Watchtower Bible And Tract Society of New York et al v. Municipality of Aguada et al

Filing 189

ORDER GRANTING DECLARATORY AND PERMANENT INJUNCTIVE RELIEF. Signed by Judge Gustavo A. Gelpi on 7/20/2016. (MET)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF PUERTO RICO

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WATCHTOWER BIBLE TRACT
SOCIETY OF NEW YORK, INC., et al.,
Plaintiffs,
CASE NO. 16-1207 (GAG)
v.
MUNICIPALITY OF AGUADA, et al.,
Defendants.

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ORDER GRANTING DECLARATORY AND PERMANENT INJUNCTIVE RELIEF

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On February 4, 2016, Watchtower Bible And Tract Society of New York and

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Congregación Cristiana de los Testigos de Jehová (collectively “Plaintiffs”) filed suit against the

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following Municipalities: Aguada, Aguas Buenas, Añasco, Arecibo, Barceloneta, Cabo Rojo,

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Camuy, Canóvanas, Carolina, Cataño, Ceiba, Cayey, Cidra, Coamo, Corozal, Fajardo, Florida,

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Guánica, Guayama, Hatillo, Hormigueros, Humacao, Isabela, Juana Díaz, Juncos, Las Piedras,

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Loíza, Luquillo, Manatí, Mayagüez, Naguabo, Patillas, Peñuelas, Río Grande, Salinas, San

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Germán, San Lorenzo, Toa Alta, Toa Baja, Vega Alta, Villalba and Yabucoa (hereinafter

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“Defendant Municipalities”), alleging violations of Jehovah’s Witnesses’ right to free speech and

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exercise of religion, under the First and Fourteenth Amendments of the Constitution of the United

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States, pursuant to 42 U.S.C. § 1983. (Docket No. 42).

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On February 10, 2016, the Court ordered Municipal Defendants to show cause whether
they consented to the implementation of the Watchtower Phase I Directives; or if they did not

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Civil No. 16-1207 (GAG)

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consent, and therefore opted to litigate their case, answer the complaint or move to dismiss by the

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same date. (Docket No. 14 at 16.) The Court cautioned the defendant municipalities of the lack

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of likelihood of success that they had in this litigation, if they decided to contest the Watchtower I

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directives. Subsequently the Court issued a second and final show cause order in which it directed

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the Defendant Municipalities to show cause as to why permanent injunctive relief identical to the

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Watchtower Phase I Directives should not be ordered. (Docket No. 143.)

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The Court notes the defendant municipalities’ motions in compliance expressing their

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consent to the implementation of the Watchtower Phase I directives. (Docket Nos 145, 148, 150,

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151, 152, 153, 154, 155, 156, 157, 161, 162, 163, 164, 167). Notwithstanding, some urbanizations

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petition the Court to modify the Phase I directives. The court cannot create different remedial

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schemes throughout the island. For example, the Municipality of San Juan cannot be subject to a

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different constitutional regime than the Municipality of San Germán. Accordingly, the proposals

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requesting variations of the conditions established in Watchtower I are unacceptable. All requests

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for variations and/or modifications of the Watchtower Phase I directives are thus, hereby denied.

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I.

WATCHTOWER PHASE I DIRECTIVES

On February 7, 2011, the United States Court of Appeals for the First Circuit remanded this
case to this Court to assure that defendant municipalities (“Municipalities”) and urbanizations
allow Jehovah’s Witnesses to enter urbanizations to engage in constitutionally protected activity.
Watchtower Bible and Tract Soc’y of New York v. Sagardía de Jesús, et al., 634 F.3d 3 (1st Cir.
2011), reh’g denied, 638 F.3d 81 (1st Cir. 2011), cert. denied, 132 S.Ct. 549 (2011). Although the
First Circuit found the Commonwealth’s Controlled Access Law of 1987, as amended, to be
constitutional on its face, it nonetheless found the current regime, as applied, to unreasonably
infringe on Jehovah’s Witnesses’ right to access public streets within controlled access

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urbanizations. See Id. (finding Puerto Rico’s control access law constitutional as applied and

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recognizing that Jehovah’s witnesses are allowed to enter urbanizations to engage in

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constitutionally protected activity); Watchtower Bible and Tract Soc’y of New York v. Mun. of

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San Juan, 773 F.3d 1 (1st Cir. 2014) (affirming the District Court’s remedial scheme crafted on

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remand) cert. denied, 135 S. Ct. 2395 (2015), and Civil Case No. 04-1452, Docket Nos. 710

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(granting declaratory injunctive relief on remand); 718 (entering judgment); 904 (reiterating First

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Circuit’s recognition of Plaintiffs’ constitutionally protected right to engage in door-to-door

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ministry); 978 (amended partial judgment as to unmanned urbanizations); 1074 (Order

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summarizing the law and court Orders regarding the right of Jehovah’s Witnesses to access public

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streets in gated communities in Puerto Rico, 2013 WL 1908307 (D.P.R. May 6, 2013)); 1173

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(Certification of private roads issue to Puerto Rico Supreme Court, 2013 WL 2554879 (D.P.R.

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2013)); 1264 (imposing sanctions against Municipalities for non-compliance); 1478 (second

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amended partial judgment on remand); 1721 (addressing Ponce and Estancias del Golf Club’s

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private roads argument).

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Directives.”

These shall be collectively referred to as “Watchtower Phase I

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The rulings of the First Circuit and this Court pertain to a single legal issue, namely,

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Jehovah’s Witnesses’ right to engage in activity protected by the First Amendment in public streets

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located within controlled access communities throughout the various municipalities. The First

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Circuit’s mandate constitutes the applicable constitutional federal “law of the land.” It is the

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controlling law in the District of Puerto Rico, thus, under the doctrine of stare decisis, the

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controlling law must be applied, absent convincing argument to the contrary —something that has

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not occurred.

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II.

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It is undisputed that: 1) In every municipality there currently exist manned and unmanned

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gated urbanizations operating pursuant to controlled access permits issued by the various

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municipal defendants; 2) By virtue of law, the municipalities approve the controlled access permits

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within their geographic limits; 3) Each municipality has an ongoing duty to ensure that the First

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Amendment is respected in urbanizations founded under their auspices. See Watchtower, 773 F.3d

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at 9. None of the defendant municipalities here dispute that Jehovah’s Witnesses’ access to gated

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urbanizations has been denied and/or restricted.

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REMEDIAL SCHEME

In light of the above, the Court finds no reason why the requested declaratory and
injunctive relief sought by Plaintiffs should not be granted.
Accordingly, the Court, in light of its authority under Article III of the Constitution of the

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United States and the Declaratory Judgment Act, 28 U.S.C. § 2201, and FED. R. CIV. P. 65 hereby

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DECLARES and ORDERS the following:

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1. All defendant municipalities and gated urbanizations within are permanently

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enjoined and ordered to immediately comply with all the Watchtower Phase I

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Directives. This means that Jehovah’s Witnesses must be provided the same access to

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urbanizations as residents at all times.1

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2. Further, within forty-five (45) days from the entry of this Order, to wit, September 6,

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2016, each Defendant Municipality shall comply with the following instructions and

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certify to the Court the following:

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In its Order at Docket No. 14, the Court addressed, for purposes of issuing its TRO, the factors
applicable to injunctive relief. Said analysis remains unchanged.
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A. Each defendant municipality shall provide a list of all urbanizations within its

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geographic limit that operate a controlled access gate. The list shall include the

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names of the urbanizations and if it operates a manned or unmanned gate.

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B. Manned gates:
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The Municipalities must ensure that all their urbanizations provide

entry to Jehovah’s Witnesses who disclose their purpose and identity.
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Each Municipality shall certify within 45 days from the entry of

this Order the actions it has taken to implement this Order.
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Also, Municipal defendants will certify an action plan that is

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immediately effected to assure that any Jehovah’s Witnesses denied

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access be granted entry promptly, within a reasonable time. For

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example, a municipal police hotline, or similar solution.

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undersigned recommends the defendant municipalities use as an

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example San Juan’s action plan from Watchtower Phase I. (See e.g.,

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Docket Nos. 858, 962, 965.)

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4)

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The Municipal Defendants will also certify what actions will be

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taken against urbanizations that fail to follow their instructions and/or

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the Court’s directives. These actions may include the imposition of

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sanctions and/or the revocation of the controlled access permit, as

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provided by the Commonwealth’s Controlled Access Law.

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5)

Notwithstanding, even within this forty-five (45) day period,

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Jehovah’s Witnesses must be granted access within manned gated

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urbanizations.

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C. Unmanned gates:

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1) All municipal defendants shall collect and deliver to Plaintiffs a

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means of access to all unmanned urbanizations located within their

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municipality. Depending on the means of access, each urbanization

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shall deliver to Plaintiffs a physical key, an access code, beeper, or

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other device necessary to permit entry to the urbanization. The means

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of access provided to Plaintiffs must be equal to that of the residents of

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those urbanizations and must grant Plaintiffs unfettered access to the

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urbanizations, i.e., without restrictions.

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2)

Plaintiffs shall designate a representative and provide each defendant

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municipality the representative’s contact information, no later than

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August 15, 2016.

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3)

Defendants must provide the stated means of access to Plaintiffs no

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later than 30 days after Plaintiffs designate their representative. Any

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municipality that has not complied with this order as of said date shall

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be fined $100 for each day until compliance with this order.

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4)

Plaintiffs, acting under strict orders from the court, are to maintain

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the keys, beepers and access codes for the sole purpose of expressing

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their faith. Plaintiffs are not to share the keys, beepers or access codes

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with any other party, person or organization. Violations of this order

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shall be deemed as contempt of court and shall be dealt with

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accordingly.

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Civil No. 16-1207 (GAG)

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Any urbanization that changes its means of access must notify the

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municipality in which it is located and Plaintiffs, prior to executing the

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change, except upon an emergency. The municipality shall be

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responsible for delivering the new means of access to Plaintiffs within

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seventy-two (72) hours of the change, not including holidays or

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weekends.
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The court notes the inherent cooperation that will be necessary in

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order to implement these directives. All parties have demonstrated

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their willingness to work together in resolving these thorny issues. The

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municipalities are expected to work in good-faith to ensure every

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urbanization complies with the court’s orders. The Jehovah’s

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Witnesses are equally expected to respect the court’s orders and to also

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respect property owners’ wishes. If a property owner places a sign on

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his property stating “No Trespassing,” or its equivalent, the Jehovah’s

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Witnesses are expected to respect the wishes of the property owner.

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The pronouncements of this Court herein are consonant with the First Circuit’s decision, as

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well as the Watchtower Phase I Directives. The Court expects all Municipal defendants to, within

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the allotted time (generic requests for continuances will not be looked upon favorably), comply

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with this order. Failure to do so shall result in immediate action, which may include sanctions,

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contempt, and the Court issuing any necessary relief, such as the immediate opening or removal of

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controlled accesses.

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More so, as to all existing unmanned urbanizations, the court finds the remedy it has issued

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allows Jehovah’s Witnesses the same access to unmanned urbanizations as person residing therein,

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twenty-four hours a day, seven days a week, and every day of the year. Thus, Jehovah’s

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Witnesses’ rights of religious exercise and expression are, by virtue of the court’s ruling, not being

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limited by any time, place or manner restrictions.

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The Court shall retain jurisdiction to enforce its declaratory judgment. 28 U.S.C. § 2202.
The Municipalities subject to this order are the following:
1. Aguada
2. Aguas Buenas
3. Añasco

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4. Barceloneta

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5. Cabo Rojo

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6. Camuy
7. Canóvanas

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8. Carolina

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9. Cataño

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10. Cayey
11. Ceiba

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12. Cidra

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13. Coamo

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14. Corozal
15. Fajardo

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16. Guayama

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17. Hatillo

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18. Hormigueros
19. Humacao

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20. Isabela

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21. Juana Diaz

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22. Juncos
23. Las Piedras

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24. Loíza

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25. Luquillo
26. Manatí
27. Mayagüez

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28. Naguabo

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29. Patillas

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30. Peñuelas
31. Río Grande

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32. Salinas

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33. San Germán

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34. San Lorenzo
35. Toa Alta

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36. Toa Baja

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37. Vega Alta

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38. Villalba
39. Yabucoa

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In addition, the following municipalities are in default, and thus also subject to all
directives herein.
1. Florida
2. Guánica

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3. Arecibo
SO ORDERED.

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In San Juan, Puerto Rico this 20th day of July, 2016.

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s/ Gustavo A. Gelpí

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GUSTAVO A. GELPI

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United States District Judge

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