Watchtower Bible and Tract Soc, et al v. Somoza Colombani, et al

Filing

OPINION issued by Sandra L. Lynch, Chief Appellate Judge; Kenneth F. Ripple and Bruce M. Selya, Appellate Judge. Published. [13-1605, 13-1718, 13-1719]

Case: 13-1605

Document: 00116767332

Page: 1

Date Filed: 11/20/2014

Entry ID: 5868707

United States Court of Appeals
For the First Circuit
Nos. 13-1605
13-1718
13-1719
WATCHTOWER BIBLE AND TRACT SOCIETY
OF NEW YORK, INC. ET AL.,
Plaintiffs, Appellants/
Cross-Appellees,
v.
MUNICIPALITY OF SAN JUAN ET AL.,
Defendants, Appellees/
Cross-Appellants,
ALEJANDRO GARCÍA PADILLA,
IN HIS OFFICIAL CAPACITY AS GOVERNOR, ET AL.,
Defendants, Appellees.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo A. Gelpí, U.S. District Judge]

Before
Lynch, Chief Judge,
Ripple* and Selya, Circuit Judges.

Paul D. Polidoro, with whom Gregory Allen and Nora Vargas
*

Of the Seventh Circuit, sitting by designation

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Acosta were on brief, for plaintiffs.
Rosa María Cruz-Niemiec, with whom Cruz Niemiec & Vázquez was
on brief, for defendant Municipality of San Juan.
Michael C. McCall, with whom Luis Pabón Roca, Clarisa Solá
Gómez, Claudio Aliff-Ortiz, Ivan Pasarell-Jove, Rafael E. RiveraSánchez, Pedro R. Vázquez, III, Edgar Hernández Sánchez, Robert
Millán, The Law Offices of Michael Craig McCall, Faccio & Pabón
Roca, Aldarondo & Lopez Bras, P.S.C., Pedro R. Vázquez Law Office,
Cancio, Nadal, Rivera & Díaz, P.S.C., and Millan Law Offices were
on various briefs, for remaining seven municipal defendants.
Susana I. Peñagarícano-Brown, Assistant Solicitor
General, Department of Justice, with whom Margarita L. MercadoEchegaray, Solicitor General, was on brief, for Commonwealth
defendants.

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SELYA, Circuit Judge. Unlike other jurisdictions, Puerto
Rico

allows

private

citizens

to

maintain

communities that incorporate public streets.

gated

residential

This unorthodox

configuration produces an awkward amalgam of the public and private
sectors,

which

makes

the

task

of

applying

traditional

Amendment jurisprudence something of an adventure.

First

A predictable

result is the sort of dissonance that is apparent here.
This ten-year-old litigation is no stranger to this
court.

See Watchtower Bible & Tract Soc'y of N.Y., Inc. v.

Sagardía De Jesús (Watchtower I), 634 F.3d 3 (1st Cir.), reh'g
denied, 638 F.3d 81 (1st Cir. 2011); Watchtower Bible & Tract Soc'y
of N.Y., Inc. v. Colombani (Watchtower II), 712 F.3d 6 (1st Cir.
2013).

It traces its roots to the desire of the Jehovah's

Witnesses to access public streets within gated communities in
order to spread their religious message.

This desire puts their

legitimate First Amendment rights on a collision course with Puerto
Rico's decision to allow residents to protect themselves against
violent crimes by establishing gated communities that incorporate
public streets. Seeking to avoid this collision and paying heed to
our prior opinions in this litigation, the court below carefully
balanced competing concerns and devised a practical solution. That
solution satisfied no one, and both the Jehovah's Witnesses and the

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affected municipalities appeal.1

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Entry ID: 5868707

After careful consideration, we

uphold the district court's solution but modify it in some aspects
and remand the case for further proceedings consistent with this
opinion.
I.

BACKGROUND
This case has a twisted procedural history.

We assume

the reader's familiarity with our earlier opinions and rehearse
here only those events necessary to place the pending appeals into
perspective.
In

response

to

an

epidemic

of

violent

crimes,

the

Commonwealth enacted the Controlled Access Law (CAL), P.R. Laws
Ann. tit. 23, §§ 64-64h, which allows municipalities to authorize
neighborhood associations to erect gates enclosing public streets.
See Watchtower I, 634 F.3d at 6-7; see also P.R. Laws Ann. tit. 23,
§ 64.

These gated communities are called "urbanizations."
Even though the CAL and its regulations set a framework

for administration of the controlled access scheme, the permitting
process is in the hands of the municipalities.

They may adopt

rules "needed to carry out the purposes of" the CAL.

P.R. Laws

Ann. tit. 23, § 64e; see Asoc. Pro Control de Acceso Calle
Maracaibo, Inc. v. Cardona Rodriguez (Maracaibo), 144 D.P.R. 1, 26
(P.R. 1997) (explaining that municipalities have "the authority to

1

Various officials of the Commonwealth of Puerto Rico
(collectively, the Commonwealth defendants) were provisionally
dismissed as defendants and appear here as appellees.
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define the system to be used and to establish the pertinent and
appropriate requisites" for each proposed urbanization).

A permit

may not be revoked once it is recorded, but a municipality may
impose

sanctions

regulations.

for

violations

of

applicable

rules

and

See P.R. Laws Ann. tit. 23, § 64d.

In 2004, two corporations operated by the governing body
of the Jehovah's Witnesses brought suit against the Commonwealth
defendants under 42 U.S.C. § 1983.

Their complaint alleged that

the CAL, on its face and as administered, unconstitutionally
infringed the Jehovah's Witnesses' right to engage in door-to-door
ministry.

In support, they asserted that access to certain

urbanizations was routinely denied by security guards and that
unmanned gates, accessible solely by resident-controlled keys or
buzzers, were effectively impenetrable to nonresidents.
The
complaint.

Commonwealth

defendants

moved

to

dismiss

the

The district court granted the motion as to the

plaintiffs' facial challenge to the CAL but declined to address the
as-applied challenge in the absence of a developed record. Shortly
thereafter, the court directed the plaintiffs to file an amended
complaint "includ[ing] as defendants the specific communities which
will be affected by any decision of this Court."

The plaintiffs

elected to sue only a "representative" sampling of municipalities.2

2

The plaintiffs joined a smattering of urbanizations as
additional defendants. No urbanization remains an active party.
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After discovery, the parties cross-moved for summary
judgment on the as-applied claims.

The district court granted the

defendants' motions, see Watchtower Bible & Tract Soc'y of N.Y.,
Inc. v. Sánchez-Ramos, 647 F. Supp. 2d 103, 125-26 (D.P.R. 2009),
and the plaintiffs appealed.

We affirmed the dismissal of the

plaintiffs' facial challenge but vacated the judgment on the asapplied

claims

and

remanded

for

further

proceedings.

See

Watchtower I, 634 F.3d at 17.
With respect to manned urbanizations, we exhorted the
district court to "take prompt action" to ensure that guards
provide access to Jehovah's Witnesses who identify themselves and
state their purpose.

Id.

We noted that unmanned urbanizations by

their very nature gave "residents a veto right over access," and
stated:
A regime of locked, unmanned gates completely
barring access to public streets will preclude
all direct communicative activity by nonresidents in traditional public forums, and,
absent a more specific showing, cannot be
deemed "narrowly tailored."
Thus, a manned
guard gate for each urbanization is required,
unless the urbanization carries a burden of
special justification.
Id. at 13.

While recognizing that remediation could not be

accomplished overnight, we assumed that some unmanned urbanizations
might hire and train guards, whereas others that sought "to justify
more limited access arrangements (for example, manned gates for
limited periods on designated days) or an exemption because of

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small size" would "need[] a chance to propose and defend such a
request."

Id. at 17.

In denying rehearing, we clarified that we

had made no finding of liability on the part of any of the
defendants and explained that "any municipality or urbanization is
free on remand to urge that it did not improperly bar access or
discriminate."

Watchtower Bible & Tract Soc'y, 638 F.3d at 83.

The district court conducted a further hearing and, on
February 1, 2012, issued an order responding to our decision.

It

directed each municipal defendant to certify within two months that
all manned urbanizations within its borders had been instructed to
provide immediate access to Jehovah's Witnesses who disclose their
purpose and identity. In addition, it gave the municipalities time
to prepare and submit action plans tailored to the unmanned
urbanizations in their respective jurisdictions.

Finally, the

court ordered that, going forward, municipalities should not issue
permits

for

new

unmanned

urbanizations

absent

some

special

justification.
At the same time, the court dismissed the Commonwealth
defendants sua sponte.

When objections ensued, the district court

requested briefing on the issue.

After considering the parties'

submissions, the court reaffirmed the dismissal of the Commonwealth
defendants.

The plaintiffs attempted to take an immediate appeal

from this ruling.
jurisdiction.

We dismissed that appeal for want of appellate

See Watchtower II, 712 F.3d at 13.

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The case meandered in the district court for over a year.
Eventually, the court entered a final judgment as to unmanned
urbanizations. The core element of the court's remedial scheme was
a directive that each municipal defendant furnish the plaintiffs
with "unfettered" access (twenty-four hours a day, seven days a
week) to every unmanned urbanization within its borders.

To

accomplish this objective, the municipalities were ordered to
gather

and

turn

over

to

the

plaintiffs

all

means

of

access

available to residents of unmanned urbanizations (such as keys,
buzzers, or access codes).

The municipalities were given a

relatively short time frame within which to collect the means of
access and were warned that sanctions would be imposed for delays.
The obligation was ongoing: if an urbanization changed its means of
access (say, by converting to a new key system or a modified access
code), the municipalities were obliged to turn over such new means
of

access

within

twenty-four

hours.3

The

court

retained

jurisdiction for enforcement purposes.
The

municipal

reconsideration.

defendants

moved

unsuccessfully

for

Even before the appeal period expired, several

municipalities offered reasons why certain urbanizations should be
exempted from turning over means of access (for example, some

3

Citing our decision in Watchtower I, the district court, in
paragraph 6 of its judgment, also directed each municipal defendant
to evaluate whether unmanned urbanizations in its jurisdiction had
any "special justification" for not converting to manned gates.
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urbanizations left pedestrian gates open twenty-four hours a day).
The

district

court

brushed

these

reasons

aside,

telling

the

affected municipalities that, if any resistence developed, they
should forcibly lock the unmanned gates in the open position.
Sanctions

were

subsequently

levied

against

season,

plaintiffs

noncompliant

municipalities.
In

due

defendants appealed.

the

and

the

municipal

We consolidated these appeals for briefing

and argument.
II.

ANALYSIS
The centerpiece of the district court's remedial scheme

with respect to unmanned urbanizations is a mandatory injunction
directed at the municipal defendants.

When a party appeals from

the issuance of an injunction, appellate review is for abuse of
discretion.

See Shell Co. (P.R.) v. Los Frailes Serv. Station,

Inc., 605 F.3d 10, 19 (1st Cir. 2010); K-Mart Corp. v. Oriental
Plaza, Inc., 875 F.2d 907, 915 (1st Cir. 1989).

Within this

rubric, conclusions of law are assayed de novo and findings of fact
are assayed for clear error.

See Bl(a)ck Tea Soc'y v. City of

Bos., 378 F.3d 8, 11 (1st Cir. 2004).

Judgment calls, including

the lower court's choice of equitable remedies, are afforded
substantial deference and will be disturbed only if the court has
made a significantly mistaken judgment.

See Rosario-Torres v.

Hernández-Colón, 889 F.2d 314, 323 (1st Cir. 1989) (en banc).

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These appeals raise a cacophony of issues. We start with
a

threshold

matter:

the

municipalities'

contention

that

the

plaintiffs' claims are moot. Finding this contention meritless, we
proceed to examine the parties' other assignments of error.
A.

Mootness.

The municipalities' argument for mootness hinges on the
fact that the district court's judgment is favorable to the
plaintiffs.

But even though the plaintiffs obtained some relief,

they retain a right to appeal the scope and reach of the remedy
granted.
municipal

See Forney v. Apfel, 524 U.S. 266, 271 (1998).
defendants

have

complied

with

the

remedial order does not diminish this right.

district

That the
court's

See Vitek v. Jones,

445 U.S. 480, 487 (1980); see also N.Y. State Nat'l Org. for Women
v. Terry, 159 F.3d 86, 92 (2d Cir. 1998) ("[V]oluntary cessation of
misconduct does not engender mootness where the cessation resulted
from a coercive order and a threat of sanctions.").

Accordingly,

we hold that the plaintiffs' claims are not moot.
B.

Propriety of Injunctive Relief.

The municipalities assert that the district court erred
in granting injunctive relief in the absence of a supportable
finding that they violated the plaintiffs' constitutional rights.
Relatedly, they assert that the injunction must be rescinded due to
the absence of factual findings.

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The first assertion is built on the notion that courts
lack authority to impose a remedy against a defendant who has not
been shown to be a wrongdoer.

See, e.g., Rizzo v. Goode, 423 U.S.

362, 377 (1976); Milliken v. Bradley, 418 U.S. 717, 745 (1974).
The municipalities say that the district court made no finding that
they

(as

opposed

to

the

urbanizations)

were

responsible

for

infringing the plaintiffs' First Amendment rights.
Although the district court made no explicit statement
that

the

municipalities

had

violated

the

plaintiffs'

First

Amendment rights, we think such a determination is implicit in the
court's findings, viewed as a whole.
the

district

court

found

that

"in

In its February 2012 order,
every

Municipality

there

currently exist . . . urbanizations with unmanned gates, where
access is through a locked gate or buzzer operated solely by
residents."

This is precisely the type of access regime that we

deemed unconstitutional in Watchtower I, 634 F.3d at 13.

The

district court went on to find that "by virtue of the [CAL], it is
the Municipalities that approve urbanizations' requests for any
type of controlled access."
court's

earlier

finding

These findings dovetail with the

that

the

grant

of

a

permit

to

an

urbanization "does not abrogate the municipality's obligation to
ensure that public streets remain available for public use."
Watchtower Bible & Tract Soc'y, 647 F. Supp. 2d at 109.

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We review for clear error a district court's factual
findings.

See Fed. R. Civ. P. 52(a)(6); AIDS Action Comm. of

Mass., Inc. v. MBTA, 42 F.3d 1, 7 (1st Cir. 1994).

The aggregate

findings here, explicit and implicit, confirm that the municipal
defendants have had a custom and practice of issuing permits to
unmanned urbanizations without ensuring that the public streets
within them are open to protected speech activities.

These

findings are supported by the evidence and, therefore, are not
clearly erroneous.

Moreover, they are adequate to undergird a

grant of injunctive relief.

See Monell v. Dep't of Soc. Servs.,

436 U.S. 658, 694 (1978).
Almost as an afterthought, the municipal defendants
question the district court's factual finding that every defendant
municipality hosted one or more unmanned urbanizations.

This is

much ado about very little: even if the record may have been hazy
at the time, subsequent proceedings have made the accuracy of the
finding abundantly clear.

Consequently, remanding for further

inquiry into this point would be an empty ritual.

See Aoude v.

Mobil Oil Corp., 862 F.2d 890, 895 (1st Cir. 1988) (citing Gibbs v.
Buck, 307 U.S. 66, 78 (1939)).
This brings us to the underlying legal question, which
engenders de novo review.

See AIDS Action Comm., 42 F.3d at 7.

We

agree with the court below that legal responsibility for the
plaintiffs' injury may be placed on those host municipalities that

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issued permits authorizing unmanned urbanizations with no reliable
means of public access.

More than a decade before this litigation

began, the Puerto Rico Supreme Court declared that a municipality,
in its capacity as the permitting authority under the CAL, must
"carefully examine the access control proposal submitted for its
approval."

Caquías Mendoza v. Asoc. de Residentes de Mansiones de

Río Piedras, 134 D.P.R. 181, P.R. Offic. Trans. at 14 (P.R. 1993).
The municipality's responsibility extends to an examination of "the
manner in which the applicant entity plans to operate" the proposed
urbanization.

Id.

The purpose of such an inquiry is to ensure

that any proposed access plan "does not infringe on the rights
conferred by our legal system to all the parties affected by it."
Id. at 15.

In a later case, the same court explained that

municipalities

must

set

"specific

[urbanizations]

with

respect

Maracaibo, 144 D.P.R. at 26.

to

how

criteria
to

to

control

guide
the

the

access."

In other words, municipalities have

"the authority to define the system to be used and to establish the
pertinent and appropriate requisites for each [urbanization]." Id.
We think it follows that, in administering the CAL, each
municipality has an ongoing duty to ensure that the First Amendment
is respected in the urbanizations founded under its auspices.

In

addition, the legislature has implanted teeth in this grant of
authority:

the

CAL

gives

municipalities

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power

to

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sanctions on a wayward urbanization even after a permit is issued
and recorded.

See P.R. Laws Ann. tit. 23, § 64d.

The municipalities try to take cover under the rule that
cities

cannot

violations.
correct.

be

held

liable

for

third-party

See Monell, 436 U.S. at 691.
This

is

a

section

1983

suit,

constitutional

Their premise is
and

—

deliberate

indifference aside4 — a municipality is subject to liability under
section 1983 only if a deprivation of rights is effected pursuant
to a municipal policy or custom.

See L.A. Cnty. v. Humphries, 131

S. Ct. 447, 449 (2010) (applying Monell to equitable claims).

But

the conclusion that the municipal defendants draw from this premise
is faulty.

As we made clear in Watchtower I, "[a]uthorization of

controlled access is on its face an implementation of municipal
policy."

634 F.3d at 9.

Here, the record amply demonstrates that

the municipal defendants have had a policy and custom of issuing
permits to urbanizations without attaching conditions sufficient to
ensure public access.

This policy and custom led directly to the

infringement of the plaintiffs' First Amendment rights. No more is
exigible

to

warrant

equitable

relief

against

the

municipal

defendants.

4

In a section 1983 case against a municipality, a finding of
liability might also be based on deliberate indifference to an
obvious risk of a constitutional violation. See City of Canton v.
Harris, 489 U.S. 378, 390 (1989). While we note this possibility
for the sake of completeness, we need not explore it here.
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The municipal defendants have a fallback position.

They

argue that the injunction must be vacated because the district
court failed sufficiently to explain the reasons for issuing it
and, thus, violated Federal Rule of Civil Procedure 65(d)(1)(A).
We do not agree.
Rule 65(d)(1)(A) provides that every injunction must
"state the reasons why it issued."

The district court's orders,

read in conjunction with the hearing transcripts, chronicle the
court's laudable effort to balance the parties' and the public's
competing interests — free speech versus personal security — while
avoiding the imposition of undue administrative and financial
burdens on municipalities and urbanizations. Those sources combine
adequately to apprise the parties of the reasons for the injunction
and supply a satisfactory basis for meaningful appellate review.
Rule 65(d)(1)(A) must be given a commonsense construction, not a
hypertechnical one. See Withrow v. Larkin, 421 U.S. 35, 45 (1975);
Global NAPs, Inc. v. Verizon New Eng., Inc., 706 F.3d 8, 15 (1st
Cir. 2013) (per curiam).

While a more elaborate statement of the

court's rationale would have been helpful here, it is enough that
the court made the essence of its reasoning plain before ordering
injunctive relief.

See Global NAPs, 706 F.3d at 15.
C.

The Watchtower I Mandate.

We turn now to the argument that the district court
violated the mandate rule in crafting equitable relief.

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pertinent iteration, the mandate rule, a branch of the law of the
case doctrine, prevents relitigation in the lower court of issues
already decided on an earlier appeal of the same case.

See Mun'y

of San Juan v. Rullan, 318 F.3d 26, 29 (1st Cir. 2003).

We review

de novo whether and to what extent the mandate rule applies.

See

Negrón-Almeda v. Santiago, 579 F.3d 45, 50 (1st Cir. 2009).
Although both sides suggest that the district court's
remedial scheme for unmanned urbanizations flouts the mandate in
Watchtower I, they offer disparate reasons for their suggestion.
From the plaintiffs' standpoint, the putative mandate violation
rests

on

our

statement

that

"a

manned

guard

gate

for

each

urbanization is required, unless the urbanization carries a burden
of special justification."

Watchtower I, 634 F.3d at 13.

The

plaintiffs posit that the district court ignored this statement and
improvidently allowed unmanned urbanizations to forgo hiring guards
without first justifying their entitlement to an exception.

The

municipalities come at the putative mandate rule violation from a
different direction. Relying on our statement that "[t]he district
court will have to determine whether and when it is reasonable to
rely only on a buzzer system or some limited guard access," id.,
they posit that the district court should have considered each
urbanization singly instead of imposing a global solution.
We readily admit that our opinion in Watchtower I created
some ambiguity as to the scope of discretion available to the

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We did not intend to lay down rigid rules but,

rather, meant to highlight that the district court must take some
remedial action to resolve the unique constitutional problems
presented by unmanned urbanizations.

And in all events, what we

said about specific remedies was not part of our mandate.
The scope of an appellate mandate is restricted by the
See Biggins

issues that were actually before the appellate court.

v. Hazen Paper Co., 111 F.3d 205, 209 (1st Cir. 1997) ("Broadly
speaking, mandates require respect for what the higher court
decided,

not

for

what

it

did

not

decide.").

The

issue

in

Watchtower I was whether the district court erred in dismissing any
or all of the plaintiffs' claims.

See 634 F.3d at 8.

Issues of

remediation were not before the Watchtower I court and, thus, the
nature and extent of any particular remedy was not within the scope
of our mandate.

See Amado v. Microsoft Corp., 517 F.3d 1353, 1360

(Fed. Cir. 2008).
That ends this aspect of the matter. We intended neither
to

bind

the

district

court

to

a

presumption

that

unmanned

urbanizations should hire guards nor to preclude the use of a
global

solution

urbanizations.

to

the

problems

presented

by

unmanned

Accordingly, we reject the parties' mandate rule

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arguments5 and proceed to evaluate the district court's remedial
scheme on the merits.
D.

The Merits.

The abuse of discretion standard applies to review of the
district court's choice of a particular equitable remedy.
Rosario-Torres,
deferential.

889

F.2d

at

323.

This

standard

is

See

highly

See id.

There can be no doubt that the First Amendment protects
access to traditional public forums, including public streets, for
the purpose of engaging in door-to-door ministry.

See Watchtower

I, 634 F.3d at 10.

It is against this backdrop that the plaintiffs

complain

the

that

district

court's

remedial

scheme

unconstitutionally restricts their expressive activities. However,
their complaint must take into account that the prophylaxis of the
First Amendment is not unbounded.
manner restrictions are permissible.

Reasonable time, place, and
See Pleasant Grove City v.

Summum, 555 U.S. 460, 469 (2009). Such restrictions will be upheld
so long as they are content-neutral, narrowly tailored to serve a
significant governmental interest, and leave adequate alternative

5

The district court, like the parties, treated our statements
about relief as binding. See supra note 3. Consistent with the
clarification that we make today, we direct the district court, on
remand, to strike paragraph 6 of its March 2013 judgment. To the
extent that the district court finds that the terms of paragraph 6
are justified without regard to our mandate, it is free upon remand
to modify the injunction to reintroduce a requirement that unmanned
urbanizations show special justification for failing to convert to
a manned gate.
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channels of communication open to the speaker.

Entry ID: 5868707

See Ward v. Rock

Against Racism, 491 U.S. 781, 791 (1989).
The remedy crafted by the district court passes muster
under this paradigm.

We assume, as do the parties, that the

minimal restrictions imposed on plaintiff's speech "are justified
without reference to [its] content."

Ward, 491 U.S. at 791

(quoting Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288,
293 (1984)) (internal quotation mark omitted).

To the extent that

the remedial scheme conditions access to the urbanizations on the
content of the plaintiffs' speech, that is a condition consistent
with the right of access that the plaintiffs claim.
Similarly, the remedial scheme opens the very channel of
communication that the plaintiffs seek to pursue.

Moreover, it is

narrowly tailored to strike a balance between the plaintiffs'
significant interest in accessing public streets to carry out their
ministry and the government's significant interest in the security
of residents.

As we explained in Watchtower I, the CAL "was

prompted by and adopted against a background of endemic violent
crime," including drug dealing and an unusually high homicide rate.
634 F.3d at 6.

These security concerns weigh heavily in the First

Amendment analysis.
Even though the plaintiffs lament that sharing a single
key among their adherents will create logistical problems and
inhibit spontaneous speech, this lament overstates the matter. The

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Document: 00116767332

district

court,

faced

practical solution.

Page: 20

with

a

Date Filed: 11/20/2014

difficult

quandary,

Entry ID: 5868707

devised

a

While the court's solution entails sharing a

key among persons having a common mission, that requirement is not
especially onerous, and the resulting burden on the plaintiffs'
speech is minimal.
At any rate, this minimal burden is offset to some extent
by benefits inherent in the remedial scheme.

The injunction

entitles the plaintiffs to round-the-clock access to unmanned
urbanizations, on a level equal to that of residents. This quantum
of access exceeds the constitutional minimum.

Cf. Bl(a)ck Tea

Soc'y, 378 F.3d at 13-14 (upholding substantial limitations on use
of

public

streets

and

sidewalks

near

political

convention).

Indeed, it is hard to imagine a less speech-restrictive alternative
that would still effectively serve the government's interest in
residential security.
The plaintiffs also challenge the geographic breadth of
the injunction.

The remedy, they say, is not island-wide and,

thus,

provide

does

not

them

urbanization in Puerto Rico.

with

access

to

every

unmanned

This shortfall, however, is of the

plaintiffs' own contrivance: it was their decision to sue only a
representative sampling of municipalities that authorized unmanned
urbanizations.

Had they accepted the district court's invitation

and sued all of the affected municipalities, the geographic breadth
of the remedy would not be an issue.

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The plaintiffs try to characterize the need to file
additional

lawsuits

restraint.

against

other

municipalities

This characterization is fanciful.

as

a

prior

In the First

Amendment context, a prior restraint is a restraint imposed by the
government.

See, e.g., Neb. Press Ass'n v. Stuart, 427 U.S. 539,

543-44 (1976); Shuttlesworth v. City of Birmingham, 394 U.S. 147,
156 (1969).

The harm of which the plaintiffs now complain is not

the result of a prior restraint imposed by a court or government
agency but, rather, results from the plaintiffs' considered choice
to sue fewer than all the host municipalities.
By the same token, we reject the plaintiffs' argument
that the burden of sharing keys constitutes a prior restraint.
Sharing keys is a reasonable restriction on the manner of affording
access to public streets within the urbanizations.

As such, it is

no more a prior restraint than the regime for which the plaintiffs
advocate on appeal: requiring an individual to stop at a sentry
booth, identify herself to a guard, and state the purpose of her
planned entry.

See Watchtower I, 634 F.3d at 13-14 (concluding

that manned-gate arrangement would pass constitutional muster).
Like the plaintiffs, the municipal defendants challenge
the

merits

of

the

district

court's

remedial

scheme.

Their

challenge can be distilled to a claim that the injunction imposes
undue administrative burdens upon municipalities (for example,
collecting and distributing keys and keeping track of changes in

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modes of access).

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This challenge is for the most part easily

rebuffed.
A hallmark of equity is the broad flexibility that is
available to the chancellor in the fashioning of remedies.

See

Hecht Co. v. Bowles, 321 U.S. 321, 329-30 (1944). Here, the record
makes manifest that the remedial scheme is not so burdensome as to
constitute an abuse of discretion.

Presented with evidence that

conversion to manned gates would be prohibitively expensive for
many unmanned urbanizations, the district court crafted a lesscostly anodyne that provides the plaintiffs with nearly unfettered
access to such urbanizations.
While

this

anodyne

requires

some

administration

by

municipalities, those added duties are not significantly vexatious.
After all, it is the CAL, not the district court, which placed the
municipalities at the helm of the permitting process.

See P.R.

Laws Ann. tit. 23, §§ 64, 64b. Given this legislative judgment, we
think that the district court acted well within its discretion in
adding

a

modest

administrative

incremental

role.

See

burden

to

the

Rosario-Torres,

municipalities'

889

F.2d

at

323

(explaining that "the trial judge, who has had first-hand exposure
to the litigants and the evidence, is in a considerably better
position to bring the scales into balance than an appellate
tribunal").

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There is, however, a small exception to this analysis.
The last sentence of paragraph four of the March 2013 judgment
requires municipalities to deliver any new means of access to the
plaintiffs within twenty-four hours of any change.

This condition

would impose an unfair burden on municipalities if, for example,
the means of access are changed on a weekend when municipal offices
are closed.

Accordingly, we vacate this portion ("within twenty-

four hours of the change") of the district court's remedial order.
The court is free on remand to impose a less burdensome rule with
a similar goal, such as a requirement that municipalities deliver
the new means of access to the plaintiffs on the next business day.
E.

Dismissal of Commonwealth Defendants.

Next, the plaintiffs assail the district court's sua
sponte dismissal of the Commonwealth defendants.

Had the court

kept those defendants in the case, the plaintiffs say, it would
have been able to fashion a more salubrious island-wide remedy.
Sua sponte dismissals, which by definition are entered on
the court's own initiative and without advance notice or an
opportunity to be heard, are disfavored.

See González-González v.

United States, 257 F.3d 31, 36-37 (1st Cir. 2001); Berkovitz v.
Home

Box

Office,

Inc.,

89

F.3d

24,

31

(1st

Cir.

1996).

Nevertheless, a sua sponte dismissal will not be set aside where
the aggrieved party cannot show any prejudice.
Fajardo, 472 F.3d 19, 22 (1st Cir. 2007).

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See Vives v.

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In this instance, the plaintiffs cannot show a smidgen of
prejudice.

When the sua sponte dismissal was questioned, the

district court prudently invited briefing on the underlying issues
and reconsidered its action. The entry of a new order of dismissal
after reconsideration effectively cured any prejudice.

See Curley

v. Perry, 246 F.3d 1278, 1284 (10th Cir. 2001); Winters v. Diamond
Shamrock Chem. Co., 149 F.3d 387, 402 (5th Cir. 1998).
Our holding that the order of dismissal is not subject to
reversal on procedural grounds does not end the inquiry.

The

plaintiffs submit that there was no valid basis for the dismissal
of the Commonwealth defendants.

In their view, the Commonwealth's

participation in a remedial scheme is necessary to afford complete
relief.

This amounts to a claim that the Commonwealth defendants

are required parties.

See Fed. R. Civ. P. 19(a)(1)(A).

We reject the plaintiffs' importunings.

A party is a

necessary party within the purview of Rule 19(a)(1)(A) only if, "in
that person's absence, the court cannot accord complete relief
among existing parties."

Relief is complete when it meaningfully

resolves the contested matter as between the affected parties. See
Fed. R. Civ. P. 19 advisory committee note to 1966 amend.; Alto v.
Black, 738 F.3d 1111, 1126 (9th Cir. 2013).

To be complete,

however, the relief need not align exactly with the remedy sought
by the plaintiff.

See Salt Lake Tribune Publ'g Co. v. AT&T Corp.,

320 F.3d 1081, 1097 (10th Cir. 2003).

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As long as a party's absence

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does not prevent the district court from affording complete relief,
Rule

19(a)(1)(A)

presence.6

does

not

mandate

that

party's

continuing

See Bacardí Int'l Ltd. v. V. Suárez & Co., 719 F.3d 1,

10 (1st Cir.), cert. denied, 134 S. Ct. 640 (2013).
In this case, we detect no error in the district court's
conclusion that complete relief as between the main protagonists —
the plaintiffs and the municipalities — can be accomplished without
the involvement of the Commonwealth defendants.

See Williams v.

Fanning, 332 U.S. 490, 494 (1947) (holding that absent party is not
indispensable

if

relief-granting

decree

is

effective

without

requiring that party "to do a single thing"). The court's remedial
scheme redresses the constitutional violations in the communities
that the plaintiffs joined in their suit, and no action by the
Commonwealth is needed for the municipal defendants to implement
that remedy.

Surely, the presence of the Commonwealth defendants

is not required in order for the municipal defendants to, say,
collect and distribute keys, monitor compliance, and sanction
offenders.
Of course, the fact that an otherwise proper defendant is
not a necessary party does not mean that it must be dismissed from
the case.

But where, as here, certain defendants are dispensable

parties whose presence is not required to afford complete relief,

6

The plaintiffs' assignment of error implicates only Rule
19(a)(1)(A). They do not contend that the Commonwealth defendants
are required parties under Rule 19(a)(1)(B).
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the trial court may, in the exercise of its sound discretion,
dismiss them.

See Comm. for Pub. Educ. & Religious Liberty v.

Rockefeller, 322 F. Supp. 678, 686 (S.D.N.Y. 1971) (citing Fed. R.
Civ. P. 21).

So viewed, the issue reduces to whether the district

court's decision to fashion a remedial scheme that does not involve
the Commonwealth defendants is an abuse of discretion.

We think

not.
Faced with the need to remedy ongoing constitutional
violations, the district court reasonably could have chosen to
ameliorate those violations by a decree addressed either to the
municipalities or to the Commonwealth defendants.

There are

advantages and disadvantages to either alternative.

Given this

choice, we believe that the district court acted within its
discretion in selecting the municipalities as the medium for
effectuating

relief.

Once

this

selection

Commonwealth defendants became superfluous.

was

made,

the

And while the ensuing

implementation of the remedial scheme has had its challenges, those
challenges cannot fairly be attributed to the absence of the
Commonwealth defendants.

Indeed, the Commonwealth defendants have

assured us, both at oral argument and in a letter submitted
pursuant to Federal Rule of Appellate Procedure 28(j), that the

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Puerto Rico police are aware of the constitutional rights of the
plaintiffs and are under orders to assist them.7
In any event, the district court wisely left open the
possibility of future participation in the case by the Commonwealth
defendants.

See Watchtower II, 712 F.3d at 12-13.

As a practical

matter, the dismissal of the Commonwealth defendants operated
without prejudice.
events,

were

Commonwealth

to

If the district court, in light of unfolding
conclude

defendants

that

before

it
the

is

desirable

court

in

to

order

have
to

the

afford

effective relief, it possesses the flexibility to take corrective
action.

See Amado, 517 F.2d at 1360.
F.

A Loose End.

There is one problem that should not be left for future
consideration.

Up to this point, the district court has required

unmanned urbanizations seeking exceptions to the remedial scheme to
speak to the court through the municipal defendants. We think that
the

district

court,

not

the

affected

municipality,

is

the

appropriate arbiter of whether good cause exists in any given
instance for an exception to the remedial scheme.

If a particular

urbanization believes that it can identify peculiar circumstances
rendering

the

current

remedy

inequitable

7

as

applied

to

its

The plaintiffs make much of three instances in which
Commonwealth police allegedly failed to act following reports that
Jehovah's Witnesses were denied access to manned urbanizations.
This tells us nothing, however, as to the efficacy of the district
court's remedial scheme vis-à-vis unmanned urbanizations.
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community, it should be permitted to present such evidence to the
court or to a court-appointed special master.

See Fed. R. Civ. P.

53(a)(1)(C).
III.

CONCLUSION
We caution that the current remedial scheme should not be

regarded as immutable.

Our endorsement rests on the understanding

that the district court, either directly or through a special
master, will undertake periodic reviews of the scheme's operation.
Experience is a good teacher, and experience with the remedial
scheme may show that improvements are in order.

So, too, changing

circumstances (including but not limited to technological advances
that

may

make

remedies

such

as

"virtual

feasible) may alter the balance of hardships.

guards"

financially

The district court

is in the best position to ensure that the remedial scheme remains
both equitable and effective in practice and, if not, to tweak it.8
We need go no further. For the reasons elucidated above,
we affirm the substance of the March 2013 injunction (but direct
the vacation of paragraph 6 and the last portion of paragraph 4
thereof), affirm the district court's dismissal without prejudice
of the Commonwealth defendants, and remand for further proceedings

8

We note that the parties claim to have encountered some
problems in implementing the remedial scheme.
We leave to the
district court the task of determining whether these problems
require the scheme to be modified.
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consistent with this opinion.

Date Filed: 11/20/2014

Entry ID: 5868707

All parties shall bear their own

costs.

So Ordered.

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