either by use of a statute

providing a system of broad

discretionary licensing power or, as in

this case, the equivalent of such a

system by selective enforcement of an

extremely broad prohibitory statute.

Cox, 379 U.S. at 557-58.

The circumstances of the instant case provide

a stark illustration of the vagueness problem

presented by the “unreasonable inconvenience”

standard of 18 Pa. Cons. Stat. § 5507(a) and (c).

While Petitioner denied that, as alleged by the

Respondents, that he was standing in the middle of

the sidewalk, even if that were true there was still

plenty of room for persons to pass by the Petitioner

while he handed out his tracts. The actions taken by

the Respondents also cannot be justified on the basis

that Petitioner created an unreasonable “hazard”

because the evidence below showed that the abutting

street was blocked to vehicular traffic so there was

23

no risk in walking into the street. A-253. Indeed,

police orders on the sidewalk are subject to strict

scrutiny, not intermediate scrutiny. McTernan uv.

City of York, 564 F. 3d 636 (3 Cir. 2006). No less

drastic effort to resolve any “obstruction,” such as

asking people to keep moving or stay out of the street

was attempted: only arrest was attempted because

“that’s not my responsibility to make sure they can

get around him.” Gress made no effort to keep traffic

moving. A-385-390, 505.

It was undisputed that the sidewalk where the

Petitioner was handbilling was at least 11 feet wide.

Pet. App. 10a. If a person stands in the middle of the

sidewalk, this allows at least four feet on either side

to pass. This is clearly plenty of room for a person to

have walked past the Petitioner without being

obstructed. Yet these Respondents, given the

unfettered and standardless authority to determine

what constitutes “unreasonable inconvenience,”

deemed that the Petitioner was in violation of §

5507(a) and so prohibited him from engaging in

further expression.

Indeed, in his concurrence in Shuttlesworth,

382 U.S. at 95-96, Justice Douglas pointed out that,

by definition and as a matter of law, a single person

being present on a_ sidewalk cannot constitute

“obstruction.” “The ordinance, as it has been

construed by the Alabama Court of Appeals, has

been held to apply only to one who continues to block

a sidewalk after a police warning to move. ... There

was no such ‘obstructing’ here, unless petitioner’s

24

presence on the street was itself enough.”

Shuttlesworth, 382 U.S. at 96 (Douglas, J.,

concurring) (citations omitted). Shuttlesworth

indicates that as a matter of law, three persons

present on a_e sidewalk cannot constitute an

obstruction. By the same token, the Petitioner's

presence on the sidewalk, where there was fully 42

inches on either side for persons to pass by, could not

have been an obstruction and was only deemed as

such because of the unfettered discretion granted to

police officers by the statute at issue.

It also is telling that Gress stated in previous

testimony that the statute bars any standing in the

middle of the sidewalk (regardless of actual

obstruction), A-340-352, he deemed there to be a

violation of this statute if a person’s “passage was

impede .. . for] they had to alter their

passageway, that is obstructing the highway.”

He also described a violation as occurring if persons

“had to alter their path slightly.” A- 370-377. Gress

testified that “if somebody is trying to walk down the

sidewalk and he is in front of him, that is obstructing

their pathway.” A-397-402. In sum, he deemed that

the Petitioner was violating the statute because some

“[pleople were inconvenienced.” A-378-384. Gress

testified that if persons were “inconvenienced or

altered in their route,” this was a sufficient reason

for a citation to be issued. A-391-394. Clearly,

Respondent Gress had a view of “unreasonable

inconvenience and hazard” that was entirely too

broad and_ resulted in the _ suppression of

constitutionally protected expression.

25

“Renders impassable without unreasonable

inconvenience or hazard” must be limited, where

expressive activity occurs, to include _ actual

prevention of passage, Pulice v. Enciso, 39 Fed. Appx.

692 (34 Cir. 2002), intent to obstruct, Pennsylvania

v. Ripley, 833 A.2d 155, 161-162 (Pa. Super. 2003), a

compelling actual safety hazard, McTernan v. City of

York, 564 F.3d 636 (3 Cir. 2006) or 2 traffic

accidents, Spitzer v. Operation Rescue Nationai, 273

F.3d 184 (254 Cir. 2001). Otherwise, the discretion of

police is unfettered.

Prevention of this kind of abuse of power at

the expense of the exercise of fundamental liberties

is precisely the goal of this Court’s vagueness

doctrine. Police must not be allowed to act in an

arbitrary manner when they have the power to

determine who may and who may not exercise First

Amendment rights. Grayned, 408 U.S. at 108.

Indeed, § 5507(a) itself evinces a legislative intent

that expressive activity must be protected, by

providing that a person is not to be deemed in

violation of the statute simply because a crowd

gathers as the person engages in activity protected

by the First Amendment. The Petitioner’s arrest by

Respondent Gress and warning from Respondent

Hanejko pursuant to the unduly vague provisions of

18 Pa. Const. Stat. § 5507 deprived the Petitioner of

his rights under the First Amendment’s Free Speech

Clause. The lower courts’ decisions on that no such

deprivation occurred is contrary to this Court’s

26

established precedent and a writ of certiorari should

issue to reverse and correct the judgment below.

II. The City Code Provision Requiring That

Only Those Engaged in Expressive

Activity Remove Associated Litter From

Streets and Sidewalks Improperly

Discriminates Against First Amendment

Activities

The Petitioner also was’ arrested ' by

Respondent Gress under Philadelphia Code § 10-

723.1, which requires every “person who distributes

or causes to be distributed commercial or non-

commercial handbills upon any public place within

the City, shall, at the end of the daily distribution,

clear or cause to be cleared any discarded handbills

within a one hundred foot radius of the location

where the handbills were distributed.” By its terms,

this anti-litter ordinance only requires’ that

handbillers, i.e., persons who engage in either

commercial or non-commercial speech, on_ the

sidewalks of the City to clean up trash caused by this

activity.

This is so notwithstanding the plain fact that

enterprises that are not engaged in expressive

activity cause similar litter problems. Indeed, Gress

admitted as much. The records contains his

statements that he often had seen trash and

wrappings littered near street vendors and places

where food is sold many times and that there is a

27

problem with trash on sidewalks and in sewers other

than leaflets. A-394-397. Yet, City Code § 10-723.1

imposes only upon handbillers the obligation to

police the area around their activity when their

activity is finished.

It also is significant that all summary

arrestees on South Street are handcuffed if they

leaflet noncommercial leaflets, but are issued

citations if it is a store causing trash on sidewalks.

Gress told the latter to pick up trash _ before

arresting, but not Petitioner. A-394-397, 403-410,

453-457. Gress immediately arrests all leafletters if

there is littering nearby. Under this zero tolerance

policy, if there was littering and the leafletter was

present nearby he would be cited as they must

maintain their area. A-340-352. Furthermore, Gress

never asked if Frantz was through leafleting for the

evening, even though Philadelphia Code §10-723

requires this before citations.

As such, § 10-723.1 imposes a special burden

upon the exercise of expressive activity in violation of

the Fourteenth Amendment’s guarantee to equal

protection of the law. In Carey v. Brown, 447 US.

445 (1980), this Court struck down an ordinance that

drew a distinction between labor picketing, which

was allowed, and other peaceful picketing as

violative of the Equal Protection Clause. “When

government regulation discriminates among speech-

related activities in a public forum, the Equal

Protection Clause mandates that the legislation be

finely tailored to serve substaritial state interests,

28

and the justifications offered for any distinctions it

draws must be carefully scrutinized.” Carey, 447

U.S. at 461-462 (citing Police Department of Chicago

v. Mosley, 408 U.S. 92, 98-99 (1972)). Indeed, the

discrimination at issue here is even more pernicious

because § 10-723.1 singles out expressive activity for

a special burden.

No justification for the distinction made by §

10-723.1 was suggested in the courts below, much

less one that is finely-tailored and serves a

substantial interest. To the contrary, the district

court failed to conduct any factfinding on Petitioner’s

equal protections claim, Pet. App. 26a, while the

court of appeals failed to appreciate’ the

discriminatory distinction at issue. Pet. App. 7a-8a.

Because this burden on expressive activity alone was

not shown to be justified, the courts below should

have struck down the law as unconstitutional.

Ill. Respondent’s General Denial to

Allegations in the Complaint Should

Have Resulted in Deemed Admissions

Respondent Hanejko’s general denial of facts

in his pleading as to an incident to which he was an

eyewitness and had vast knowledge was insufficient.

Where the matter alleged is obviously one as to

which a defendant had intimate knowledge or

information, a general denial if not supplemented

should be deemed an admission of the facts alleged.

Djourabchi v. Self, 240 F.R.D. 5 (D.D.C. 2006); Great

29

White Life Assurance Company v. Levithan, 834 F.

Supp. 858, 864-865 (E.D. Pa. 1993); 5 Wright &

Miller, Federal Practice and Procedure, Civil 2d,

§1263 at 393 (1990); Fed. R. Civ. P. 8(b).

Hanejko admitted he encountered Petitioner

on June 18, 2008, but did not specifically deny (1) the

sidewalk was over 130 inches wide, (2) that he told

Petitioner he could not leaflet there and to leave, and

(3) at all times Petitioner did not blockade pedestrian

passage while resting against the fire hydrant;

Hanejko gave only a general denial that he did not

have sufficient information to confirm or deny the

averments. A-143 & 154. When asked in an

interrogatory for details about the incident, including

the time, date, and location, Hanejko again simply

admitted the general encounter occurred, but

reserved his right to supplement his response by way

of deposition testimony. A-120. This general denial

was insufficient in light of his intimate knowledge of

the incident and the averments, which included the

width of the sidewalk and that Hanejko told

Petitioner he could not leaflet in a public forum,

should have been deemed admitted. The failure of

the lower courts to rule for Petitioner on this point

was prejudicial error and _ requires that’ the

judgments below be reversed.

30

CONCLUSION

For the reasons set forth above, the Petitioner

respectfully requests that a writ of certiorari should

be granted in this case.

Respectfully submitted,

J. Michael Considine, Jr.

Counsel of Record

12 East Barnard Street

Suite 100

West Chester, PA 19382

(610) 431-3288

Participating Attorney for

The Rutherford Institute

John W. Whitehead

Douglas R. McKusick

The Rutherford Institute

1440 Sachem Place

Charlottesville, VA 22901

(434) 978-3888

Attorneys for the Petitioner

No.

$n The

Supreme Court of the Cnited States

RAYMOND FRANTZ,

Petitioner,

Vv.

WILLIAM J. GRESS AND JOHN HANEJKO,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

APPENDIX

J. Michael Considine, Jr.

Counsel of Record

12 East Barnard Street, Suite 100

West Chester, PA 19382

(610) 431-3288

Participating Attorney for

The Rutherford Institute

John W. Whitehead

Douglas R. McKusick

THE RUTHERFORD INSTITUTE

1440 Sachem Place

Charlottesville, VA 22901

(434) 978-3888

Attorneys for the Petitioner

LANTAGNE LEGAL PRINTING

8OI East Main Street Suite 100 Richmond, Virginia 23219 (BOO) 847-0477

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS,

THIRD CIRCUIT

NO. 08-4385

RAYMOND FRANTZ,

Appellant

Vv.

WILLIAM J. GRESS; JOHN HANEJKO

Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil Action No. 2-06-cv-03210)

District Judge: Honorable Petrese B. Tucker

Submitted Under Third Circuit LAR 34.1(a)

October 1, 2009

Before AMBRO, GARTH, and ROTH Circuit Judges

(Opinion Filed: Dec. 30, 2009)

OPINION

2a

AMBRO, Circuit Judge

Raymond Frantz appeals the judgment of the

District Court against him and in favor of the

defendants, Philadelphia Police Officers William G.

Gress and John Hanejko.! As we discern no error in

the findings of fact and conclusions of law entered by

the District Court, we affirm.

I.

Frantz filed a complaint in July 2006 against

Gress and Hanejko, alleging violations of his First

and Fourth Amendment rights, malicious

prosecution, and the unconstitutionality under the

Equal Protection Clause of §§ 10-723 and 723.1 of the

Philadelphia Code. Frantz has been distributing

religious tracts since 1984 with an _ outreach

campaign for Jews for Jesus and Jewish Outreach

Partnership for the Philadelphia Area, and he bases

his complaint on two specific incidents that occurred

while he was attempting to distribute his leaflets at

the corner of Fourth and South Streets in

Philadelphia.

The first incident occurred on April 9, 2005.

According to Frantz, he was standing close to the

! Frantz’s initial complaint named as a defendant “Officer

Anenko,” but the District Court granted Frantz's unopposed

motion for leave to file an amended complaint replacing

“Officer Anenko,” who does not exist, with the proper officer,

Officer Hanejko.

3a

curb, not blocking pedestrian passage, when Officer

Gress told Frantz that he could not pass out

handbills and that he was creating a litter problem.

Gress, in contrast, testified that Frantz was standing

in the middle of the sidewalk, causing pedestrians

either to walk into the street or get “shoved up

against” the wall. Gress informed Frantz he could not

hand out leaflets. When Gress realized Frantz was

distributing religious leaflets, for which a license is

not required, Gress instead asked Frantz to move

nearer to the curb to avoid obstructing the pathway.

Frantz refused to comply after two orders.

Frantz was arrested and taken to the police

station. Gress issued a citation for improper

distribution of handbills, in violation of Philadelphia

Code § 10-723.2 The District Attorney later amended

the charges to include “Obstructing the Highway”

under 18 Pa. Cons. Stat. § 5507.5 Frantz was found

2 This section concerns distribution of commercial and non-

commercial handbills on sidewalks, streets, and private

property. Section 10-723.1 of the Code states:

Every distributor, distribution business, or

person who distributes or causes to be

distributed commercial or non-commercial

handbills upon any public place within the

City, shall, at the end of the daily

distribution, clear or cause to be cleared any

discarded handbills within a one hundred foot

radius of the location where the handbills

were distributed.

’ The crime of obstructing highways and other public

passages in Pennsylvania is defined as follows:

4a

guilty in Municipal Court of violating § 10-723, but

Frantz testified that the charges against him were

dismissed at the Common Pleas level.

On June 18, 2006, Frantz testified that he was

standing near the curb at the same location when

Officer Hanejko told Frantz he could not hand out

literature and threatened to arrest him if he did not

leave. Officer Hanejko testified that Frantz was not

near the curb but was standing in the middle of the

sidewalk, causing pedestrians either to veer into the

street or run into the wall to pass him. Hanejko

further testified that he did not tell Frantz he could

not hand out literature, but instead informed him

that he could be arrested for obstruction of the

highway if he did not move to the side so as not to

obstruct pedestrian traffic. Frantz grew angry and

left.

After the District Court denied Frantz’s

motion for summary judgment, the case proceeded to

a two-day bench trial. In June 2008, the District

A person, who, having no legal privilege to do

so, intentionally or recklessly obstructs any

highway, railroad track or public utility rght-

of-way, sidewalk, navigable waters, other

public passage, whether alone or with others,

commits a summary offense, or, in case he

persists after warning by a law officer, a

misdemeanor of the third degree.

18 Pa. Cons. Stat. § 5507(a). The term obstructs “means

renders impassable without unreasonable inconvenience or

hazard.” Id. § 5507(c).

5a

Court issued Findings of Fact and Conclusions of

Law and entered judgment on all claims for Officers

Gress and Hanejko. Frantz timely appealed.‘

II

The District Court had jurisdiction over this

case pursuant to 28 U.S.C. § 1331, and we have

jurisdiction of this appeal pursuant to 28 U.S.C. §

1291.

This case comes to us after a non-jury trial. We

review a District Court’s findings of fact for clear

error and its conclusions of law de novo. Henglein uv.

Colt Indus. Operating Corp., 260 F.3d 201, 208 (3d

Cir.2001). “We review credibility determinations, like

other factual findings, under a clearly erroneous

standard.” Grider v. Keystone Health Plan Cent., Inc.,

580 F.3d 119, 137 (38d Cir.2009).

Ill

Frantz challenged his 2005 arrest on Fourth

Amendment grounds, contending that it was not

supported by probable cause. However, Gress had

probable cause to arrest Frantz when he refused

Gress’s repeated requests to move from the middle of

4 Frantz does not appear to challenge the District Court’s

finding in favor of the defendants on his malicious

prosecution claim. In any event, we find no error in the

District Court’s ruling on this claim, as probable cause

existed for Frantz's arrest.

6a

the sidewalk where he was obstructing the flow of

pedestrian traffic. Therefore, the District Court

properly found that Frantz’s claim fails.6 Frantz’s

Fourth Amendment claim based on the 2006

encounter with Hanejko also fails, as we agree with

the District Court that Frantz was not seized and

therefore cannot show a violation of the Fourth

Amendment.

Frantz also challenged the two incidents on

First Amendment grounds. While “spreading one’s

religious beliefs or preaching the Gospel through

distribution of religious literature ... is an age-old

type of evangelism with as high a claim to

constitutional protection as the more orthodox types,”

Murdock v. Pennsylvania, 319 U.S. 105, 110 (1943),

the Government may impose reasonable restrictions

5 We accept the District Court’s findings of fact on this

issue, as they are not clearly erroneous and are supported by

the officers’ testimony. Frantz spends much of his brief

arguing that he could not have interrupted pedestrian traffic

given the width of the sidewalk. Whatever the sidewalk’s

precise measurements, the District Court credited the

officers’ testimony that pedestrians were forced against the

wall or into the road because of Frantz’s location on the

sidewalk, and we will not disturb this determination. See

Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985)

(“Where there are two permissible views of the evidence, the

factfinder’s choice between them cannot be _ clearly

erroneous.”).

6 While Gress initially issued a citation for a violation of

the Philadelphia leafleting ordinance, with the obstructing

violation added later by the District Attorney, “[pJrobable

cause need only exist as to any offense that could be charged

under the circumstances.” Barna v. City of Perth Amboy, 42

F.3d 809, 819 (3d Cir.1994).

Ta

on the time, place, and manner of speech. See

McTernan v. City of York, 564 F.3d 636, 646 (3d

Cir.2009). The District Court found that Gress and

Hanejko merely ordered Frantz to move from the

middle of the sidewalk, nearer to the curb, so that

pedestrians would not be forced to walk into the

street or the wall. They did not order Frantz to leave

or stop leafleting.

Where speech in a traditional public forum is

limited without reference to the subject matter or

viewpoint of the speech, as in this case, the

challenged restriction is subject to intermediate

scrutiny, and must be narrowly tailored to serve a

significant governmental interest and leave open

options for communication of information. Jd. The

District Court properly concluded this restriction

survived intermediate scrutiny. Even under

heightened scrutiny, which imposes a more stringent

“narrowing” requirement than intermediate scrutiny,

the officers' orders that Frantz move closer to the

curb burdened his speech no more than was

necessary. See id. at 655 (applying heightened

scruiiny to a police directive issued by officers in the

field).

Frantz sought to challenge on equal protection

grounds the validity of §§ 10-723 and 723.1(1) of the

Philadelphia Code, which require handbillers to clear

discarded handbills at the end of daily distribution,

because the statute does not require commercial

vendors to clear litter they generate. However,

commercial vendors are not similarly situated to

8a

handbillers (and indeed are covered by different

sections of the code). The sections challenged by

Frantz apply to commercial and non-commercial

handbillers. See Phila. Code § 10-723.1' (requiring

“felvery distributor, distribution business, or person

who distributes or causes to be distributed

commercial or non-commercial handbills upon any

public place within the City” to dispose of them at the

end of the day). Accordingly, Frantz’s equal

protection claim fails.

Frantz also claims that Hanejko “admitted”

Frantz's version of critical events in his answer to the

Amended Complaint and his interrogatory responses.

Specifically, Frantz asserts that Hanejko improperly

failed to deny certain facts in the complaint and

should have been barred from testifying to any facts

not contained in his interrogatory responses. Because

Frantz did not seek to exclude Hanejko’s testimony

at trial, we do not consider this belated argument.’

In any event, such a sanction likely would not have

been appropriate. See Quinn v. Consol. Freightways

Corp. of Delaware, 283 F.3d 572, 576 (3d Cir.2002)

(“The exclusion of critical evidence is an extreme

sanction, not normally to be imposed absent a

showing of willful deception or flagrant disregard of a

court order by the proponent of the evidence.”)

(quotation marks, citation, and alteration omitted).

7 Before trial, Frantz moved to compel an additional

response to the interrogatory requesting details from

Hanejko on the 2006 incident. The District Court denied this

request, and Frantz did not seek to revisit this ruling at trial

or preclude Hanejko from testifying.

9a

Frantz also claims that the allegations in his

Second Amended Complaint should be deemed

“admitted” due to the officers’ “failure” to file an

Answer to that pleading. This argument is frivolous.

Frantz filed his Second Amended Complaint after the

bench trial to add the first name of Officer Hanejko

and clarify that each defendant was sued in his

individual capacity.

* * * *

We thus affirm the judgment of the District

Court.

10a

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT

OF PENNSYLVANIA

RAYMOND FRANTZ

Plaintiff,

Vv. : CIVIL ACTION

: NO. 06-3210

WILLIAM J. GRESS, ET AL. :

Defendants. :

Tucker, J. June 10, 2008

MEMORANDUM & ORDER

Plaintiff Raymond Frantz brings this action

pursuant to § 1983, alleging violations of his First

and Fourth Amendment rights, violations of 18 PA.

CONS. STAT. ANN. § 5507(a)(2), and malicious

prosecution. Plaintiff also brings an Equal Protection

challenge as to the facial unconstitutionality of §§ 10-

723, 10-723.1(1) of the Philadelphia Code because the

statute treats handbillers differently than vendors of

materials, products, or foods.

Specifically, Plaintiff alleges that he was

leafleting religious materials at 347 South Street,

Philadelphia, Pennsylvania on Saturday, April 9,

2005 around 11:45 p.m. Plaintiff maintains that the

sidewalk was 130-135 inches wide and that he was

standing within 1-1 % feet of the street side edge of

the sidewalk. Plaintiff states that he was not

lla

blocking pedestrian passage, did not give materials to

passersby who indicated they did not want them,

avoided arguments with passersby, cleaned up the

area of distribution at the end of his leafleting, and

was respectful and peaceful to all members of the

public.

According to Plaintiff, Defendant Police Officer

William J. Gress arrested and cited Plaintiff, without

probable cause, for violation of Philadelphia Code

Section 10-723, Distribution of Commercial & Non-

Commercial handbills on sidewalks, streets and

private property, for failing to clean up handbills

daily at the end of the day within a 100-foot radius of

the location where the handbills were distributed.

Plaintiff states that there were few, if any

leaflets discarded within a 100-foot radius, that he

picked up discarded leaflets periodically that night as

he leafleted, that handbills were not clogging gutters

in the area, and that Plaintiff had not reached the

end of his leafleting when Defendant Gress arrested

him. Furthermore, Plaintiff states that Defendant

Gress did not ask Plaintiff if he was finished

leafleting, did not instruct Plaintiff to pick up

discarded leaflets when he was done, and did not tell

Plaintiff to move out of the way of pedestrians.

Defendants counter that while patrolling,

Officer Gress observed Plaintiff distributing leaflets

while standing in the middle of the sidewalk. Officer

Gress avers that he observed passing pedestrians

who were forced to walk in the street or stop on the

12a

sidewalk. Officer Gress also noted that a large

amount of Plaintiffs pamphlets were in the gutters

and sewers in Plaintiffs immediate vicinity. Gress

avers that he approached Plaintiff and reviewed the

material, then instructed Plaintiff to move away from

the middle of the sidewalk and to stand in a manner

that would not impede pedestrian traffic. Plaintiff

refused to move. For 15-20 minutes, Plaintiff

allegedly continued in his refusal to move to one side

of the sidewalk, and was eventually arrested and

cited.

On May 26, 2005, Plaintiff was convicted in

Philadelphia Municipal Court of violating § 10-723.

However, on appeal to the Common Pleas Court, all

charges against Plaintiff were dismissed with

prejudice.

On June 18, 2006, at about 1:15 a.m., Plaintiff

alleges that Defendant, Officer John MHanejko,

stopped Plaintiff from leafleting religious pamphlets

on a public sidewalk at 4th and South Streets in

Philadelphia. Officer Hanejko testified that he

approached Plaintiff after observing a number of

pamphlets on the ground. Hanejko avers that

Plaintiff was in the middle of sidewalk handing

pamphlets identical to those Hanejko observed lying

on the ground. Hanejko explains that he instructed

Plaintiff on his “rights and obligations with respect to

leafleting religious material on a public sidewalk.”

Specifically, according to Defendant, he told Plaintiff

that he was not allowed to obstruct the sidewalk or

stand in the middle of the sidewalk and force his

l3a

material onto pedestrians. Hanejko claims that

Plaintiff became irate upon hearing these

instructions, asked for Hanejko’s badge number, and

thereafter left the area. Plaintiff testified that he left

the area only to avoid arrest.

Plaintiff further challenges § 10-723 & 723.1(1)

stating that it is facially unconstitutional because it

violates the Equal Protection Clause of the

Fourteenth Amendment. Section 10-723 & 723 .1(1)

requires handbillers to clear discarded handbills

within a 100 foot radius of the area of distribution at

the end of the daily distribution, but do not require

vendors of materials, products, or food to clear trash,

wrapper, litter or refuse they generate within a 100

foot radius of the site of a_ sale. Plaintiff

acknowledges that minimizing litter or trash and

preventing the clogging of sewers and culverts are

the ostensible purposes for the regulation. However,

Plaintiff argues that handbillers are similarly

situated to vendors whose customers may throw

wrappers or other paper products to the ground.

This Court held a bench trial on February 19-20,

2008. The following constitutes the Court's findings

of fact and conclusions of law. Fed. R. Civ. Pro.

52(a).1

1 Federal Rule of Civil Procedure 52(a) states in

relevant part: “[ijn all actions tried upon the facts without a

jury ... the court shall find the facts specially and state its

conclusions of law separately.”

l4a

FINDINGS OF FACT

1.

D.

In 1984, Plaintiff started distributing

religious tracts with an outreach campaign

for Jews for Jesus and Jewish Outreach

Partnership for the Philadelphia Area

(“JOPPA”). He was given instructions on

how to leaftlet. (N.T. 2/19/08 16:16-17:1.)

All the leaflets that Plaintiff distributes are

religious in subject matter.

On April 9, 2005, at about 8:30pm, Plaintiff

was distributing religious printed material

(“leaflets” or “tracts”) on the 300 block of

South Street in Philadelphia,

Pennsylvania. (N.T. 2/19/08 35:14-16.)

There was a heavy flow of foot traffic. There

were no fights or violence. Passersby did

not speak to Plaintiff. Plaintiff did not

preach but occasionally stated “the Word of

God,” “God's word,” or “God's word is free.”

Officer Gress was assigned to the 3rd Police

District on April 9, 2005 with specific

assignment to South Street district as a

bicycle patrol officer. (N.T. 2/19/08 146:15-

23.)

On April 9, 2005, Philadelphia [Police

Officer Gress observed Plaintiff in the

middie of the sidewalk. (N.T. 2/19/08

9.

10.

11.

15a

146:21-23.)

The sidewalk was adjacent to a Starbucks

Coffee Shop and on the northern side of

South Street.

The sidewalk also had a fire hydrant,

various newspaper boxes, and barricades;

all of which were located on area of the

sidewalk nearest to the street. Ex. P-16.

Officer Gress initially observed Plaintiff

from the corner diagonal to the Starbucks.

Officer Gress observed Plaintiff for

approximately three to four minutes.

At the time that Officer Gress observed

Plaintiffs location, there were numerous

pedestrians attempting to negotiate the

sidewalk adjacent to the Starbucks Shop.

Several pedestrians, unable to continue on

their path, abandoned the sidewalk and

began to walk in the _ street. Other

pedestrians attempted to pass Plaintiff by

walking very close to the exterior wall of

the Starbucks. Officer Gress also observed

Plaintiff approaching pedestrians’ and

extending his hand with leaflets.. (N.T.

2/19/08 153:4-19.)

Officer Gress approached Plaintiff and

observed cither a cross or a bible on the

cover of a leaflet and determined that the

12.

13.

14.

16.

16a

materials appeared to be _ religious in

nature. (Id.)

Officer Gress requested that Plaintiff move

from the middle of sidewalk to a location

out of the flow of traffic and closer to the

curb. (Id.)

Plaintiff refused to change his position on

the sidewalk informing Officer Gress that

he has a constitutional right to distribute

his materials. (N.T. 2/19/08 158:25-159:10.)

Officer Gress again instructed Plaintiff to

distribute his materials from a _ location

closer to the curb. At a point in the verbal

exchange between Plaintiff and Officer

Gress, two other officers approached. (N.T.

2/19/08 85:22-86:2; 160:17-19.)

Plaintiff continued to refuse to alter his

position on the sidewalk and was arrested.

Plaintiff was removed from the area by the

other officers. (N.T. 2/19/08 160; 10-14)

Plaintiff was issued citation No.2005-

003198 for a violation of the Philadelphia

Code Section 10-723, Distribution of

Commercial & Non-Commercial handbills

and transported to the police station.

Plaintiff was detained for a total of ninety

minutes.

jy

18.

19.

20.

21.

22.

23.

24.

17a

The Police Report described Plaintiff's

conduct as “standing in the middle of

sidewalk and stopping people to hand them

handbills causing them walk [sic] in the

street creating a hazardous condition ....“

(P].Mot.Summ. J. Ex. P10.)

The District Attorney amended the charges

to include “Obstructing the Highway”

under 18 Pa.C.S.A. § 5507 at the time of

the hearing.

Plaintiff proceeded to trial in_ the

Philadelphia Municipal Court and was

found guilty. Plaintiff was also fined.

Plaintiff testified that he appealed the

conviction. (N.T. 2/19/08 53:24-25.)

No evidence of the disposition of such

appeal was presented by Plaintiff at trial.

On June 18, 2006 approximately 1:00am.

Plaintiff returned to the 300 block of South

Street in Philadelphia to distribute leaflets

containing religious subject matter.

Officer Hanejko was assigned to the 3rd

Police District on June 18, 2006 with

specific assignment to the South Street

district as a bicycle patrol office.

Officer Hanejko observed Plaintiff for

26.

27.

29.

l38a

approximately five minutes from across

Fourth Street where Officer Hanejko was

on his bike patrol. (N.T. 2/19/08 3:16-23.)

Officer Hanejko observed Plaintiff standing

in the middle of the sidewalk with his arm

extended handing out leaflets. (N.T. 2/20/08

4:6-5:9.)

After observing “a picture of God or a cross”

on the leaflet, Officer Hanejko determined

that the leaflets were religious in nature.

(N.T. 2/20/08 9:2-5.)

Officer Hanejko observed several

pedestrians, unable to continue on their

path, abandoned the sidewalk and began to

walk in the street. Other pedestrians

attempted to pass Plaintiff by walking very

close to the exterior wall of the Starbucks.

N.T. 2/20/08 4:6-5:9.)

Officer Hanejko thereafter approached

Plaintiff and informed him that he could

not stand in the middle of the sidewalk

while distributing his materials, as he

would obstruct the highway. (N.T. 2/20/08

4:21-5:5.)

Officer Hanejko did not instruct Plaintiff to

leave the area or inform Plaintiff that he

could not distribute his materials.

30. Plaintiff requested Officer Hanejko's badge

number and thereafter left the area. (N.T.

2/20/08 5:6-9.)

Il. CONCLUSIONS OF LAW

The following conclusions are entered:

z.

Determining the credibility of witnesses is

primarily the province of the factfinder.

United States v. Booker, No. 06-1074, 237

Fed. App’x 782, 782 (2007)

A. First Amendment

2.

“(S]preading one's. religious’ beliefs or

preaching the Gospel through distribution of

religious literature and through personal

visitations is an age-old type of evangelism

with as high a claim to constitutional

protection as the more orthodex types.”

Murdock v. Pennsylvania, 319 U.S. 105, 110

(1943).

However, principles of religious tolerance do

not relieve any individual from complying

with laws of general applicability, so the

right of exercise does not relieve an

individual of duty to comply with a valid and

neutral law of general applicability.

Employment Div. Dep’t of Human Re. of O. v.

Smith, 494 U.S. 872, 879 (1990), superceded

by statute, Religious Freedom Restoration

5.

20a

Act of 1993, 42 U.S.C. § 2000bb.

“The principles of the First Amendment are

not to be treated as a promise that everyone

with opinions or beliefs to express may

gather around ... at any public place and at

any time aé_=e group for discussion or

instruction.” Poulos v. New Hampshire, 345

U.S. 395 (1953). Even though First

Amendment rights are to be guarded, they

may still be regulated by the state. “The

rights of free speech and assembly, while

fundamental in our democratic society, still

do not mean that everyone with opinions or

beliefs to express may address a group at any

public place and at any time. The

constitutional guarantee of liberty implies

the existence of an _ organized _ society

maintaining public order, without which

liberty itself would be lost in the excesses of

anarchy.” Cox v. Louisiana, 379 U.S. 536,

554 (1965).

The government may impose reasonable

“time, place and manner restrictions” on

First Amendment activity to further

significant governmental interests. Grayned

v. City of Rockford, 408 U.S. 104, 115 (1972)

(citing Cox v. New Hampshire, 312 U.S. 569,

575 (1941).

Where Defendants’ restrictions on speech are

content-based, those restrictions are subject

10.

2la

to the highest degree of scrutiny whereby

they may withstand constitutional review

only where they are narrowly tailored to

achieve a compelling governmental interest.

Capitol Square Review & Advisory Bd. v.

Pinette, 515 U.S. 753, 761-62 (1993).

Protestors may be directed to espouse their

message from a designated area. This is to

ensure that their message will be seen and

heard, and ensures that public safety and

order will be maintained. Concerned Jewish

Youth _v. McGuire, 621 F.2d 471, 475 (2d

Cir.1980).

Where speech moves beyond mere speech

and into the realm of unlawful activity, the

fact that the speaker was engaged in speech

does not mean that probable cause for the

arrest must be discounted or ignored. See

Corbett v. Goode, No. 87-7379, 990 WL

181499 at *3 (E.D.Pa. Nov. 19, 1990); Armes

v. City of Philadelphia, 706 F.Supp. 1156,

1163 (E.D.Pa.1989), affd897 F.2d 520 (3d

Cir.1990); see also Habiger v. City of Fargo,

80 F.3d 289, 295 (8th Cir.1996).

Officer Gress recognized that the materials

that Plaintiff was distributing on April 9,

2005 were protected speech.

Officer Gress never asked Plaintiff to leave

the area. Rather, he merely instructed

ti.

12.

22a

Plaintiff to change his position so as to not

impede pedestrian traffic. This instruction

was given so that Plaintiff could continue to

distribute his pamphlets in accordance with

the law.

When Officer Gress requested that Plaintiff

move from the middle of the sidewalk, Officer

Gress employed narrow tailoring of the law

as he was attempting to restrict only as

much of Plaintiff's activity as was necessary

to protect the safety of the pedestrians on

South Street.

Fourth Amendment

B.1 Officer Gress and the arrest on April

9, 2005

Courts determine if probable cause existed at

the time of the arrest by evaluating whether

“the facts and circumstances within [the

officer's] knowledge and of which [he] had

reasonably trustworthy information were

sufficient to warrant a prudent man in

believing that [the plaintiff] had committed

or was committing an offense.” Beck v. Ohio,

379 U.S. 89, 91 (1964) (citing Brinegan v.

United States, 338 U.S. 160, 175-76 (1949);

Henry v. United States, 36i U.S. 98, 102

(1959)) accord, Wilson v. Russo, 212 F.3d

781, 789 (3 Cir.2000) (“Probable cause

exists if there is a ‘fair probability’ that the

13.

14.

15.

23a

person committed the crime at issue.” (citing

Harris v. City of Philadelphia, 35 F.3d 840-

45 (3d Cir.1994))).

Probable cause to arrest requires more than

a “mere suspicion,” but it does not require

that an officer possess sufficient evidence to

prove guilt beyond a reasonable doubt.

Orsatti v. N.J. State Police, 71 F.3d 480, 482-

83 (3d Cir.1995). “It is not the function of the

police to arrest only guilty persons; rather,

the function of the police is to arrest persons

based on _ probable cause.” Mordan __v.

Siegfeld, No 94-0025, 1995 U.S. Dist. LEXIS

2507, at *7 (E.D.Pa. Feb. 27, 1995).

Officer Gress had probable cause to arrest

Plaintiff on April 9, 2005 because Plaintiff

refused Officer Gress's repeated requests

that Plaintiff move from the middle of the

sidewalk where Plaintiff was causing

pedestrians to walk into the street or close to

the wall of the Starbucks in order to avoid

Plaintiff.

B.2 Officer Hanejko and the encounter

on June 18, 2006

“[Llaw enforcement officers do not violate the

Fourth Amendment by merely approaching

an individual on the street or in another

public place, by asking him if he is willing to

answer some questions, by putting questions

16.

17.

18.

19.

20.

21.

24a

to him if the person is willing to listen, or by

offering in evidence in a criminal prosecution

of his voluntary answers to such questions.”

Florida v. Royer, 460 U.S. 491, 497 (1983).

“If there is no detention-no seizure within the

meaning of the Fourth Amendment-then no

constitutional rights have been infringed.”

Royer, 460 U.S. at 498.

“The person approached, however, need not

answer any question put to him; indeed, he

may decline to listen to the questions at all

and may go on his way.” 7d. at 498-99 (citing

Terry v. Ohio, 392 U.S. 1, 32-33 (1968)

(Harlan, J., concurring); id. at 34 (White, J.,

concurring).

Officer Hanejko had the right to engage in

conversation with Plaintiff to instruct him on

the proper ways to distmbute materials

according to the law.

Plaintiff was not detained during this brief

conversation.

This was evidenced by the fact that Plaintiff

chose to end the encounter and go on his way

and was permitted to do so without further

incident.

Without being detained, Plaintiffs Fourth

Amendment rights could not have been

23.

24.

25.

25a

violated.

Malicious Prosecution

In Pennsylvania, as in most jurisdictions, a

party bringing a malicious prosecution claim

must demonstrate that (1) the defendant

instituted a criminal proceeding; (2) without

probable cause; (3) with malice; and (4) “that

the proceedings were terminated in favor of

the plaintiff.” Strickland v. Univ. _ of

Scranton, 700 A.2d 979, 984 (Pa.Super.1997)

(quoting Cosmas v. Bloomingdale Bros. Inc.,

442 Pa.Super. 476, 481 (1995)).

Plaintiff cannot properly sustain a claim for

malicious prosecution.

Officer Gress had probable cause to arrest

Plaintiff on April 9, 2005 because Plaintiff

refused Officer Gress's repeated requests

that Plaintiff move from the middle of the

sidewalk where Plaintiff was causing

pedestrians to walk into the street or close to

the wall of the Starbucks in order to avoid

him.

Plaintiff presented no evidence that Officer

Gress acted with malice. Instead, evidence

was presented that Officer Gress actually

engaged in conversation with Plaintiff for

five to ten minutes in an attempt to convince

him to comply with the law and thus avoid

26.

27.

28.

26a

an arrest.

The criminal proceedings did not terminate

in Plaintiffs favor. He was found guilty of

the charges.

Equal Protection

Plaintiff seeks to challenge the validity of §

10-723 & 723.1(1) of the Philadelphia Code

stating that it is facially unconstitutional

because it violates the Equal Protection

Clause of the Fourteenth Amendment.

Plaintiff has failed to sustain his burden of

proof on this claim. Plaintiff offered

insufficient evidence at trial on_ the

unconstitutionality of §§ 10-723, 10.723.1(1)

therefore, the Court cannot find in Plaintiff's

favor on this claim. An appropriate Order

follows.

27a

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT

OF PENNSYLVANIA

RAYMOND FRANTZ

Plaintiff,

Vv. : CIVIL ACTION

: NO. 06-3210

WILLIAM J. GRESS, ET AL. :

Defendants. 4

ORDER

AND NOW, this day of June, 2008,

after a bench trial, pursuant to Federal Rule of Civil

Procedure 52(a), IT IS ORDERED that:

1. JUDGMENT is ENTERED in favor of

Defendant and against Plaintiff on Counts

I-VI.

2. The Clerk of Court shall mark this case as

CLOSED.

BY THE COURT

/s/ Petrese B. Tucker

Hon. Petrese B. Tucker, U.S.D.J.