Jacksonville Consent Order in Spano Case

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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA

DR. BARTOLO SPANO, et aI,Plaintiffs,

vs.CITY OF JACKSONVILLE, et aI.,

Defendants.

))))) CaseNo.4:11-cv-00187-BO)) District Judge Terrence W. Boyle))))

CONSENT ORDER

A. WHEREAS, on November 2, 2011, plaintiffs filed a complaint and motion forTRO/preliminary injunction alleging violations of the 1st and 14th Amendments of the U.S.Constitution, 42 U.S.C. 1983, and Article I, 13 and 14 of the North Carolina Constitution inthe denial by defendants of issuance ofa permit to assemble, demonstrate and/or picket(hereinafter "assemble") at and around the Crist Clinic in Jacksonville, N.C.;

B. WHEREAS, the Court set a hearing on plaintiffs' motion for a preliminaryinjunction on November 21,2011, at which time the parties presented to the Court an agreedPreliminary Injunction Order;

C. WHEREAS, the Court entered a Preliminary Injunction Order in this case onNovember 23,2011, directing the parties "to report on the status of their effort to develop aConsent Order under which the City would undertake to revise the Ordinance with the Court'ssupervision" ;

D. WHEREAS, this Consent Order reflects the parties' efforts to comply with theCourt's Preliminary Injunction Order;

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public way normally used or reserved for pedestrian movement, and not used primarily forvehicular parking or moving traffic."

b. Defendants will amend Sec. 23-60 ("Exceptions") subsection (4) toprovide that the ordinance shall not apply to "Spontaneous events occasioned by news or affairscoming into public knowledge within three (3) days of such public assembly, provided that itwas not contemplated by any of its participants before the occurrence of the underlying news orpublic affairs development that served as the impetus for the assembly."

c. Defendants will amend Sec. 23-61 ("Application") to provide, insubsection (b), that the minimum time for filing an application for a permit shall be five (5) daysrather than ten (10) days. In subsection (c), the minimum time for filing an application for apermit shall be changed from sixty (60) to thirty (30) days. In subsection (d), item (5) will bemodified by adding a comma after the word "which"; item (9) will be modified by striking thewords "units of"; item (10) will be modified to read, "The intervals of space to be maintainedbetween any animals, vehicles or motorized units participating in a parade;"; and item (11) willbe modified to change "his" to "hislher".

d. Defendants will amend Sec. 23-62 ("Police protection") to read, in thesecond to the last sentence in subsection (a): "If additional police protection for a parade orpublic assembly is deemed necessary by the chief ofpolice, (s)he shall so inform the applicantfor the permit."

e. Defendants will amend Sec. 23-63 ("Standards for issuance") to read asfollows:Sec. 23-63 - Conditions and Standards for Issuance(a) Conditions

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The chief of police shall issue a permit upon submission of the completed application, unless(s)he finds one or more of the following conditions present:

(1) The City cannot provide for the safe and orderly movement of the parade or publicassembly, and of other pedestrian or vehicular traffic contiguous to its route orlocation;

(2) The City cannot provide for conduct of the parade or public assembly withoutrequiring the diversion of so great a number of city police officers to police properlythe line of movement and the areas contiguous thereto, thereby preventing normal

police protection of the city;(3) The applicant for the parade or public assembly permit has not agreed to abide by the

standards set forth in this ordinance.(b) StandardsAdditionally, the following standards are applicable to the chief of police's decision to issue aparade or public assembly permit:

(1) The parade or public assembly is not for the primary purpose of advertising anyproduct, goods or event that is primarily for private profit, and the parade or publicassembly itself is not primarily for profit. The prohibition against advertising anyproduct, goods or event shall not apply to signs identifying organizations or sponsorsfurnishing or sponsoring exhibits or structures used in the parade or public assembly;

(2) No parade or public assembly permit application for the same time and location isalready granted or has been received and will be granted;

(3) The police resources required for another parade or public assembly, as set forth insubsection (2) of this section, are not so great that in combination with the subsequent

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proposed application, the resulting deployment of police services would have animmediate and adverse effect upon the welfare and safety ofpersons and property;

(4) Adequate sanitation and other required health facilities are or will be made availablein, or adjacent to, any parade or public assembly areas;

(5) There are sufficient parking places near the site of the parade or public assembly toaccommodate the number of vehicles reasonably expected; and

(6) A parade 0) is scheduled to move from its point of origin to its point of terminationexpeditiously and without unreasonable delays en route; and (ii) will not undulyinterfere with proper fire and police protection of, or ambulance service to,contiguous areas due to its concentration ofpersons, animals and/or vehicles.

f. Defendants will amend Sec. 23-65 (''Notice of denial of application") asfollows: The section heading will be changed to read to "Notice of action on application" andthe last sentence of the section will be modified to read, "I f the chief of police disapproves theapplication, (s)he shall notifY the applicant either by personal delivery or certified mail at leastforty-eight (48) hours prior to the event of the action and state the reasons for a denial."

g. Defendants will amend Sec. 23-70 ("Prohibitions") as follows: renumberexisting subsection (7) to subsection (8), and insert a new subsection (7) to read: "It shall beunlawful for any person to erect or place any structure, whether permanent or temporary, on acity street, sidewalk, or right-of-way unless advance approval for the erection or placement of the

structure is obtained from the city councilor city manager. Signage that is otherwise compliantwith subsection (5) of this section is not considered a "structure" which would require anyadditional approvals."

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5. In keeping with the revised definition of "public assembly" noted in paragraph4(a), herein, the Defendants acknowledge and agree that in the areas proximate to the CristClinic for Women at 250 Memorial Drive in Jacksonville, public assemblies that gather pursuantto the Parade and Public Assembly Ordinance, or under its "small group exception," are allowedto be present in or on all of the sidewalks and public ways normally used or reserved forpedestrian movement, and not used primarily for vehicular parking or moving traffic.Defendants acknowledge and agree that some of the "public ways" proximate to the Clinic areunpaved, on either side of Memorial Drive, and that public assemblies proximate to the Clinicare allowed to access these sidewalks and "public ways" subject to application of the modifiedOrdinance as recited herein and any other traffic and safety regulations that would be equallyapplicable to any other permitted demonstrations in the City's jurisdiction.

6. Within ten (10) days of entry of this Consent Order defendants will pay $20,000in attorneys' fees to plaintiffs in recognition ofwork performed in connection with the lawsuitand entry of this Consent Order. The parties agree that no further attorneys' fees or costreimbursements shall be sought by plaintiffs if the Preliminary Injunction Order is dischargedand the lawsuit dismissed, as provided, below, in paragraph 7.

7. After the expiration of thirty (30) days following the date of formal enactment ofthe revised Ordinance as agreed in this Consent Order, the Preliminary Injunction Order shall bedischarged and the captioned lawsuit shall be dismissed without prejudice, with the Court toretain jurisdiction to enforce this Consent Order. Until that time, the Preliminary InjunctionOrder shall remain in effect.

8. This instrument reflects the entire agreement between the parties.

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So ordered t h i s ! t day ofMarch, 2012.

' J . ~ L v . [ S ~ United States District JudgeAgreed and Consented to:For Plaintiffs:Thomas More Society Deborah Dewart, Esq.By: /s/ Peter C. Breen By: /s/ Deborah Dewart

Peter C. Breen Deborah Dewart N.C. #30602Executive Director & Legal Counsel 620 E. Sabiston Drive29 S. LaSalle, Ste 440 Swansboro, NC 28584-9674Chicago, IL 60603 Direct: (910) 326-4554Direct: (312) 782-1680 Fax: (877) 326-4585Fax: (312) 782-1887 Email: [email protected] Appearance for Plaintiffs (LR83.1e) Attorney for PlaintiffsEmail: pbreen@)thomasmoresociety.org

By: /s/ Thomas OlpThomas G. OlpCounsel for Thomas More Society2111 Comprehensive DriveAurora, IL 60505Direct: (630) 692-2402Fax: (630) 851-5040Special Appearance for Plaintiffs (LR83.1e)Email: [email protected]

For Defendants:Smith Moore Leatherwood LLPBy: /s/ Bradley M. Risinger

Smith Moore Leatherwood LLP434 Fayetteville Street, Ste 2800Raleigh, NC 27601Direct: (919) 755-8848Fax: (919) 838-3144Email: [email protected] for Defendants

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Jacksonville Consent Order in Spano Case