TURO v. CITY OF ENGLEWOOD, NEW JERSEY

Filing 49

OPINION. Signed by Judge Susan D. Wigenton on 11/14/17. (cm, )

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

JERYL TURCO,

Case No. 2:15-cv-03008 (SDW)(LDW)
Plaintiff,

v.
OPINION
CITY OF ENGLEWOOD, NEW JERSEY,
Defendant.
November 14, 2017

WIGENTON, District Judge.
Before this Court are Plaintiff Jeryl Turco’s (“Plaintiff”) Motion for Summary Judgment
(ECF No. 43) and Defendant City of Englewood, New Jersey’s (“Defendant”) Cross-Motion for
Summary Judgment (ECF No. 44), both pursuant to Federal Rule of Civil Procedure 56.
Jurisdiction is proper pursuant to 28 U.S.C. § 1331. Venue is proper pursuant to 28 U.S.C. § 1391.
This opinion is issued without oral argument pursuant to Federal Rule of Civil Procedure 78. For
the reasons discussed below, Plaintiff’s Motion for Summary Judgment is GRANTED and
Defendant’s Cross-Motion for Summary Judgment is DENIED as moot.

I.

BACKGROUND
Plaintiff Jeryl Turco brings the instant civil rights action under 42 U.S.C. § 1983, alleging

that Defendant City of Englewood’s Ordinance No. 14-11 (the “Ordinance”) violates the First
Amendment and New Jersey Constitution. (See generally ECF No. 1 (“Compl.”); ECF No. 43-3.)
A. The Ordinance
On March 18, 2014, Defendant enacted the subject Ordinance, which amended Section
307-3, in relevant part, to prohibit any person within the City of Englewood from knowingly
entering or remaining:
on a public way or sidewalk adjacent to a health care facility or transitional facility within
a radius of eight feet of any portion of an entrance, exit, or driveway . . . or within the area
within a rectangle created by extending the outside boundaries of any entrance, exit or
driveway of such facility in straight lines to the point where such lines intersect the sideline
of the street in front of such entrance, exit, or driveway. This subsection shall not apply to
the following:-(1) persons entering or leaving such facility;
(2) employees or agents of such facility acting within the scope of their
employment;
(3) law enforcement, ambulance, firefighting, construction, utilities, public works
and other municipal agents acting within the scope of their employment; and
(4) persons using the public sidewalk or street right-of-way adjacent to such
facility solely for the purpose of reaching a destination other than such facility.
See Englewood City Code § 307-3 (emphasis added). The Ordinance was created in response to
militant activists and aggressive protestors congregating outside of Metropolitan Medical
Associates, an abortion clinic located at 40 Engle Street in Englewood, New Jersey (“the Clinic”).
Plaintiff is a pro-life advocate who regularly engages in sidewalk counseling of the Clinic’s
prospective clients. Sidewalk counselors distribute literature and/or rosaries to, and communicate
with, clients entering the Clinic. (Compl. ¶ 43.) Plaintiff’s objective is to try to engage the Clinic’s
clients in “quiet, friendly, non-confrontational conversation with a view toward offering them
alternatives to abortion.” (Pl.’s Statement of Material Facts (“SMF”) ¶ 5.) Thus, it is essential to

Plaintiff’s form of counseling that she be able to get in close proximity to prospective clients in
order to engage in direct, one-on-one communication in front of the Clinic. (Id. at ¶ 6.)
The Ordinance establishes a buffer zone that stretches along the Clinic’s entrance, exit and
driveway. (Compl. ¶¶ 28, 38, 48.) The buffer zone extends eight feet to the left and eight feet to
the right of the Clinic’s doorway or driveway down to the street. As a result, Plaintiff and others
similarly situated are excluded from approximately twenty-four feet on either end of the Clinic, or
forty-eight feet in total of the public sidewalk outside the Clinic.
B. Procedural History
After the Supreme Court in McCullen v. Coakley, 134 S. Ct. 2518 (2014), unanimously
struck down a statute in Massachusetts that contained language identical to the present Ordinance,
Plaintiff filed a Complaint seeking a declaration that the Ordinance is facially unconstitutional and
unconstitutional as applied to her. (Compl. ¶ 81.) Plaintiff claims that the buffer zone “chill[s]”
her freedom of speech and assembly protected by the First Amendment of the United States
Constitution (First & Second Claims for Relief) and by Article I, para. 6 of the New Jersey
Constitution (Third Claim for Relief). (Compl. ¶ 55.) Plaintiff seeks to permanently enjoin
Defendant, City of Englewood, and those acting in concert or participation with them, from
enforcing the Ordinance against Plaintiff and others similarly situated while they use traditional
public forums in Englewood. (Id. at ¶ 81.)
Plaintiff previously filed a Motion for Preliminary Injunction (ECF No. 15), which this
Court held in abeyance while Bruni v. City of Pittsburgh, 824 F.3d 353, 362 (3d Cir. 2016) was
pending appeal in the Third Circuit. Bruni involved the City of Pittsburgh’s buffer-zone ordinance,
which prohibited the plaintiffs from engaging in sidewalk counseling within fifteen feet of health
care facilities. On appeal, the plaintiffs sought review of the District Court’s dismissal of their

First Amendment and Due Process claims, which challenged the ordinance as unconstitutional.
The Third Circuit vacated the District Court’s order dismissing the plaintiffs’ First Amendment
claims and remanded the case so that the District Court could consider the plaintiffs’ claims under
the McCullen standard. After Bruni was decided, this Court granted Plaintiff leave to refile her
motion. (ECF No. 28) Plaintiff did not refile her motion and instead requested that the Court enter
a discovery schedule. (ECF No. 29.) The instant motions for summary judgment followed.
II.

SUMMARY JUDGMENT STANDARD
The court will grant a motion for summary judgment where, “after adequate time for

discovery and upon motion, the ‘nonmoving party’ fails to make a showing sufficient to establish
the existence of an element essential to that party’s case, and on which that party will bear the
burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Rule 56 provides
the court with authority to “grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). The “mere existence of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary judgment; the requirement is that
there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 24748 (1986). A fact is only “material” for purposes of a summary judgment motion if a dispute over
that fact “might affect the outcome of the suit under the governing law.” Id. at 248. A dispute
about a material fact is “genuine” if “the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Id. The dispute is not genuine if it merely involves “some
metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986).

The moving party must show that if the evidentiary material of record were reduced to
admissible evidence in court, it would be insufficient to permit the nonmoving party to carry its
burden of proof. Celotex Corp., 477 U.S. at 322-23. Once the moving party meets its initial
burden, the burden then shifts to the nonmovant who must set forth specific facts showing a
genuine issue for trial and may not rest upon the mere allegations, speculations, unsupported
assertions, or denials of its pleadings. Shields v. Zuccarini, 254 F.3d 476, 481 (3d Cir. 2001).
When deciding a motion for summary judgment, the district court “must credit the evidence
of the non-moving party and draw all justifiable inferences” in favor of the nonmoving party.
Smith v. Maiorana, 629 F. App’x 402, 404 (3d Cir. 2015). The nonmoving party is required to
“point to concrete evidence in the record which supports each essential element of its case.” Black
Car Assistance Corp. v. New Jersey, 351 F. Supp. 2d 284, 286 (D.N.J. 2004). If the nonmoving
party “fails to make a showing sufficient to establish the existence of an element essential to that
party’s case, and on which . . . [it has] the burden of proof,” then the moving party is entitled to
judgment as a matter of law. Celotex Corp., 477 U.S. at 322-23. Further, in deciding the merits
of a party’s motion for summary judgment, the court’s role is not to evaluate the evidence and
decide the truth of the matter, but to determine whether there is a genuine issue for trial. Anderson,
477 U.S. at 249. The nonmoving party cannot defeat summary judgment simply by asserting that
certain evidence submitted by the moving party is not credible. S.E.C. v. Antar, 44 F. App’x. 548,
554 (3d Cir. 2002).
III.

DISCUSSION
A. Section 1983 Analysis
Section 1983 “does not, by itself, confer any substantive rights; it only serves to enforce

rights granted under the Constitution or federal law.” Burns v. City of Bayonne, No. 12-6075,

2014 U.S. Dist. LEXIS 130872, at *22 (D.N.J. Sept. 16, 2014); Baker v. McCollan, 443 U.S. 137,
145 n.3 (1979). To establish a prima facie case under § 1983, “a plaintiff must show that the
defendants, acting under color of law, violated the plaintiff’s federal constitutional or statutory
rights, and thereby caused the complained of injury.” Mayer v. Gottheiner, 382 F. Supp. 2d 635,
647 (D.N.J. 2005) (citing Elmore v. Cleary, 399 F.3d 279, 281 (3d Cir. 2005)). To establish that
a defendant violated a right secured by the Constitution, a plaintiff must demonstrate that the
defendant deprived it of such right as charged in the complaint. Salerno v. O’Rourke, 555 F. Supp.
750, 757 (D.N.J. 1983); Downey v. Coalition Against Rape and Abuse, Inc., 143 F. Supp. 2d 423,
437 (D.N.J. 2001) (quoting Cty. of Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998)) (A plaintiff
must “identify the exact contours of the underlying right said to have been violated.”).
Here, it is undisputed that Defendant, City of Englewood, New Jersey, was acting under
the color of state law when it adopted the Ordinance. Additionally, this Court finds that the facts
recited above form the basis of Plaintiff’s § 1983 claims that the Ordinance violates her rights
under the First Amendment and the New Jersey Constitution.
B. The First Amendment
The First Amendment to the U.S. Constitution provides that “Congress shall make no law
. . . abridging the freedom of speech . . . or the right of the people peaceably to assemble.” U.S.
Const. amend. I. Plaintiff alleges that the Ordinance is restrictive under the First Amendment
because it deprives “her freedom of speech while in a traditional public forum, including . . . her
right to distribute literature and rosaries and have conversations with interested individuals” and
“her freedom of assembly and association while in a traditional public forum.” (Compl. ¶¶ 71,
75.)

1. Freedom of Speech
The Supreme Court has set forth the following three-pronged analysis to determine whether
a litigant’s free speech rights have been violated under the First Amendment: (1) “whether the
speech is protected by the First Amendment;” (2) “determining the nature of the forum;” and (3)
“whether the government’s justifications for exclusion from the relevant forum satisfy the requisite
standard.” Marcavage v. City of Phila., 778 F. Supp. 2d 556, 564 (E.D. Pa. 2011) (quoting
Cornelius v. NAACP Legal Defense and Educ. Fund, Inc., 473 U.S. 788, 797 (1985)). Plaintiff
has submitted facts sufficient to establish the first two prongs under Cornelius. Defendant does
not challenge the fact that the speech at issue is protected under the First Amendment, or that its
Ordinance suppresses speech in a traditional forum. Therefore, this Court considers only whether
the government’s justifications for exclusion from the relevant forum satisfy the requisite standard,
which, in this case, is intermediate scrutiny.
When a statute is content-neutral, courts apply intermediate scrutiny and ask whether it is
“narrowly tailored to serve a significant governmental interest.” Bruni, 824 F.3d at 363-64
(quoting Madsen v. Women’s Health Ctr. Inc., 512 U.S. 753, 764 (1994)). The Ordinance is
deemed content-neutral because it regulates the place where Plaintiff may engage in sidewalk
counseling outside of the Clinic. See Rappa v. New Castle Cty., 18 F.3d 1043, 1053-54 (3d Cir.
1994) (explaining that a statute is content-neutral if it “merely restricts the total quantity of speech
by regulating the time, the place, or the manner in which one can speak”). The Ordinance explicitly
prohibits any person 1 within the City of Englewood from knowingly entering or remaining “on a
public way or sidewalk adjacent to a health care facility or transitional facility within a radius of

1

Although the Ordinance carves out exceptions for law enforcement and employees or agents of the facility acting
within the scope of their employment, these exceptions do not apply to Plaintiff or others similarly situated. See
Englewood City Code § 307-3(B)(1)-(4).

eight feet of any portion of an entrance, exit, or driveway.” See Englewood City Code § 307-3
(emphasis added). Importantly, the parties agree that the Ordinance is content-neutral.
The narrowly-tailored requirement guards against both censorship by the government, but
also against attempts to silence speech for the sake of convenience. McCullen, 134 S. Ct. at 253435. By demanding narrowly-tailored means, intermediate scrutiny prevents the government from
“too readily sacrificing speech for efficiency.” Id. (internal quotations omitted). The means
employed need not be the least restrictive or least intrusive options available. However, in light
of the First Amendment interests at stake, the government is required to demonstrate “its serious
consideration of, and reasonable decision to forego, alternative measures that would burden
substantially less speech.” Bruni, 824 F.3d at 367. Moreover, it is the government’s burden to
show that alternative measures would fail to achieve the government’s interests, “not simply that
the chosen route is easier.” Id. (internal quotations omitted). For the reasons set forth below, this
Court finds that the Ordinance is not narrowly tailored to serve a significant government interest.
i.

The Ordinance is Overbroad 2

Defendant did not create a targeted statute to address the specific issue of congestion or
militant and aggressive protestors outside of the Clinic. Instead, Defendant created a sweeping
regulation that burdens the free speech of individuals, not just in front of the Clinic, but at health
care and transitional facilities citywide. To meet the narrowly-tailored requirement, Defendant
must create an Ordinance that targets the exact wrong it seeks to remedy. See Frisby v. Schultz,
487 U.S. 474, 485 (1988) (“[A] statute is narrowly tailored if it targets and eliminates no more
than the exact source of the evil it seeks to remedy.”). Here, Defendant did not create the

2

Defendant’s argument, that Plaintiff’s overbreadth claim was never asserted in her Complaint and is premature, is
without merit. (Def.’s Opp’n Br. at 32.) Based on the allegations in her Complaint, this Court finds that Plaintiff
did assert that the Ordinance was overbroad. (See Compl. ¶¶ 66, 69.)

Ordinance with reasonable specificity to target the aggressive conduct taking place in front of the
Clinic. See Coates v. City of Cincinnati, 402 U.S. 611, 614 (1971). Moreover, because the record
is devoid of any evidence of congestion or militant and aggressive protestors congregating outside
of other health care and transitional facilities in Englewood, the Ordinance is overbroad. See
Stevens, 559 U.S. at 473 (holding that a statute is overbroad and unconstitutional under the First
Amendment where “a substantial number of its applications are unconstitutional, judged in relation
to the statute’s plainly legitimate sweep”). Applying the Supreme Court’s reasoning in McCullen,
it can hardly be argued that the Ordinance is narrowly tailored. As in McCullen, the Ordinance
creates a buffer zone around all health care facilities in the City, despite the fact that the evidence
shows that the Ordinance was adopted in response to protestors outside of one specific health care
facility – the Clinic. On this ground alone, Defendant’s Ordinance violates the First Amendment.
ii.

Less Restrictive Means Were Available

As an initial matter, Defendant bears the burden to show that alternative measures would
fail to achieve its goal. Bruni, 824 F.3d at 367. Defendant’s attempt to place the burden on Plaintiff
to show she has not been affected is misplaced. Defendant did not employ alternative, less
restrictive means that were available. Instead, Defendant puts forth speculative assertions that it
tried and/or seriously considered less restrictive alternatives, such as increased police presence and
injunctive relief, prior to adoption of the amended Ordinance. (Def.’s Opp’n Br. at 23-34.) Even
“drawing all justifiable inferences in favor of Defendant,” the record does not support that
Defendant seriously tried or considered any less restrictive alternatives. Smith, 629 F. App’x at
404. Defendant does not “point to concrete evidence” that it seriously considered alternative
measures, and reasonably rejected them. Black Car Assistance Corp., 351 F. Supp. 2d at 386; see
also McCullen, 134 S. Ct. at 2539. Indeed, Defendant did not prosecute any protestors for

activities taking place on the sidewalk outside of the Clinic in the five years prior to the adoption
of the Ordinance; and Defendant did not seek injunctive relief against individuals whose conduct
was the impetus for the Ordinance.
Moreover, Defendant fails to provide any reliable documentation or support for its
assertion that although it “increased patrols of the . . . Clinic on Saturday mornings and on
weekends . . . the City did not have the resources to have a continuous [police] presence at the
site.” (Def.’s Opp’n Br. at 28.) At deposition, Defendant’s City Manager, Timothy J. Dacey,
admitted that the City never undertook a cost study to determine the resources the City would need
to pay for additional police coverage in front of the Clinic. (Dacey Dep. at 14:11-15:12.) Thus,
Defendant cannot make a good-faith argument that it seriously considered and employed
alternative measures before adopting the Ordinance.
For the foregoing reasons, the Ordinance violates the First Amendment. 3 Plaintiff’s motion
for summary judgment as to her freedom of speech claim under the First Amendment is granted.
2. Freedom of Assembly
The right to freely assemble on the public street and sidewalks is also afforded maximum
constitutional protection. McTernan v. City of York, PA., 564 F.3d 636, 645 (2009). As described
above, courts apply intermediate scrutiny to content-neutral statutes when assessing whether the
statute violates the First Amendment. Because this Court finds that the Ordinance is not narrowly
tailored, Plaintiff’s motion for summary judgment as to her freedom of assembly claim is granted.

3

This Court notes that the size of the buffer zone is not dispositive because Defendant has failed to meet its burden
and show that the Ordinance is narrowly tailored to serve a legitimate governmental interest.

C. New Jersey Constitution
For all of the reasons set forth in this Court’s analysis under the First Amendment of the
U.S. Constitution, the Ordinance also violates the New Jersey Constitution. N.J. Const. art. I, para.
6; Twp. of Pennsauken v. Schad, 733 A.2d 1159, 1169 (N.J. 1999). Like the U.S. Constitution, the
N.J. Constitution protects freedom of speech from government interference. N.J. Const. art. I,
para. 6 (“Every person may freely speak, write, and publish his sentiments on all subjects, being
responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of
speech or of the press.”). Because the New Jersey Constitution is “generally interpreted as coextensive with the First Amendment, federal constitutional principles guide the [c]ourt’s analysis.”
Schad, 733 A.2d at 1159. Therefore, Plaintiff’s motion for summary judgment as to her freedom
of speech claim under the New Jersey Constitution is granted.
IV.

CONCLUSION
For the reasons stated above, Plaintiff’s Motion for Summary Judgment is GRANTED.

Defendant’s Cross-Motion for Summary Judgment is hereby DENIED as moot. An appropriate
Order follows this Opinion.

s/ Susan D. Wigenton
SUSAN D. WIGENTON
UNITED STATES DISTRICT JUDGE

Orig:
cc:

Clerk
Magistrate Judge Leda D. Wettre
Parties