Veterans For Peace et al v. City of Boston et al

Filing 22

District Judge Leo T. Sorokin: ORDER entered denying 2 Motion for Preliminary Injunction. See order attached. (Denardo, Nancy)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
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VETERANS FOR PEACE,
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CHAPTER 9, SMEDLEY BUTLER
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BRIGADE, through its Member and
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Representative, PATRICK SCANLON,
)
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Plaintiffs,
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v.
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Civil Action No. 15-10346-LTS
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THE CITY OF BOSTON and
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GINA FIANDACA,
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Defendants.
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ORDER ON PLAINTIFFS’
MOTION FOR PRELIMINARY INJUNCTION

March 6, 2015
SOROKIN, J.
Every year since at least the 1940s, if not earlier, the streets of South Boston have hosted
a St. Patrick’s Day parade typically beginning at 1:00 P.M. on the Sunday closest to March 17th.
Disputes relating to the parade have resulted in substantial litigation. See Hurley v. Irish-Am.
Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557 (1995); S. Boston Allied War Veterans
Council v. City of Boston, 297 F. Supp. 2d 388 (D. Mass. 2003). The Allied War Veterans
Council (AWV) organizes the annual St. Patrick’s Day parade. The event draws hundreds of
thousands of people to the streets of South Boston to observe. The AWV exercises its First
Amendment right to exclude from its parade messages it does not wish to sponsor or advance.

See Hurley, 515 U.S. at 574 (“the [AWV] clearly decided to exclude a message it did not like
from the communication it chose to make”). 1
For many years, the Boys and Girls Club of South Boston have sponsored a 3.1 mile road
race on the morning of the day of the parade. The race has commenced at 11:00 A.M. every year
for the past several years.
The Veterans for Peace, a not-for-profit organization, has sponsored its own St. Patrick’s
Day parade on the streets of South Boston. AWV has, or would, exclude at least some of the
VFP participants from the AWV parade under AWV’s guidelines as identified in Plaintiff’s
affidavit. See Docket #7 at 1-2. Like the AWV sponsored parade, the VFP parade follows the
traditional route down West and East Broadway Streets, returning along East 4th and East 5th
Streets, winding around Thomas Park, and concluding on Dorchester Avenue. See Docket #7-5
at 2 (map depicting the routes of both parades). In 2003 Boston Police allowed the VFP to
commence its parade immediately following the last marchers in the AWV parade. See S.
Boston Allied War Veterans Council, 297 F. Supp. 2d at 389. AWV sued the City and prevailed
on its claim that permitting the VFP marchers to follow immediately the AWV parade
unconstitutionally associated AWV’s parade with the VFP parade. Judge Collings found “as a
fact that the manner in which the defendants allowed the Protest Group to march, i.e., directly

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Plaintiff Scanlon attests that the AWV parade regulations specify:
1... The Parade Adjutant is vested with the sole authority to include or exclude any unit from the parade, up
to and during the parade, unless voted otherwise by the membership of the Council.
2... No units will be considered as participants that contain anti-government, anti-armed forces, or any
political messages.
3... All signage, attire, banners, flags or other symbols are subject to inspection and approval by the Parade
Adjutant, and no unit will be allowed to employ any language that the organizers and the Parade Adjutant
deem inappropriate.

Sexual orientation: it is not the policy of the Council to exclude or deny access to our parade on the basis of
sexual orientation. What is not permitted is the inclusion of any individuals or groups that have messages,
flags, banners, displays or symbols, attire, or speech in any form, that celebrates, advocates sexual identity
or orientation.
Docket #7 at 1-2.

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after the last group which was an actual participant in the parade, had the effect of creating the
perception among those watching the parade that the Protest Group was, indeed, a part of the
Council’s parade.” Id. at 394. The Court, however, rejected AWV’s claim that the Court must
prohibit VFP from marching until the crowd observing AWV’s parade had “dispersed.” Id. at
399. As a remedy, the court enjoined the City “from allowing (by permit or otherwise) future
groups who wish to march at the end of the Parade to do so less than one mile behind the . . . end
of the AWV’s Parade.” Id. at 399.
Every year since 2011, the VFP parade has commenced at approximately 3:30 or 4:00
P.M., i.e. when the last marchers in the AWV parade are at least one mile from the starting point
of VFP’s parade. Each year, Boston Police close the AWV parade route to motor vehicles at
12:30 P.M. They maintain these street closings continuously until the conclusion of the VFP
parade. The City reports that approximately eighty percent of the spectators leave the parade
route before the VFP parade. The photographs submitted by VFP depicting the parade in a prior
year are consistent with the City’s estimate.
For 2015, VFP, as it has in prior years, sought a permit for a 12 noon start time. VFP
filed its permit request under the City’s regulations, on March 25, 2014, nearly one full year
prior to the event. Not until months later did the AWV or the Boys and Girls club file their
permit applications.
The relevant regulations of the City permit the City to consider only reasonable time,
place and manner factors in evaluating a permit application:
The Commissioner of Transportation shall issue such permit in all cases except where the
time, place, and manner are not in conformity with the Rules set forth below, or where
the permit would conflict as to time or place with a permit previously issued.
Docket #14-3 at 2 (Traffic Rules and Regulations Article VIII).

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The City’s regulations also anticipate the possibility that it may need to modify a permit
request and, in those circumstances, lay out a procedure for consultation and communication as
follows:
3. The Transportation Commissioner, in consultation with the Police Commissioner, may
modify the requested route or time of a parade based upon the following conditions:
a. When the size of the parade, based upon the expected number of participants and
spectators, cannot be safely accommodated on the proposed route because of the capacity
of the roadway. The capacity of the roadway shall be determined by taking into
consideration the width of the road and the adjacent sidewalk as well as the proximity of
structures such as buildings or fences located at the back of the sidewalk.
b. When the route or time conflicts with another parade or other public event to such an
extent that the public order or safety is threatened. The determination shall be based upon
the inability of the roadway to safely accommodate the expected number of participants
and spectators; or the inability to develop safe traffic detours because of the street
configuration and traffic congestion in the area.
Any modification of the route or the time shall be narrowly tailored to address the
conditions and shall be done in consultation with the permit applicant unless the applicant
is unavailable or declines to consult with the Transportation Commissioner.
Any modification to the requested route or time, or any determination by the
Transportation Commissioner to deny a permit, shall be in writing to the applicant and
shall set forth a basis for such determination.
Docket #14-3 at 3 (Traffic Rules and Regulations Article VIII).
Although VFP filed its application in March of 2014, it heard nothing from the City in all
of 2014. According to VFP’s counsel, despite emails, phone calls and letters to the City, at no
time did any City official ever respond to the VFP’s permit or the various inquiries from counsel.
On February 12, 2015, the VFP filed this suit seeking, among other things, a preliminary
injunction ordering the City to allow VFP to begin its parade at 12 noon. The Court held a status
conference on February 19, 2015, established a deadline for the City to respond to the VFP’s
motion and scheduled a hearing on the motion for March 2, 2015. At the hearing, counsel for the
City conceded that at no time prior to the February 19th status conference did any official from
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the City ever (1) respond to the VFP regarding its permit application, (2) respond in any way to
the various inquiries made by counsel regarding the permit, or (3) invoke the communication
process of the City’s regulations described above. The record before the Court establishes,
without any contradiction from the City, that City officials have conferred with AWV
representatives regarding the timing and logistics of the AWV parade. In addition, the City’s
own submissions establish that the City has prepared a comprehensive and complex public safety
and security plan to manage and to protect the potentially one million people that might gather
on the streets of South Boston. Preparing such a plan requires substantial time, effort, thought
and planning.
A further issue arose at the hearing. The City reported that the historic winter that
residents of Greater Boston are enduring might result in a change in the date of the AWV parade.
If the AWV parade moves from the March 15th date, then VFP would like to move its parade as
well. In short, the VFP is not per se seeking the noon slot on March 15th, but rather requesting to
present a parade one hour prior to the AWV parade, although that is not the literal form of its
permit application. The Court authorized VFP to file a reply, directed the parties to confer and
required the filing of a joint status report by close of business Thursday, March 5, regarding the
status of the AWV parade. The parties have now reported that despite good faith negotiations
they cannot resolve their dispute. They also reported the AWV parade will proceed on March
15th, but the route will be shorter.
To obtain a preliminary injunction “a trial court must weigh several factors: (1) the
likelihood of success on the merits; (2) the potential for irreparable harm to the movant in the
absence of an injunction; (3) the balance of the movant’s hardship if relief is denied versus the

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nonmovant’s hardship if the relief is granted; and (4) the effect, if any, of the decision on the
public interest.” Maine Educ. Ass’n Benefits Trust v. Cioppa, 695 F.3d 145, 152 (1st Cir. 2012).
Plaintiffs bring two claims: Count I asserting a violation of their rights under the First and
Fourteenth Amendments to the United States Constitution and Count II asserting a violation of
the City’s traffic regulations. On the preliminary record before this Court, the City appears to
have decided that the AWV parade was entitled to the 1:00 P.M. slot, the Boys and Girls Club
the 11:00 A.M. slot, and the VFP, despite a specific request for an earlier slot in between the
other two events, would receive the 4:00 P.M. slot. Nothing suggests the City ever actually
considered allowing the VFP parade to proceed earlier in the day. This raises substantial
concerns. While the regulations do not create an express first to file rule, the process applied in
this case, favoring events with historical lineage in the absence of any criteria whatsoever
defining the contours of when such precedence applies (or even that it does apply) raises the
prospect that the City’s silence for eleven months in the face of Plaintiffs’ application was
content or viewpoint discrimination. Insofar as Plaintiffs are more in the nature of a “protest
march” than a standard request to parade at a given time, the record suggests the City never
considered whether it could accommodate either the VFP parade as proposed or some smaller
march in advance of the AWV parade. Both the absence of affirmative evidence from the City
indicating such consideration and the failure by anyone from the City to communicate with the
Plaintiffs until a handful of days before all the permits issued support this conclusion.
However, the Plaintiffs have failed to demonstrate a likelihood of success on the
regulations claim, because the regulations place no limit on how long the City may consider a
permit application and do not expressly provide for a first to file rule. Plaintiffs cannot establish
a likelihood of success on the merits of the First Amendment claim, at this time, for two different

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reasons. First, marching before the AWV parade might infringe AWV’s First Amendment rights
not to associate with the VFP. Plainly, a one mile buffer between the two parades, see S. Boston
Allied War Veterans Council, 297 F. Supp. 2d at 399, when the VFP parade follows the AWV
suffices to distinguish the two parades. The same is not necessarily true if the VFP parade
precedes the AWV parade. The hundreds of thousands of people gathering on the streets of
South Boston to see the AWV parade, seeing another parade, the VFP, in the noon to 2:00 P.M.
time period will likely link or associate, in a First Amendment constitutional sense, the VFP with
the AWV. The AWV has a right not to associate with the VFP, see Hurley, 515 U.S. at 573, and
has won a lawsuit in this Court seeking not to associate with the VFP. See S. Boston Allied War
Veterans Council, 297 F. Supp. 2d 388.
In these circumstances, VFP has established neither that it has a likelihood of success on
the merits nor that the public interest favors the injunction. The Motion for a Preliminary
Injunction is DENIED.

SO ORDERED.
/s/ Leo T. Sorokin
Leo T. Sorokin
United States District Judge

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